Date: 03 March 2015
With a recovering economy and the numbers of issued building consents continuing to rise, it is timely for contractors and developers to reflect on their obligations under the Resource Management Act 1991 (RMA) and the need to ensure compliance with that act.
The construction industry is facing an increase in demand. Statistics New Zealand has recently reported that 2420 new dwellings were consented during November 2014. This is the highest number of new dwelling consents since August 2007. While Auckland (967 consents) and Canterbury (726 consents) made up the large majority of consents, five out of 16 regions consented more new dwellings in November 2014 compared to November 2013.
This increase is not restricted to the residential market. Consents for all buildings (residential and non-residential) are also following an upward trend, which totalled $1.3 billion for November 2014 ($867 million for residential work; $426 million for non-residential work).
Successful construction projects are completed on time, on budget, and in compliance with regulatory requirements. One of these requirements is the need to obtain and comply with necessary resource consents, and ensure appropriate management systems are in place to deal with unforeseen events.
First things first, the RMA is a strict liability statute. It is not necessary to prove that the defendant intended to commit the offence – the mere fact that a breach of the RMA has occurred is enough to support a prosecution.
Further, if a contractor commits an offence under the RMA, the developer/land owner will also be liable for that offence in the same manner and to the same extent as if the developer had personally committed that offence. In short, a contractor’s actions could result in its developer being prosecuted – not an ideal business model for repeat business.
Remember, a prosecution under the RMA is a criminal matter, and can result in a fine, criminal record, and possible imprisonment.
LEARN FROM THE MISTAKES OF OTHERS – RECENT CASE LAW
Auckland Council v Union Development Ltd
The Union Development case involved an inadvertent concrete slurry discharge onto land which subsequently entered a stream and killed native aquatic wildlife. Union Development was an inexperienced developer who was undertaking a three-lot residential subdivision. Resource consent and building consent had been obtained containing standard conditions, and the developer had engaged contractors to undertake various aspects of the development, including earthworks and concrete works.
The site sloped steeply down to a stream (on adjacent land). The development included a concrete retaining wall located in close proximity to the stream. Concrete pumpers were engaged to complete the works for the retaining wall.
The court acknowledged that the concrete contractors were primarily responsible for ensuring that the concrete was poured in a way that did not result in damage to the stream. Unfortunately, once the concrete had been poured, the property developer and the concrete contractors failed to check the site for any spills. The council considered it had insufficient evidence against the concrete contractors, which left the developer to face the prosecution alone.
The court also acknowledged that a property developer need not necessarily supervise a site, or check the site before leaving. Instead, this function can be delegated to a project manager. The degree of supervision required of the project manager will depend on the task being undertaken and the nature of the site.
The difficulty in this case was that the developer was inexperienced and responding to problems once they eventuated, rather than predicting what might happen.
In short, the court stressed that those who undertake property development, even on a small scale, need to make themselves fully aware of their environmental obligations, and they must actively manage the development themselves, or arrange for that management to be undertaken by a suitably qualified project manager. If the property developer is not familiar with the requirements, then the obligation is on them to employ a person who is.
Union Development was fined $42,750 which was in addition to a hefty clean-up bill.
There are some simple steps that contractors can take to reduce the risk of breaching the RMA and therefore being prosecuted, or issued with an abatement notice.
- Ensure all necessary resource consents are obtained.
- Read the building consents and resource consents and the associated conditions.
- Implement the conditions. Sediment control fences, dust control measures, noise level controls are all there for a reason. Complying with the conditions can save time, money (and reputation) over the long term.
- Make sure all employees are trained to deal with accidental spills, discharges, erosion and sediment control so that everyone on the site knows what to do and can monitor the way things are being conducted onsite.
- Hire the right person for the job and train them appropriately. Make sure your contractors (and employees) have the right qualifications and experience for the job that you need them to do.
- Assess the lay of the land – literally! Before commencing any project, it is crucial that an onsite assessment is completed. This should include assessing the topography of the land, the proximity of any water (streams, lakes, ponds etc), overflow flood paths, the location of services (sewage, water, electricity and telecommunications), and the location of any protected vegetation, archaeological or historic sites.
- Always complete a thorough check of the site during construction and at the end of every day.
- Don’t do the bare minimum. If you think that it is necessary to do something more, do it. This could save you from breaching the resource consent and/or district plan and, again, save you time, money and your reputation in the long term.
- Secure your site so that environmental damage is not caused by vandals or others.
- Nicky McIndoe and Natalie Amos