Landowners should have an understanding of Section 338(1)(a) of the RMA and the restrictions of Part 3 as these create liability for landowners. Offences under the RMA have substantial penalties for individuals and companies. Offences under the RMA can occur either from acts (i.e. by actively carrying out some works such as excavation in a riverbed) or by omissions (i.e. by failing to do something like adequately managing storage of fuel or other contaminants on the property which contributes to a discharge).
A landowner could offend under the RMA by permitting something to occur on their property that breaches the restrictions in Part 3, or by failing to take action, put measures in place or provide against something happening on their property that breaches those restrictions. In some situations, failing to investigate what is occurring on the property and to take appropriate preventative steps could amount to permitting a contravention of the RMA.
RMA offences are strict liability offences under Section 341 of the RMA (for offences under subsections 9 and 11-15). This means that it is not necessary to prove that the landowner intended to commit that offence, for offences under subsections 9 and 11-15.
Because of Section 340, where an offence is committed against the RMA by any person acting as the agent (e.g. employee, contractor) for another person, that other person is liable to the same extent as if they had personally committed the offence.
However, the RMA also makes defences available to landowners in certain circumstances. The defences must be made out with evidence.
- There is a defence if the landowner:
- Could not have reasonably known that the offence was to be committed on their property; or
- Took all reasonable steps to prevent the commission of the offence; and
- Took all reasonable steps to remedy any effects from the act or omission giving rise to the offence.
- Regarding strict liability under Section 341, a landowner has a defence if the act or action was necessary for the purposes of saving or protecting life or health, preventing serious property damage or avoiding adverse effects on the environment. The conduct of the landowner has to have been reasonable and the effects of the actions taken need to have been adequately mitigated or remedied by the landowner.
- There is also a defence available to a landowner if the action or event was due to an event beyond their control, such as a natural disaster or sabotage, and the event could not have been reasonably foreseen or provided against, and the effects of the action or event were adequately mitigated or remedied.
Landowners are advised to take reasonable steps to avoid offences occurring on their properties, including:
- Assessment of risk and implementation of adequate measures to address those risks;
- Adequate site supervision and oversight;
- Timely and effective reaction to any issues arising; and
- Taking all practicable steps to avoid, remedy or mitigate adverse environmental effects.
