Enforcement policy
The starting point is to understand what level of severity the suspected offence has. In our case, the Council classified the suspected offence a minor non compliance - action not required. Firstly, it means that it is discretionary for the council to start investigating the matter, carefully considering the public interest in doing so against the use of council resources and the effect the suspected activity has on the sustainable use of natural and physical resources. It also needs to be reflecting current priorities a council is setting for achieving the best outcome for the social, economical, environmental and cultural wellbeing for the community it is serving.
So, when a council finds merit in pursuing the complaint, it needs to look into its Enforcement Policy and the laws governing their powers and duties in exercising their role. This is so that it can be understood which tools are available and appropriate given the matter in question and the particular circumstances. A council usually has access to providing education on matters when there is uncertainty about an issue. In our case, the Tasman District Council was aware latest since 2019 that the public asks what the council considered “fixed to land”.
Power of entry for inspection (section 332 RMA)
However, instead of providing responses to the public, the council chose to investigate by intending to inspect the tiny home on wheels, relying on section 332 of the RMA which grants powers of entry to duly appointed officers on behalf of the council. The problem, however is, that these powers authorise entry to any place or structure, but does explicitly exclude any dwelling house. Inspections of vehicles are also not part of these powers. The Ministry of environment published their best practice guide and write:
Authority to enter a dwelling house is explicitly excluded from section 332. It is important to note that a dwelling house can have quite a broad application and can include such things as caravans, the bunkhouse of a commercial fishing vessel, or anywhere a person might expect to have privacy associated with personal living space.
It is a valuable resource and Part 6 from page 56 onwards explains matters in more detail.
What we see is that the issue of concern in relation to inspection is “the reasonable expectation of privacy”. In addition, many people may be concerned that the council is allowed to go fishing by not proving a clear description of what it is they are investigating. We suggest it would be helpful to approach affected individuals in a manner that provides for transparency.
In our case, we were never asked if someone was living in the mobile home. Instead, the council confirmed in court that one officer observed the property over a period of nine months, concluding it was permanently lived in. Another officer confirmed via diary entries more that 60 instances of observation over a period of three months. On some days, there were two entries, which meant that the officer was observing the property about every other day. We communicated our concern about the frequent observations of our property by the Tasman District Council and requested them to stop as this is impacting our life. However, the officer testified in court he continued his frequent observation up until the hearing adding this to his affidavit, which meant another seven months of observation. How can this spending of ratepayer funds be justified? Especially when people”s privacy is continuously affected by these actions and when it would have been an easy thing to simply ask.
This also extends to the question of how could the council possibly find out if someone is living somewhere without asking the landowner? In our case, we were never asked, but were observed over 19 months.
Search warrant
A further tool available is obtaining a search warrant in order to collect further evidence to the already available reasonable grounds to believe that an offence is occurring punishable by imprisonment. Theoretically speaking, this is quite a threshold and indicates that this tool is to be used wisely and only in circumstance where other tools do or did not work. In our case, we were searched and detained for the duration of the search. No evidence from the search was made available before initiating the proceedings in the Environment Court against us.
Abatement notice and declaration
Subsequently, the local authority will most likely be in position to determine whether or not a breach has occurred. Again, if on reasonable grounds to believe a Council come to this conclusion, an abatement notice can be issued. The affected party has then the right to understand the reasonable grounds on one hand and has got the opportunity to respond to the notice without the extensive costs of defending claims in legal proceedings. There is also the option to apply to the Environment Court to obtain a declaration should matters turn out be unclear.
Enforcement orders
Should no satisfactory outcome be achieved, a local authority may choose to apply for an enforcement order with the Environment Court. This option is usually reserved (like in the Tasman District) for the most serious breaches. Minor non-compliance would not fall into this category. However, an application for enforcement order does not require reasonable reasons to believe and the decision in the court is made based on the test of probability. Not complying with an enforcement order may lead to further proceedings and a criminal conviction. The Court has got the responsibility to exercise its discretion as granting or refusing an application for an enforcement order reflecting the seriousness of effects for those affected by an order.
Environment Court
The Environment Court does not have jurisdiction over the Local Government Act 2002, so anything to do with duty of care under that Act has no legal relevance in this court. The Environment Court used to called Planning Tribunal and was renamed in 1996 through the RMA Amendment Act. We believe there is substantial room for improvement in the statutory framework the Court is operating in. An Environment Court Judge acting under a warrant as Environment Judge only, does not swear the Oath of Allegiance or the Judicial Oath like other Judges or JPs according to the Oaths and Declarations Act 1957 (s22(2) and Schedule 2). In addition, the Court is not bound by the rules of law in regards to evidence (s276(2)) in its civil jurisdiction and there are no prescribed procedures (s269) like e.g. the District Court which is bound by the District Court rules.