Warrants needed for RMA searches

By ELIZABETH BINNING

Council officers can enter private property to check for compliance with the Resource Management Act - but not if they know there is a breach.

To inspect a known breach of the act they need a search warrant, a High Court judge has ruled.

The ruling means failure to obtain a warrant could result in charges against the property owner being thrown out of court.

The ruling was made by Justice Geoffrey Venning after Environment Waikato went to the High Court for clarification on its powers of entry.

Justice Venning said council officers could enter a property to carry out an inspection.

If the officer found evidence of an offence, it could be collected and used in court during prosecution.

But if the officer had "reasonable grounds" to think, before even entering the property, that an offence had taken place, a search warrant must be sought.

Environment Waikato spokesman Harry Wilson said the council was happy with the ruling, which helped clarify several issues for all officers.

Council officers would be advised on what actions they could take, but he doubted the ruling would have much impact on most investigations.

"The main difference is we have to form an objective belief that someone is committing a crime. Often you can't do that until you have gone on to the property to check compliance."

Mr Wilson said he doubted search warrants would be needed in many cases the council investigated.

His comments were echoed by Wellington City Council which, along with Auckland Regional Council, supported Environment Waikato's appeal to the High Court.

Wellington City Council spokesman Richard MacLean said the ruling "basically legitimised 95 per cent of all kinds of inspection work" the council did.

But lawyer Patrick Mulligan said the ruling would have a significant effect on how all council officers conduct their investigations.

"Councils will now have to re-evaluate their protocols for entering a site to ensure they are not entering private property illegally."

Mr Mulligan said councils would need to err on the side of caution when entering a property with a suspected breach.

"If they do not it is possible that any evidence collected ... could be found to be inadmissible in a prosecution action."

Environment Waikato made its appeal to the High Court following an interim decision from the Environment Court regarding council's power of entry.

In that case Huntly man John Campbell challenged the council's attempts to enter, search and take samples of his property, which was suspected of being used as an illegal dump.

Mr Wilson said the council felt the Environment Court decision needed further clarification.

Meanwhile, the 2001/2002 Resource Management Act survey released today has found 28 per cent of all monitored resource consent holders failed to comply with their conditions.

As a result 620 infringement notices were issued, with just over half the notices being appealed in the Environment Court.

The survey, which assessed the country's 86 local authorities on six key aspects of RMA process, found 49,012 consents had been processed in the 2001/2002 year. Of those only 6 per cent were publicly notified.

Warrant rules

Officers can enter a property and obtain evidence without a warrant if:

They are investigating a compliant from a third party.

They are checking compliance with abatement notices or enforcement orders.

Officers will need a search warrant if:

They are revisiting a site already known to be in breach of the Resource Management Act.

There is independent evidence before the council proving a breach of the act.

The purpose of the visit is to obtain further evidence, not to determine compliance.