Significant fines and community service the price to pay for RMA breaches by developers

Publish Date : 23 Apr 2024
RMA breaches 3
Papatoetoe Norfolk Pine before felling
St Georges Rd Papatoetoe Small
Protected Norfolk Pine during felling process.

Auckland Council has received favourable decisions in three Auckland District Court prosecutions where companies or individuals have breached the Resource Management Act 1991 to the detriment of the environment.

In the first case, the alteration to a notable tree, a Norfolk Pine in St George Street, Papatoetoe by a developer in the immediate aftermath of the Papatoetoe tornado in June 2021, resulted in the tree having to be felled.

Z Ali Investments Limited and Mr Zulfika Ali were fined a total of $96,000.

Mr Kumar, a professional tree contractor of 15 years’ experience, carried out the felling after being instructed to by Mr Ali and being told the tree was not protected, was found guilty on one charge; he is awaiting sentence.

In sentencing, Judge Sheena Tepania concluded the actions of Mr Ali were deliberate and his culpability high as he was experienced in the business of earthworks and property development and was aware the tree was protected.

“The opportunistic and commercial nature of the offending supports the characterisation of Mr Ali and ZAIL’s offending as deliberate rather than reckless.

“Mr Ali’s ‘rush to judgment’ without any evidential basis for his assumption provided an opportunity for him and the company to realise their development aspirations for the site.”

Judge Tepania went onto say she hoped it was a useful reminder that a natural disaster is not an opportunity to commit offences against the RMA for commercial gain. 

The Judge concluded a strong deterrent message was necessary to reinforce compliance.

“It is important for commercial enterprises and developers to familiarize themselves with relevant rules and comply with them,” says Auckland Council’s Team Leader Investigations David Pawson.

“The behaviour of the defendant showed a total disregard for environmental rules and regulations and a lack of understanding of appropriate practices.”

In the second case Robert Noe was found guilty of one charge of breaching the Resource Management Act 1991 in that he failed to comply with an Enforcement Order issued by the Environment Court in 2020.

The offending, which began in 2019 at 2294 SH 16 in Helensville, saw tonnes of unlawful material being dumped on the property in breach of the Auckland Unitary Plan (AUP) and the Resource Management Act.

An abatement notice was issued to remediate the site because of the ongoing and serious risk to the environment and human health from asbestos exposure and concentrations of lead and zinc from the fill material leaching into groundwater. The Court found the ongoing effects on the environment were serious while the site remained unremedied.

Judge Dickey said the failure to comply with an Enforcement Order was serious.

“Mr Noe’s continued failure to comply with the Enforcement Orders is perplexing. In the face of reports which summarise the effects of the offending, and the pathways to remediation, Mr Noe continues to sit on his hands.

“I categorise his conduct as reckless, with a disregard for the consequences of his offending. I consider the need for deterrence is highly relevant.”

Mr Noe was fined $20,000 and 200 hours community work.

Auckland Council’s Team Leader Investigations David Pawson says a breach of an enforcement order, and demonstrates the courts do in fact treat these as very serious offences.

In the third case Mr Ronald Bank and Auckland Contouring and Fill Specialists (ACFS) were sentenced on one charge each of unlawfully carrying out earthworks without best practice erosion and sediment control measures in place in breach of the Resource Management Act 1991.

A dirt track.

In 2022 Mr Bank and ACFS undertook earthworks importing fill to 477 and 473 Ridge Road, Paremoremo, next to the Paremoremo Reserve and creek. This work was approved by the property owners.

The site had been subject to previous extensive modification and a prior prosecution against Mr Bank and another of his companies, Albany Earthmoving and Landscaping Services Limited;  it was also subject to ongoing enforcement orders.

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Judge Dickey found Mr Bank & ACFS were “highly culpable” and stated it was difficult to conclude the conduct was “anything other than a deliberate disregard for the rules and the environment coupled with a lack of knowledge as to how to undertake earthworks appropriately.”

“The potential for adverse effects on waterways was not in doubt. It is, perhaps, good luck and not good management that the actual adverse effects are at the lesser end of the scale.

“Having said that, sediment to waterways is a continuing problem, and mismanagement of work sites is a continuing concern. The necessity for adequate erosion and sediment measures has long been known, and failure to ensure adequate protection is inexcusable.

Mr Bank is highly culpable for this offending. Following closely on from the previous offending for largely similar failings on appropriate erosion and sediment controls adds to the Court’s concern about this offending.”

Judge Dickey added there was a heightened need for deterrence in this case given the previous offending on the same properties raising the same issues.

A fine of $40,500 was imposed.

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