CAN you think of any greater failure of a justice system than an innocent person pleading guilty to a vexatious charge for fear of losing their property to the government?
That is exactly what is happening in District Courts throughout the country on a weekly basis. The culprit is your regional or local council and their weapon of choice is the Resource Management Act.
I get a weekly digest of all the RMA court decisions. Without fail the majority of cases are guilty pleas by farmers.
I work in an industry where people live in fear of councils who make up the law as they go, selectively enforce it, charge fees like a wounded bull and drag people through the gauntlet of the court system until they relent.
This ‘hung, drawn and quartered’ strategy is what happens when you combine the ever changing and entangling regulation of the Resource Management Act with the overloaded and expensive summary proceedings of the District Court.
Often, prosecutions involve an overzealous regional council bureaucrat who wants to hang a farmer out to dry.
They find something trivial, such as clearing a blocked drain, and then proceed to instill in the mind of the farmer that resistance is futile.
Because a farmer owns property, he will have to pay a lawyer out of his own pocket. The council lawyer will know this and take his time to engage the farmer’s lawyer in a paper war. The farmer will then get frustrated to the point that he plea bargains for the problem to go away.
The benefit to the council is that they get a court decision without their plan ever being challenged as to whether it is within the scope of the Act. They can then take that conviction as a precedent to go about bullying every other farmer.
When councils start making policies and rules at will without them being independently tested, they take on a life of their own and the laws passed by Parliament often are ignored.
One such part of the RMA – that too often is ignored – is that if a council catches you doing something that requires a resource consent, there is often an opportunity to rectify any adverse effects of your actions. It is right there in the RMA at Section 341.
To make situations worse, the farmer who pleaded guilty does not only pay a fine and the costs of his lawyer, he often ends up paying for the council’s lawyer too. Sometimes the farmer then has to apply for resource consent to do the work he originally wanted to do.
But there are so many other tricks that councils employ on unsuspecting landowners. The most common is administrative charges for processing resource consents.
Lodging an application usually involves a fee which so often is a deposit in disguise. Councils seem to think that a deposit is a blank cheque. I have represented clients who have received $20,000 bills on top of their $600 ‘deposit’ for simple consents that consultants have made a meal out of.
But what councils often do is sneak a little bit on top here and there and hopefully no one notices.
The council relies on the cost of objecting to an unreasonable additional charge outweighing the cost of paying the charge.
I don’t think judges suspect what is going on when a farmer appears in the dock so browbeaten to confess.
I know the Minister knows it is going on but he is reluctant to do anything about it.
• Grant McLachlan is a planning law specialist
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