An abatement notice is intended to be a loud, clear message that the council thinks your farm has a compliance problem serious enough for it to take formal action.
If there is a compliance problem and you do nothing about it, you are likely to be prosecuted for on-going non-compliance. Worse still, any fines will be higher because of the notice and any statutory liability insurance you have may be worthless, as insurers are unlikely to pay out when an abatement notice is breached.
An abatement notice will always require you, by a certain date, to stop doing whatever the council says is unlawful (such as discharging effluent in a way that results in ponding) or to do something it believes is necessary for you to become compliant and to deal with adverse effects on the environment – such as fencing a stream to prevent stock getting into it.
These notices should not be considered as ‘angry letters’, but they are formal legal documents with real legal consequences and must be taken seriously.
If you fail to do what is required within the timeframe outlined in the abatement notice, that in itself is an offence likely to be seen by the courts as having made matters worse than the non-compliance which led to the abatement notice in the first place. This will be reflected in the penalties imposed.
Further, these notices do not expire on the date by which you have to comply, but will live on until they are cancelled. So you can be prosecuted for breaching an abatement years after it has been issued.
Since an abatement notice is a binding legal document and breaching it is illegal, there are strict legal requirements on the council, which it has to meet to make the notice valid. If it has not met these requirements, you can appeal the notice to the Environment Court and apply to have the notice suspended (‘stayed’) until your appeal is heard. If the court agrees that the council has not complied with the necessary requirements, it will throw out the notice.
Even if the notice was valid, and you have fixed the problem that led to it being issued in the first place, you can apply to the council to have it cancelled. If you can show that the notice is no longer required (or if it was wrong in the first place), the council has little choice but to cancel it. If it doesn’t you can lodge an appeal through the Environment Court.
Once the notice has been cancelled by the council or thrown out by the court, it is ‘dead’, as it were, and you cannot be prosecuted for not doing what it required. Nor can it be used by your insurance company as a conclusive reason for not paying out on a statutory liability claim for a subsequent prosecution.
• Hans van der Wal is a special counsel at Duncan Cotterill Lawyers, with expertise in resource management and related prosecutions. Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
