FUGLE & ANOR v R [2016] NZCA 619

FUGLE & ANOR v R [2016] NZCA 619 [19 December 2016]ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATIONIN LAW REPORT OR LAW DIGEST PERMITTED.IN THE COURT OF APPEAL OF NEW ZEALANDCA247/2016[2016] NZCA 619BETWEEN LESLIE WILLIAM FUGLEFirst AppellantPACIFIC FARMS DEVELOPMENTLIMITEDSecond AppellantAND THE QUEENRespondentHearing: 2 November 2016Court: Miller, Winkelmann and Asher JJCounsel: C M Stevens and I Tokmadzic for AppellantsJ C Pike QC for RespondentJudgment: 19 December 2016 at 10 amJUDGMENT OF THE COURTA An extension of time to appeal is granted.B Leave to appeal is granted.C The appeal is dismissed.D Order prohibiting publication of the judgment and any part of theproceedings (including the result) in news media or on the internet or otherpublically available database until final disposition of trial. Publication inlaw report or law digest permitted.____________________________________________________________________REASONS OF THE COURT(Given by Winkelmann J)[1] The issue on this appeal concerns the limits of the power conferred by s 332 ofthe Resource Management Act 1991 (RMA) to local authority enforcement officers toenter onto private property to inspect for compliance with the RMA, regulations, plansand resource consents.[2] The appellants, Mr Fugle and Pacific Farms Development Ltd, appeal apre-trial decision of Judge Thompson ruling evidence admissible at a forthcoming trialin respect of charges under the RMA.1 The evidence was gathered during the courseof 13 inspections of the site the subject of the charges, purportedly carried out underthe authority of s 332 of the RMA. The appellants say that from around the time ofthe second site inspection, the Council knew offences had been committed under theRMA and in those circumstances entry on to the site could only be authorised by asearch warrant issued under s 334 of the RMA. That section provides for the issue ofsearch warrants for the collection of evidence in connection with imprisonableoffences under the RMA.[3] It follows, the appellants say, that every entry onto the land after the secondvisit was not authorised by s 332, the officers were trespassing on the land and theevidence gathered during the visits was gathered unlawfully and in breach of theappellants' rights protected by s 21 of the New Zealand Bill of Rights Act 1990(NZBORA). The District Court was wrong to hold to the contrary.Background[4] Pacific Farms Development is one of two holders of resource consents for thedevelopment where the alleged offending occurred. Mr Fugle is the sole director of1 R v Fugle DC Palmerston North CRI-2014-054-3231, 18 April 2016 [DC judgment].Pacific Farms Development and was named as the owner's/developer's representativein the draft management plan provided to the Horizons Regional Council with PacificFarms Development's applications for resource consent.[5] On the face of the record, it was a condition of that consent that the site besubject to a "weekly monitoring programme to assess the site's compliance with" theresource consent. Section 332 of the RMA authorises council enforcement officers toenter on to land to check for compliance with resource consents. Section 332 provides:332 Power of entry for inspection(1) Any enforcement officer, specifically authorised in writing by anylocal authority or consent authority to do so, may at all reasonabletimes go on, into, under or over any place or structure, except adwellinghouse, for the purpose of inspection to determine whether ornot—(a) this Act, any regulations, a rule of a plan, a resource consent,section 10 (certain existing uses protected), or section 10A(certain existing activities allowed), or section 20A (certainlawful existing activities allowed) is being complied with; or(b) an enforcement order, interim enforcement order, abatementnotice, or water shortage direction is being complied with; or(c) any person is contravening a rule in a proposed plan in amanner prohibited by any of sections 9, 12(3), 14(1), 15(2),and 15(2A).(2) For the purposes of subsection (1), an enforcement officer maytake samples of water, air, soil, or organic matter.(2A) Where a sample is taken under subsection (2), an enforcement officermay also take a sample of any substance that the enforcement officerhas reasonable cause to suspect is a contaminant of any water, air, soil,or organic matter.(3) Every enforcement officer who exercises any power of entry underthis section shall produce for inspection his or her warrant ofappointment and written authorisation upon initial entry and inresponse to any later reasonable request.(4) If the owner or occupier of a place subject to inspection is not presentat the time of the inspection, the enforcement officer shall leave in aprominent position at the place or attached to the structure, a writtennotice showing the date and time of the inspection and the name ofthe officer carrying out the inspection.(5) An enforcement officer may not enter, unless the permission of thelandowner is obtained, any land which any other Act states may notbe entered without that permission.(6) Any enforcement officer exercising any power under this section mayuse such assistance as is reasonably necessary.[6] The first site inspection took place on 14 March 2014. Non-compliance withthe resource consent was immediately observed — the Council issuing an inspectionnotice recording that the consent holders had been assessed as "[s]ignificantly[n]on-complying with resource consents" in connection with erosion and sedimentcontrol. The assessment recorded:The non-compliances identified above are serious and require urgent attention.By failing to comply, [the consent holders] have contravened section 9 (2) ofthe [RMA], which in turn is an offence under section 338(1) of the [RMA].Failure to take effective action within the timeframes specified within thisnotice will result in enforcement action [being] taken.The timeframe for compliance was six days later, 20 March 2014.[7] The next inspection took place on 21 March 2014, with the subsequentinspection notice noting the same non-compliance issues. On this occasion the noticestated "[f]ailure to take effective action within the timeframes specified within thisnotice will result in enforcement action [being] taken". The notice gave the consentholders until 28 March to remedy the non-compliance.[8] A third inspection followed a week later, on 28 March. The inspection noticeissued for this visit recorded that the resource consent holders had failed to meet the28 March deadline and continued:By failing to comply [the resource consent holders] have contravened section9(2) of the [RMA], which in turn is an offence under section 338(1) of theRMA. Ongoing non-compliance is not acceptable therefore [the Council] isnow considering enforcement action in relation to these offences. Given the continued failure to meet the dates specified in the previousnotices [the Council] will not be extending these time frames to take thenecessary action to comply.[9] Mr Fugle was sent a copy of this notice. Contrary to the timeframe given inthe inspection notice, the letter enclosing the notice extended the time for completionof the compliance to 9 or 11 April 2014 (both dates being given at different points).The letter said "[f]ailure to ensure compliance by this date will result in enforcementaction being initiated by [the Council] against [the resource consent holders]".[10] Around this time an advisor associated with the development, Mr Coulson,emailed Mr Fugle to report on a meeting with Council officers regarding thecompliance issues:On discussion with the guys they were looking at taking enforcement actionthis week by way of an abatement notice to cease works. I said I would discusswith you how we could get the site compliant by next Wednesday so on thatbasis they had agreed to suspend action until then.[11] Ten more inspections and nine inspection notices followed, although the datefor compliance, 28 March 2014, was now in the past. Every one of the nine inspectionnotices included a statement that the resource consent holders had been assessed assignificantly non-complying with resource consents and continued:Ongoing non-compliance is not acceptable therefore [the Council] is nowconsidering enforcement action in relation to these offences. Given the continued failure to meet the dates specified in the previousnotices [the Council] will not be extending these time frames to take thenecessary action to comply.[12] The last s 332 site inspection occurred on 12 August 2014. A search warrantfor the site was obtained on 12 September 2014 and executed on 19 September. On30 October 2014 the Council charged Mr Fugle and Pacific Farms Development withcontinuing offences, with a date range between 2 May 2014 and 19 September 2014.[13] During the course of the s 332 inspections, the Council officers tookphotographs and videos, some of which it intends to produce as evidence in supportof the charges. We understand that it is this evidence which was the subject of theadmissibility argument.[14] In the District Court, Mr Fugle and Pacific Farms Development relied on thedocumentary record of the inspections to argue that, from the time of the completionof the very first site visit on 14 March 2014, the purpose of the s 332 inspectionmechanism had been met and exhausted. From that date, Council officers had formedthe opinion that an offence had been committed. Thereafter, it was argued, visits tothe site were for the purpose of action "in respect of which an offence has been or issuspected of having been committed against [the RMA] or regulations that ispunishable by imprisonment".2 That being so, s 334 came into play and the"inspection" power under s 332 could not be used to gather evidence. Section 334provides:334 Application for warrant for entry for search(1) An issuing officer (within the meaning of section 3 of the Search andSurveillance Act 2012) who, on an application made in the mannerprovided in subpart 3 of Part 4 of that Act, is satisfied that there isreasonable ground for believing that there is in, on, under, or over anyplace or vehicle anything—(a) in respect of which an offence has been or is suspected ofhaving been committed against this Act or regulations that ispunishable by imprisonment; or(b) which there is reasonable grounds to believe will be evidenceof an offence against this Act or regulations that is punishableby imprisonment; or(c) anything which there is reasonable ground to believe isintended to be used for the purpose of committing an offenceagainst this Act or regulations that is punishable byimprisonment—may issue a warrant authorising the entry and search of any placeor vehicle.(2) The provisions of Part 4 of the Search and Surveillance Act 2012apply.(3) Despite subsection (2), sections 118 and 119 of the Search andSurveillance Act 2012 apply only in respect of a constable.District Court judgment[15] Judge Thompson was satisfied that the inspection power under s 332 could beused repetitively to monitor compliance with the provisions of a resource consent.3He said that the section itself sets no limit on the occasions of its use.4 It does notprovide that, if evidence of what may be offending under the RMA is observed, no2 See Resource Management Act 1991, s 334(1)(a).3 DC judgment, above n 1, at [19].4 At [19].further inspection may be made. Nor does it provide that no further s 332 inspectionmay be made where there is a possibility information which is gathered will later beused to support a prosecution.[16] Of the relationship between ss 332 and 334 he said:5The point at which the situation changes is the point when prosecution actionis decided upon. Even though compliance monitoring may still be appropriateafter that time, the Waikato RC v Campbell judgment makes it clear thatobservations or material from entries onto the property after such a decisionis made should not be given in evidence, and that a search warrant must besought to authorise evidence gathering entries after that point.[17] In reaching this view he drew upon the following passage in the judgment ofVenning J in Waikato Regional Council v Campbell :6[42] As I read the Act and s 332 in particular, it is contemplated that anenforcement officer making an inspection under s 332 may obtain evidencewhich would support a prosecution under the Act. The purpose of theinspection process is to determine whether the property owner is complyingwith the Act, regulations, resource consents, etc. or not. It follows that thesection contemplates that non-compliance may be detected. If the propertyowner is not complying then the council will have to determine what stepsmight be appropriate as a consequence of that non- compliance. As counsel,Mr Quinn submitted, a whole suite of options is available to the council at thatstage. They range from a letter requesting compliance to the issue of aninfringement order to ultimately, a prosecution. Which of the various stepsmight be appropriate will depend on all the circumstances including but notlimited to the extent of the non-compliance, the severity of the effect, whetherit is an ongoing or a one-off matter and the particular history of the propertyowner. If a decision is taken to prosecute then the information obtained duringthe course of that inspection to determine compliance would prima facie beadmissible.[43] However, if a decision was taken to prosecute then it would be wrongfor the council and its enforcement officer to rely on s 332 to then return tothe property to gather further evidence to support the prosecution. At thatstage the purpose of the entry onto the property has changed from inspectionto determine compliance to an entry onto the property to obtain evidence tosupport a prosecution. The proper way for such further evidence to beobtained is by way of search warrant.[44] The determining factor is the underlying purpose for the visit to theproperty. That is clear from the wording of s 332. An inspection is authorisedunder s 332 if it is for the purpose of determining compliance orcontravention: 332 (1). If the purpose of the visit is to obtain evidence to5 At [21].6 Waikato Regional Council v Campbell [2003] NZRMA 481 (HC).support a prosecution of an offence punishable by imprisonment then s 334applies and a warrant is required.[18] The Judge concluded that there was nothing in the documentary material tolead him to conclude that the Council had decided to prosecute at any time during thecurrency of the s 332 inspections.7 He noted the time gap between the last s 332inspection (12 August 2014), and the issue of the search warrant (12 September 2014)and the laying of the first charges (30 October 2014).8 He saw nothing in thedocuments, or the sequence of events they revealed, to suggest a manipulation of theinspection and search provisions of the Act.Extension of time and leave to appeal[19] The appellants were late in filing their notice of application for leave to appealto this Court, because the notice was mistakenly filed first in the High Court. Theythus require an extension of time to apply for leave. The Crown does not oppose anextension of time and we grant one accordingly.[20] The appellants also require leave to appeal under s 217(2)(b) of theCriminal Procedure Act 2011, the District Court judgment being a pre-trial decision inrespect of the admissibility of evidence. The Crown does not oppose leave beinggranted and we grant leave accordingly, given the significance of the issues for theforthcoming trial.Discussion[21] There are two parts to the appellants' argument in this Court; the first isconcerned with the legal test applied by the Judge, the second with his factual findings.The legal test[22] Mr Stevens argues that the Judge was wrong in his characterisation of therelationship between ss 332 and 334. Contrary to the Judge's finding, the Councilneed not need reach "the point when prosecution action is decided upon" before the7 DC judgment, above n 1, at [22].8 At [22].right to use s 332 to go on to the site is no longer available.9 He submits that onceenforcement officers know of offending in connection with the site, they mustthereafter seek a s 334 warrant for further entries on to the land. To require that therebe a commitment at the time to prosecute is to place a gloss on the warrant processwhich is illogical. Moreover, the purpose of s 334 is to ensure police supervision ofany search and the collection of any evidence acquired. That control, and the scrutinyof the Search and Surveillance Act 2012, could be easily bypassed (and was bypassedin this case) if s 332 is read to authorise entry on to the land and allow for the collectionof evidence in circumstances such as these.[23] We agree with Mr Stevens that the issue is not, as the Judge characterises it inthe passage we have set out at [16], whether the decision has been taken to prosecute.The issue is rather, as Venning J frames it in Waikato, just what the purpose of the visitis. That is because the authority to visit the site under s 332 is conditioned on the visitbeing for one of the purposes defined in s 332.[24] It follows that if the purpose of the visit is to check compliance with a resourceconsent, the fact the enforcement officers know of a continuing offence onsite doesnot deprive them of authority under s 332. Even if they make repeated visits to thesite after they know of offending, the issue as to whether the officers had authority tovisit the site under s 332 will still turn upon the purpose of the visit. The District CourtJudge was therefore correct to hold that s 332 allows enforcement officers to continueinspections under s 332 after they have knowledge of a continuing offence onsite, evenif it is offending in respect of which they could obtain a s 334 warrant. The test is asubjective one, focused upon the intentions and purpose of the particular officer orofficers.[25] It may even be that the enforcement officers have, as a subsidiary purpose,keeping a proper record of the non-compliance in case prosecution is decided upon ata later point in time. If the primary or dominant purpose of the visit is to monitorcompliance with the conditions of the consent, the entry on to the land will still beauthorised under s 332.109 DC judgment, above n 1, at [21].10 See R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [36].[26] There is nothing in the wording of s 334 that assists Mr Stevens' argument.Section 334 sets out the circumstances in which a warrant may be obtained but notwhen a warrant must be obtained. The fact that the officers could have obtained awarrant under s 334 does not mean that they were obliged to do so, provided they wereacting within the scope of the authority conferred by s 332.[27] However, enforcement officers may not go onto the land under the authorityconferred by s 332 where the dominant purpose is the collection of evidence for thepurposes of prosecution. It follows that had that been the officers' dominant purposefor subsequent visits in this case, the evidence obtained on those visits would havebeen obtained unlawfully. The relevance of the decision to bring a prosecution is notthat it acts as some trigger, closing off the availability of s 332 as authority. It is that,when assessing the subjective intent of the officers, the decision to prosecute is seenas evidence that collection of evidence for that prosecution was the dominant purpose.[28] We also note that s 332 allows authorised enforcement officers to enter uponland for one of the stipulated purposes, including to check for compliance with aresource consent. It does not permit searching. Although it allows the taking ofsamples, this is only if the taking of samples is for one of the inspection purposes. Wedo however consider it implicit in the authority conferred by s 332 that the officersmay take a record of their visit, in the form of photographs and videos. That is anincident of the keeping of a proper record of the site inspection. If that record isrelevant in later proceedings, it having been lawfully collected, then it is, at least primafacie, admissible evidence.[29] This interpretation of the relationship between ss 332 and 334 is necessary togive effect to the purpose of the RMA, which is to "promote the sustainablemanagement of natural and physical resources".11 The RMA recognises both a publicinterest in development of the environment and in the sustainable management ofresources. As the RMA makes clear, not every non-compliance is met with aprosecution — local authorities are given a variety of means by which they can compelcompliance. Enforcement officers are authorised to enter on to land to check11 Resource Management Act, s 5.compliance with a resource consent. At the lowest level, the enforcement officer'sresponse may be to record the non-compliance and require rectification. Failing that,the enforcement officer can issue an abatement notice placing a moratorium on onsitework until the non-compliance is addressed.12 Again, it is apparent on the facts of thiscase that this course was considered. It is also possible for a council to obtain anenforcement order from the Environment Court, requiring compliance or cancellingthe resource consent.13[30] This statutory menu of possible responses allows the flexibility necessary toachieve compliance without undue compliance costs, whilst enabling developments toproceed without undue disruption. And if, in the end, compliance can be achievedwithout resort to formal legal mechanisms, the objectives of the RMA will in manycases have been met.[31] The existence of a cross-over between these sections, in the way that we havedescribed it, is, moreover, implicit in s 332. Section 332(1)(b) provides that one of thepurposes for which entry is authorised is to check on compliance with enforcementorders or abatement notices. Enforcement orders and abatement notices can be issuedin respect of conduct which constitutes offending for the purposes of the RMA. Theinterpretation Mr Stevens proposes is inconsistent with this statutory scheme andunworkable. It would, to take an example, mean that enforcement officers could notcome back onsite to check compliance with an abatement notice without obtaining asearch warrant.The factual findings[32] The second limb to Mr Stevens' argument is that the Judge should have found,on the evidence before him, that the visits to site after 28 March were for the primarypurpose of collecting evidence. He argues that the purpose of entry on to private landshould be judged objectively and from all of the circumstances. The evidence is thatfrom the first visit the enforcement officers believed that there was offending of anature punishable by imprisonment. After 28 March they knew the offending had not12 See Resource Management Act, ss 322–325B.13 See ss 314–321.been remedied within the time stipulated. But they continued to inspect. Mr Stevenssubmits that objectively assessed, the documentary record shows that the purpose ofthe inspections was to gather evidence and, even if there was a mixed purpose, thesubstantive purpose was that of prosecution. Accordingly, the officers should haveproceeded under s 334.[33] The appellants' case faces the immediate difficulty that on the documentaryrecord, the basis upon which the hearing in the District Court (and this Court)proceeded, there is no basis to find that the primary purpose of the visit was thecollection of evidence for a prosecution. The documentary record of notices,correspondence and emails proves the contrary. These visits continued over manymonths. On each occasion, the report following the inspection narrated that the visitswere inspection visits undertaken to determine compliance with the conditions of theresource consent. Each report identifies the infringements but also requires remedialaction. Although there is reference in each report to the sanctions regime in the RMA,this is to be read in the context that the enforcement officers were allowing works tocontinue but attempting to obtain compliance from the appellants. That is what thereports say.[34] If the appellants wished to contend for a different interpretation of events theyhad to provide evidence to challenge the record. This would have includedcross-examining the enforcement officers in relation to the purpose for which theyentered the site on each occasion. As Mr Pike QC submitted for the Crown, this is, atits heart, an allegation of bad faith. To accept Mr Stevens' argument the Judge wouldhave to have been satisfied that the written record misstated the purpose of the visitsand that the officers were hiding behind the s 332 purpose to cloak their real intent.There is no evidence to substantiate such an allegation.[35] Our review of the material satisfies us that the Judge was correct to find thatthe purpose of the visits did fall within the scope of s 332(1). Mr Stevens placed greatweight upon the repetitive nature of the visits, but the very persistence of theenforcement officers in visiting the site supports the Judge's finding. If prosecutionhad been decided upon, why did the officers continue to visit rather than simply moveto prosecute? The continuation of the visits is consistent with the officers trying towork with the consent holders to achieve compliance, avoiding a stop of work on thesite or the need to prosecute.[36] It follows that neither of the grounds upon which this appeal has been advancedis made out.Result[37] An extension of time to appeal is granted. Leave to appeal is granted. Theappeal is dismissed.[38] For fair trial reasons we make an order prohibiting publication of the judgmentand any part of the proceedings (including the result) in news media or on the internetor other publically available database until final disposition of trial. Publication in lawreport or law digest permitted.Solicitors:Treadwell Gordon, Wanganui for AppellantsCrown Law Office, Wellington for Respondent