Council faces costs award for deficient prosecution

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Council faces costs award for deficient prosecution

Council faces costs award for deficient prosecution

Tuesday 5 October, 2021

Councils in New Zealand have an important role to play in upholding environmental and building standards. This may include prosecuting anyone in their district or region who is breaking the law, issuing abatement notices. However, a recent prosecution by the Canterbury Regional Council resulted in the charges being dismissed and costs and disbursements of over $110,000 being awarded against the Council, emphasizing the need for councils to conduct careful investigations before bringing charges.^{^[1]}

Background

The situation arose when a farm owner engaged Plains Irrigation to design and supply four pivot irrigators on its farm and Rooney Earthmoving to undertake associated earthworks. The farm owner was responsible for obtaining any necessary resource consents. The farm manager asked Rooney Earthmoving to straighten a section of a creek which ran through the property. Rooney Earthmoving informed the manager that consent was required and that it would not perform the work without consent. The manager approached the Council to see whether consent was needed, so Council officers visited the property in July 2018 to see what was proposed. After visiting the property, the Council issued the farm owner with an abatement notice requiring cessation of excavation and vegetation clearance around the creek and wetland areas.

The charges

After interviewing the farm manager, an employee of Plains Irrigation, and a director of Rooney Earthmoving, the Council laid seven charges under the Resource Management Act against Plains Irrigation and its employee, and Rooney Earthmoving (“the defendants”). The most serious charges related to diversion and realignment of the creek without permission. The trial was set down for March 2020, however, in February 2020, the Council re-interviewed the farm manager who disclosed that he had cleared out the creek with a front-end loader, and this was what had caused the diversion of the creek. The manager said that he had not disclosed this previously, because he had not been asked, and that he was unaware that it was an offence to work in the active flow of the creek without a resource consent.

Withdrawal of charges

As a result of the new evidence, the Council applied to withdraw the charges. The defendants opposed the application and sought dismissal of the charges and indemnity costs against the Council. The prosecutor argued that there was little practical difference between withdrawal and dismissal, as the Council was now out of time to bring fresh charges. The prosecutor also pointed out that the Council could have proceeded on five of the charges, as the new evidence only affected two charges, but had elected not to proceed after reviewing the case in light of the Solicitor-General’s prosecution Guidelines. The Court dismissed the charges against the defendants, accepting that dismissal can be important to a defendant, as it operates as a deemed acquittal, even if the time limit for bringing fresh charges has expired.

Recovery of costs

The Court also agreed that the defendants were entitled to recover some of their costs from the Council, as the charges might never have been brought if the Council had conducted a full and careful investigation. The Court accepted that there was evidence that an offence had been committed but held that the Council’s process for identifying the responsible individuals had been deficient, amounting to a significant error in the investigation. The Court observed that there was no material to suggest that the Council had given any consideration to proceeding by way of an abatement notice or enforcement order. The Court noted that both methods can achieve the desired environmental outcomes, even if they do not result in a conviction or fine.

The Court declined to award indemnity costs against the Council, as there was no evidence of bad faith, but held that there were special features justifying awarding more than scale costs, in particular the need for prosecutors to carefully examine informants’ evidence. The Court agreed to award costs based on the daily recovery rate for District Court civil proceedings, resulting in an award 11 times greater than what they would have received under the criminal proceedings rate.

Recommendation for councils

Before bringing criminal charges, councils must conduct a thorough investigation and be satisfied that there is a sufficient evidential basis for the charges. In light of the District Court’s comments, councils may wish to consider whether an abatement notice or application for an enforcement order would achieve the desired outcome, and include the written outcome of this decision and reasons for it as part of the court file.

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