Councils remain liable for compliance of contractors with the RMA
Councils remain liable for compliance of contractors with the RMA
Thursday 18 March, 2021
The recent case of Otago Regional Council v Clutha District Council [2020] NZDC 26125 confirmed that when a consent holder or land owner delegates management of its facilities to a third party it remains liable for compliance with Resource Management Act requirements and has an obligation to monitor it's delegate’s performance.
The case involved a prosecution of Clutha District Council (CDC) for discharges of wastewater to water and land, and the discharge of odour to air, from five of its wastewater treatment plants.
CDC operates 11 wastewater treatment plants within its district. Since 1 July 2019 the five treatment plants the subject of the prosecution had been managed and operated on behalf of CDC by Citycare Limited. The conditions of the resource consents for the plants required maintenance and monitoring, and that there be no objectionable odours beyond the boundary of the sites. The summary of facts for the prosecution showed that there had been no maintenance or monitoring of the plants by either the contractor or CDC since July 2019.
The Court found that there had been a systemic failure on CDC’s part to properly operate and/or monitor the operation of the five wastewater treatment plants. These failures led inevitably to discharges which exceeded a range of quality criteria which they were obliged to meet. The fact that the offending involved the breach of numerous conditions of CDC’s resource consents was a particularly aggravating factor (para 38):
Resource consents are routinely granted by consent authorities subject to conditions which seek to avoid remedy or mitigate adverse effects. There is a presumption that such conditions will be complied with. Failure to do so strikes at the heart of the resource consent system and destroys confidence which the public should have in the integrity of that system.
CDC was found to have been “reckless in the extreme” and was fined a total of $488,250 for the discharges.
The case is a reminder to councils to ensure that contracts with third parties require compliance with all relevant resource consents, including maintenance, monitoring and reporting. Notwithstanding these contracts, councils remain liable for compliance with the Resource Management Act and should have their own programmes to monitor the performance of their contractors.
Related Articles
Councils challenge to transfer of water services rejected in High Court
Thursday 30 March, 2023
When the rubber hits the road - All aboard Aotearoa's challenge
Tuesday 11 October, 2022
Declarations that an Enactment Inconsistent with Bill of Rights
Tuesday 11 October, 2022
Proposed mandatory consideration of specific Māori representation
Tuesday 11 October, 2022
New Regime for Protected Disclosures (Whistleblower legislation)
Wednesday 29 June, 2022
Operative plans and proposed plans: what to do when there is a significant policy shift?
Wednesday 30 March, 2022
Notices of requirement are relevant for resource consent applications
Wednesday 30 March, 2022
Avoidance policies reign in the wake of King Salmon, but what do they require?
Wednesday 30 March, 2022
Court gives guidance on consultation and decision-making process
Wednesday 30 March, 2022
Cultural evidence and the continued draw of the overall judgment
Tuesday 21 December, 2021
Fluoridation debate lifted from shoulders of local government
Tuesday 21 December, 2021
Will new housing density rules increase contributions for developers?
Thursday 28 October, 2021
Judicial review of Hamilton City Council's development contributions policy
Tuesday 5 October, 2021
Lease of Wanaka Airport set aside due to insufficient consultation
Tuesday 15 June, 2021
What if an abatement notice requires you to breach the Resource Management Act?
Tuesday 15 June, 2021
“No ‘wine-ing’ covenants” declined for a subdivision consent in Gibbston Valley
Tuesday 15 June, 2021
From car parking fine to judicial review of a council’s code of conduct
Tuesday 15 June, 2021
Randerson Report released: New Direction for Resource Management
Wednesday 5 August, 2020
Could companies be liable to the public for the harm caused by their emissions?
Tuesday 10 March, 2020
Avoiding double penalties when sentencing a company and director
Thursday 23 April, 2020
Can an easement be granted over an esplanade reserve for a commercial activity?
Thursday 12 December, 2019
Draft National Policy Statement for Freshwater Management 2019 for consultation
Thursday 3 October, 2019
Local authority requiring monetary contributions on designations
Thursday 20 June, 2019
Bella Vista: MBIE Report highlights failure to perform statutory functions
Tuesday 9 April, 2019
Recent decision on "affected persons" highlights the importance of context
Wednesday 28 November, 2018
High Court finds Council liable in negligence for damage from fallen tree
Thursday 27 September, 2018
Court upholds sensible approach to local authority works on private property
Tuesday 24 July, 2018
Must Councils accept an assertion that a person is ‘suitably qualified'?
Friday 9 March, 2018
