RMA legal decision due within a week

Published: Thu 5 Nov 2009 03:29 PM
RMA legal decision due within a week
For immediate release: 5 November 2009
Environment Court Judge Jeff Smith is expected to deliver a decision within a week on a contentious legal issue, which has been raised in a case that Environment Bay of Plenty has brought against New Zealand’s largest forestry management consultancy, PF Olsen Limited.
The decision, which was heard in the Tauranga District Court yesterday, is expected to be considered in several other cases on the same issue which are currently before higher courts.
The issue stems from PF Olsen Limited facing two charges under the Resource Management Act 1991 (RMA) - one charge of disturbing exotic and plantation vegetation in an erosion hazard zone and one charge of discharging contaminant onto land in circumstances which may have resulted in that contaminant entering water. Both relate to a harvest area in the Waiōtahe Forest, near Ōpōtiki. PF Olsen has not entered a formal plea.
Environment Bay of Plenty Group Manager Water Management Eddie Grogan said the legal issue that has been raised is whether convictions can be recorded for offences under the RMA.
“Environment Bay of Plenty is arguing that under the RMA there is a two path course which means that we can issue an infringement notice or decide to take prosecution – the later option we only usually take for offences where there is serious environmental damage,” Mr Grogan said.
“In this particular case, we decided to take the path of prosecution against PF Olsen because of the seriousness of the offence.”
PF Olsen’s legal representation is arguing that the offence can only be dealt with as an infringement and that people found guilty of infringements cannot have a conviction recorded against them for that offence.
PF Olsen Limited’s offences relate to between 15 and 17 April 2008 when five slash piles (piles of tree limbs and bark) collapsed following heavy rainfall in the area. This resulted in large amounts of slash, debris and sediment sliding down from ridges into valleys and streams below.
On 18 April 2008, Environment Bay of Plenty received a complaint that debris from the defendant’s collapsed skid sites (level areas created by bulldozers and used for processing felled trees) had blocked streams on an adjacent property. As a result of Council’s investigation, Council alleges that the collapse of the skid sites had caused significant erosion and that at least two streams in the area were completely blocked in places and partially blocked in others with a combination of woody debris, sediment and logs.
Judge Smith reserved his decision on the legal issue raised in this case and said due to the importance of the issue he would like to give his decision within the week.
Background information
The preliminary issue considered by Judge Smith was whether convictions can be entered for environmental prosecutions under the RMA. PF Olsen contends that most offences under the RMA have been categorised as infringement offences as a result of legislative changes made to the Act in 2000. This means no convictions can be entered for infringement offences under Section 78A of the Summary Proceedings Act.
PF Olsen claims that as it had been charged with infringement offences no convictions can be entered against it. The company also claims the prosecution is a nullity because Environment Bay of Plenty did not seek leave of a District Court Registrar before bringing the prosecution, which was a requirement when issuing a summons for an infringement offence.
Environment Bay of Plenty argued that under the RMA, council had a choice whether or not to prosecute the company in the ordinary way or as an infringement offence. In this case, due to the seriousness of the offence, Environment Bay of Plenty issued the summonses in the ordinary way and not as infringement offences. Therefore convictions could be entered against the company and no leave was required from the Registrar.

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