RMA convictions concern breaches of district plan and abatement notice
The New Zealand Supreme Court has dismissed applications to extend the time to apply for leave to appeal against a decision finding the applicants guilty of charges under ss 338(1)(a) and (c) of the Resource Management Act 1991 (RMA).
The applicants in this case were Vortac NZ Ltd, its director, and its manager. Vortac engaged a company to construct a retaining wall on its property between an open drain and the western boundary line.
Before the Council, neighbours complained that the drain modifications negatively affected downstream properties.
On 22 July 2015, Council officers paid a visit. Later that month, the Council served an abatement notice requiring the applicants and the construction company to cease building a closed board fence, retaining wall, or structure in a floodable area.
Following heavy rainfall in August 2015, the partly built wall worsened flooding and ponding. After additional rainfall on 1 September 2015, the work again interfered with the water’s natural flow.
The Council informed the applicants that they had violated the abatement notice. In mid‑September 2015, Council officers visited again and noticed that the work had led to erosion and slope instability.
Later that month, the Council learned that the applicants had retained an earthworks company for further work. The Council issued more abatement notices.
After a jury trial, the court convicted all three applicants for breaching an abatement notice under s 338(1)(c) of the RMA and contravening the district plan under s 338(1)(a) relating to the construction of a retaining wall or closed board fence in a floodable area.
The court also convicted Vortac and its director of a second offence under s 338(1)(a) in connection with the construction of certain earthworks in a floodable area. The Court of Appeal dismissed the conviction appeals.
After around four years, the applicants applied for an extension of time to seek leave to appeal from their convictions. The applicants argued that the jury did not have key defence evidence.
On 21 May 2026, in Vortac NZ Ltd v R [2026] NZSC 59, the New Zealand Supreme Court refused to extend the time for the applicants to seek leave to appeal. The Supreme Court ruled that granting such an extension would not serve the interests of justice.
The Supreme Court found no explanation for the applicants’ lengthy delay in applying for leave. The Supreme Court did not see a compelling reason to extend the time to appeal or sufficient strength in the proposed appeal.
The Supreme Court found no error in the Court of Appeal’s findings that the Crown:
The Supreme Court noted that the Crown asserted that the evidence did not support that the Council caused flooding at the property or that the applicants needed to build a “defensive” structure to mitigate the Council’s supposed negligence.
The Supreme Court added that the parties did not need expert evidence on the definition of “retaining wall” and that the contractor said Vortac’s manager instructed him to build such a wall.
The applicants applied to recall the Supreme Court’s 21 May 2026 judgment. They alleged that they had explained their delay in applying for leave to appeal. They claimed that the court had failed to properly consider the grounds for leave.
On 1 July 2026, in Vortac NZ Ltd v R [2026] NZSC 86, the Supreme Court of New Zealand dismissed the recall application. The Supreme Court held that the substantive issues that the applicants raised essentially involved relitigating matters previously addressed.
The Supreme Court saw no basis or special reason for a recall and little force in the applicants’ claim, unsupported by any affidavit, that their involvement in other litigation explained the lengthy delay.
