What if an abatement notice requires you to breach the Resource Management Act?
What if an abatement notice requires you to breach the Resource Management Act?
Tuesday 15 June, 2021
Wairoa District Council (“WDC”) found itself facing a unique dilemma recently after receiving an abatement notice from the Hawke’s Bay Regional Council (“HBRC”). The first abatement notice required WDC to cease unauthorised discharge of treated wastewater between 6am and 6pm and during incoming tides. The second notice required it to cease the unauthorised discharge of treated wastewater from the emergency overflow at the town’s sewage treatment plant. Unfortunately, WDC needed a resource consent in order to comply with the abatement notice, which the HBRC had not yet granted, resulting in a classic Catch-22 situation. Accordingly, WDC appealed the abatement notices to the Environment Court and sought a stay until after the appeal.
WDC advised the Court that the existing infrastructure was unable to cope during heavy rainfall and still comply with the current resource consent. WDC had applied for resource consent for a storage capacity at its wastewater treatment plant but the application had been adjourned part-heard in November 2020, less than two months before HBRC issued the abatement notices. HBRC agreed to stay the notices for 21 days, so that the parties could discuss how to avoid, or limit, further breaches until the resource consent application was finalised.
The Environment Court agreed to grant the stay on the basis that it would be unreasonable for WDC to comply with the notices pending the appeal, and the environmental effects would be relatively minor and acceptable on a temporary basis. The Court considered that it would be preferable for the parties to work together to find a way to halt or limit discharges pending a decision on the resource consent application.
Many councils in New Zealand are facing issues caused by aging or out-of-date infrastructure and require significant capital investment to meet current standards. Failures to comply with resource consents may become more common, particularly for coastal councils struggling to deal with the effects of climate change. More councils may find themselves facing a similar dilemma, where current infrastructure forces them to breach their resource consent, while they await the outcome of lengthy resource consent application processes. However, rather than waiting until they find themselves in this situation, councils should seek advice early and look at how they can proactively manage aging infrastructure until it can be replaced.
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