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.
