City Consenting and Compliance ENFORCEMENT POLICY CCC.pdf

City Consenting and Compliance Unit

ENFORCEMENT AND COMPLIANCE POLICY
Version 11 updated, 20 October 2021.

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Contents

Introduction

p.3

Purpose

p.3
Objectives

p.3
Principles

p.4
Policy

p.5

Enforcement Options

p.6
•  Enforcement Strategy Matrix

p.6
•  Informal Enforcement Measures

p.7
•  Formal Enforcement Directive Measures

p.8
Punitive Actions

p.9
•  Formal Warnings

p.9
•  Infringement fines

p.9
•  Prosecution

p. 11

Schedule 1: Specialist Advice and Compliance Team.

P.13
Schedule 2: Building Compliance

P:16
Schedule3: Health and Liquor Team

P.18

APPENDIX 1: Enforcement Schedule.

P.20
APPENDIX 2: Prosecution Guidelines - relevant public interest considerations
p.21
APPENDIX 3: The Principles of the Treaty of Waitangi

p.23
Appendix 4: Infringement Fine Details

p25

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INTRODUCTION

The Wellington City Council is responsible for a wide range of functions across the district
including ensuring compliance with a diverse range of laws, regulations and standards.

The Specialist Advice and Compliance Team (SAC), the Building Compliance Team (BC) and
the Public Health Team investigate compliance and exercise enforcement powers on behalf
of the Wellington City Council under the combined business unit City Consenting and
Compliance (CCC).

The CCC undertake their compliance and enforcement duties pursuant to a broad range of
legislation including the Local Government Act 2002, Resource Management Act 1991, The
Building Act 2004, Sale and Supply of Alcohol Act 2012, Litter Act 1979, the Dog Control Act
1996, and the Health Act 1956. The specific functions of the teams are outlined in the
relevant team schedules to this enforcement policy.

The Compliance and Enforcement Policy provides a guide for the exercise of enforcement
discretion where appropriate. It also provides an insight into the range of enforcement tools
available and the processes CCC will follow to enforce them.

PURPOSE

The purpose of the Compliance and Enforcement policy is to:

1.  Provide guidance for enforcement officers to identify the factors that will assist in
determining which enforcement tool, or combination of tools, is most appropriate
so that enforcement functions are carried out in a consistent, effective and
principled way.

2.  To achieve collaboration amongst the three groups within CCC to ensure actions
taken and advice given to the public is consistent.

3.  Provide a publicly available statement of the objectives and principles that will guide
the teams in the performance of its enforcement functions.

OBJECTIVES

The key objectives sought from the Compliance and Enforcement Policy is:

1.  To achieve optimal compliance with:

•  The District Plan rules, Resource Management Act and with resource consents
prepared or granted under this Act.

•  The Building Act 2004, building regulations, the building code and with building
consents prepared or granted under this Act.

•  The Health Act 1956

•  Food Act 2014 and Food Regulations 2015

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•  The Sale and Supply of Alcohol Act 2012

•  Dog Control Act 1996

•  Litter Act 1979

•  The Hazardous Substances and New Organisms Act (HSNO Act)

•  Council’s Bylaws and Policies

2.  To educate and support people to comply. Where appropriate we give customers an
opportunity to voluntarily put it right before we enforce.

3.  To ensure adverse effects caused by the offending are mitigated or remedied.

4.  To take a firm stance against repeat and/or deliberate offending, including the use
of prosecution action where necessary to send a message to the community that
repeat offending and deliberate, serious offences will not be tolerated.  This may
include offending of a minor nature, where the individual(s) may gain financially or
in terms of a saving of time from the offence.

PRINCIPLES

The CCC unit will exercise its enforcement powers guided by the following principles:

•  Fairness:  CCC will take a fair but firm stance and will be guided by what is
appropriate, practicable, and proportionate in specific circumstances.

•  Certainty:  CCC will endeavour to provide certainty and clarity as to what is
acceptable and in the instance of noncompliance the likely course of enforcement
action as outlined in this document.

•  Efficiency: CCC will endeavour to undertake its responsibilities and duties in a timely
manner that gives effect to the objectives and principles of this document whilst
keeping costs to the rate payer to the most practical minimum.

•  Equity: All consent and or license holders and every person carrying out an activity
can expect to be fairly and impartially treated by the same process of enforcement
regardless of the type and size of the activity.

INVESTIGATE COMPLIANCE

Gathering information

Noncompliance may be detected through either monitoring, a scheduled inspection, receipt
of a complaint or alternatively from an incident occurring.

On being notified of potential noncompliance officers shall undertake an investigation.

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This may include:

•  Interviewing people
•  Checking Council files
•  Internet search
•  Undertake a site visit site
•  Expert advice
•  Measuring
•  Photographing

Council’s aim is to make compliance as simple as practicably possible.

Where noncompliance is identified the Council will be guided by the following process:

Identify and advise the person

responsible for non-compliance

and any remedial action

required

Informal

Formal

Initially seek to encourage

Serve formalised notices as a
voluntary compliance through

preference to informal
education where appropriate. For

compliance measures for
instances, where offending is a

serious breaches, to ensure the
one-off event, accidental, of

offender ceases the non-
minor significance, or where there

complying activity, carries out
is no pattern of repeat offending.

remedial action in a timely
This is particularly the case where

manner, and/or does not start
the offender is a member of the

an activity which would amount
public who may not have

to an offence
experience with the Act or its

processes

Follow-up the initial action to

confirm that remedial action has

been taken or identify

outstanding requirements

Where punitive action is

appropriate, Council may use

the punitive provisions of the

relevant Act

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Consider serving
Consider prosecution for

infringement notices only
repeat, deliberate offending

for minor offences where
and /or serious offences. This

prosecution action is not
may include offending even

appropriate
when of a minor nature, where

the individual(s) may gain

financially or in terms of a

saving of time from the

offence

ENFORCEMENT OPTIONS

In many instances, the CCC unit has discretion as to what enforcement action if any is
appropriate and proportionate, having regard to all the relevant circumstances.

The following is a summary of the enforcement options available, the advantages and
disadvantages of each option, and situations where certain options are necessary. It is
possible that a combination of enforcement options may be required.

The enforcement tools available under the Acts can be divided into two broad categories:

•  Enforcement tools which seek to address the offending behaviour by ending the
situation of non-compliance, remediating its adverse effects, and preventing its
reoccurrence. Examples include enforcement orders and notices to fix.

•  Enforcement tools which seek to punish the offender and deter future offending.
Examples of such tools include infringement notices and prosecutions.

Enforcement Strategy Matrix

The CCC Unit’s approach includes:
- enabling compliant activities,
- recognising and rewarding excellent performance,
- engaging and educating in the first instance where appropriate, and
- enforcing recidivist and deliberate offences

The increasing seriousness of the offence pushes Council’s decisions towards enforcement
options that provide full force.

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Figure1. Enforcement Strategy Matrix1

Enforcement officers will consider the following factors when determining whether formal
or informal enforcement directive measures are appropriate and what options are
appropriate:

•  The seriousness of the offence.
•  Recidivist offending.
•  Whether the offending is deliberate.
•  Whether the offenders are co-operative
•  Whether there is a failure to act on previous advice or direction.
•  Whether the effects are widespread
•  A lack of due care where an incident was foreseeable
•  Whether an immediate or timely resolution is essential
•  Whether any effort has been made to date to mitigate or rectify the effects of the
offending

Informal measures to engage and educate

If appropriate, consistent with the enforcement strategy criteria and matrix in figure 1, CCC
will consider the use of informal enforcement tools, such as education and correspondence.

1 Drafted from the matrix on https://www.mfe.govt.nz/sites/default/files/media/RMA/best-
practice-guidelines-cme.pdf

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Correspondence to the individual or organisation responsible for the noncompliance acts as
a written record that the offender has been notified of the offence, provided a timeframe to
comply and warned of potential formal enforcement action if compliance is not achieved.

In some instances where a breach is of a very minor nature and where little or no mitigation
work is required to rectify the problem a verbal direction with a file note may be
appropriate.

Correspondence should include:

•  A description of the offence including the legislation applicable.
•  The action required to achieve compliance.
•  The timeframe within which compliance must be achieved, including the date and if
necessary, the relevant time of day.
•  The potential formal enforcement action that may be taken if compliance is not
achieved.
•  An invitation to contact the writer or team for further information.

To ensure details are recorded for the purposes of formal enforcement action that might be
required in the future, all officers will:

•  take contemporaneous notes2 during site visits, or shortly thereafter, and collate
other evidence in the form of measurements, photographs or other details as
appropriate.
•  make a record of important phone calls and discussions.
•  update all the above details into the Teamwork Complaint SR Diary.

Education encourages voluntary compliance and discourages further non-compliance.
Education may include information provided on Council’s website3, newsletters sent to
stakeholders, letters, emails, or verbal explanations by officers on the phone or during a site
visit.

Formal Directive measures

If appropriate, consistent with the enforcement strategy criteria and matrix in figure 1, CCC
will consider the use of formal enforcement measures in the first instance.

The formal enforcement tools available to the different teams seek to address the offending
behaviour by:

•  Ending the situation of non-compliance; and
•  Remediating its adverse effects; and
•  Preventing its reoccurrence.

2 Page 25 : https://www.waikatoregion.govt.nz/assets/PageFiles/35153-basic-investigative-
skills/5921-BIS-manual-2018WR.pdf

3 https://wellington.govt.nz/
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Details of formal directive measures are outlined for each team in the schedules attached to
this enforcement policy

Schedule 1: Specialist advice and Compliance Team
Schedule 2: Building Compliance
Schedule 3: Public Health

Punitive Actions

In addition to formal directive enforcement measures, serious consideration will be given to
prosecution action. On receipt of a complaint, or as a result of compliance monitoring, or as
a result of inspections undertaken where repeat offending or a pattern of offences is
identified or very serious offending occurs, a search of the offenders’ names will be carried
out in the relevant database records. Repeat offending shall be brought to the attention of
the officer’s team leader or manager. A decision on appropriate action will be made by the
team leader with assistance from the officer.

Formal Warnings

A formal warning is sent in signed letter form to a culpable person or company informing
them that an offence against an Act or regulation has been committed, and that they are
liable.

Further action may not be taken in respect of that specific breach in some circumstances
where a formal warning is issued. However, the warning will be considered when
determining the appropriate action if there are future incidents of noncompliance.

A formal warning may be appropriate in the following circumstances:

There is no history of offence, and

•  The breach is a technical breach only, or
•  Effects / Impacts are negligible or minor or
•  The matter can quickly or simply be put right.

A decision to issue such a warning will be made by the team leader (or manager) with
assistance from the officer.  A record shall be kept on the property/offenders file outlining
why (in accordance with this policy) a warning was issued as opposed to issuing an
infringement fine or recommending consideration for prosecution.

Infringement fines

The infringement notice process is designed as a fast, efficient, and inexpensive way to
punish relatively minor offending.  An infringement fine may be served on the approval of
the relevant manager or team leader.

Infringement notices do not result in a criminal conviction.

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Enforcement officers will consider the following factors when considering whether to issue
an infringement notice, as opposed to initiating a prosecution:

•  Whether it is an infringement offence as outlined in the appropriate legislation.
•  Whether the offence is a one off (isolated) event or first offence, with no pattern of
repeat offending.
•  Consequences of the offence are minor
•  Whether the offence has minor or no adverse environmental effects, and whether
any such effects are temporary or permanent.
•  Whether the offending was accidental, unintentional, and not deliberate.
•  Whether the effects are limited and not widespread.
•  Whether specific deterrence (i.e. to the defendant) or general deterrence (i.e. the
public generally) is required.

Issuing of fines pursuant to the various Acts is outlined in Appendix 4

Prosecution

Prosecution action seeks to punish the defendant and acts as a deterrent but does not
directly force the defendant to achieve compliance.

Decisions to take prosecution action shall be made on a case-by-case basis; however, a
consistent approach is important.  Recommendations to prosecute require the approval of
the Manager of CCC prior to the commencement of any prosecution.  Prosecution action
seeks to punish the defendant and acts as a deterrent but does not directly force the
defendant to achieve compliance.  Prosecution action may be considered in addition to
formal enforcement measures. In some instances, enforcement orders may be sought as a
part of the penalty imposed after a prosecution results in conviction of the offender.

The Solicitor General’s Prosecution Guidelines provide guidance on the 'test for prosecution'
when enforcement agencies are deciding whether to commence a prosecution. The test
involves:
1.  an evidential test, and a
2.  public interest test.

There must be sufficient evidence to lay charges (the evidential test) and that such charges
are in the public interest (the public interest test). The circumstances will vary from case to
case and must be determined based on a range of factors. Even if a matter meets the test
for prosecution, all practical compliance responses will be considered. Prosecution action
may be considered in addition to formal enforcement measures.   The factors set out in the
Crown Law Prosecution Guidelines are described in Appendix 2 of this policy (they include
public interest considerations for and against prosecution).

The process involves:
•  The enforcement officer discusses the non-compliance with the team leader and
manager
•  The enforcement schedule in Appendix One is completed.
•  The public interest test is completed
•  Legal advice is sought as to whether there is sufficient evidence to lay charges
•  Permission is sought from the Manager of CCC.
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SCHEDULE 1:

Specialist Advice and Compliance Team.

Role:

•  resolving noise complaints
•  resolving environmental complaints
•  enforcing compliance with the Resource Management Act, including the general
duties arising under sections 16 and 17 of that Act
•  enforcing compliance with resource consent conditions
•  enforcing compliance with District Plan rules, including rules in notified plan changes
•  enforcing compliance with Wellington City Council bylaws

Formal Directive Enforcement Measures under the Resource Management Act 1991

Abatement Notices4

An abatement notice may be served to require a person to either do something, cease doing
something or to not start doing something. Details are in section 322 of the Resource
Management Act.

Abatement notice are inexpensive, quick and relatively straightforward to issue.  In most
cases, they have immediate effect.   By serving an abatement notice the enforcement officer
is indicating that the offence is of a level where some formal action is essential.

When an abatement notice is served by an enforcement officer:

•  The standard abatement notice template shall be used.
•  The notice shall be peer reviewed by another enforcement officer or by a Team
Leader before it is served.
•  Consideration should be given to whether complex notices need to be reviewed by
the Council's solicitors.

Abatement notices can also be the subject of appeals or stay applications to the
Environment Court by the non-compliant party.

Abatement notices remedy non-compliance, they do not impose fines. If an abatement
notice is not complied with, an enforcement officer may serve an infringement notice,
initiate a prosecution, or apply to the Environment Court for enforcement orders. Unless

4 For further information, Page 88: https://www.mfe.govt.nz/sites/default/files/media/RMA/best-
practice-guidelines-cme.pdf

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there is a good reason, any non-compliance with an abatement notice is expected to result
in further enforcement action.5

If an officer believes the offender is unlikely to comply with an abatement notice, then
consideration should be given to applying for enforcement orders (which are evaluated and
issued by the Environment Court) as an alternative to the service of an abatement notice

Enforcement Orders

Enforcement orders are formal orders made by the Environment Court, after an application
and hearing process.

Like abatement notices, enforcement orders may require the recipient to do something, or
to cease or not commence something that contravenes the Resource Management Act.

Enforcement orders are only issued where the Environment Court considers that adequate
grounds are made out.  They can encourage compliance in situations where an offender may
be reluctant to agree with the Council's view of a matter.

For serious offences, where the purpose of the enforcement action is to prevent the
continuation of breaches and adverse effects on the environment, enforcement orders are
preferred over an abatement notice. For lesser offences, where the enforcement officer is
convinced that the recipient will not comply or appeal the abatement notice, enforcement
orders may be considered as an alternative to issuing an abatement notice.

Breach of an enforcement order is also the most serious kind of offending contemplated
under the Resource Management Act.

Interim Enforcement Orders 6

Interim enforcement orders allow for urgent action, and applications are usually dealt with
by the Court without a hearing and without serving notice on the other party, although a
substantive hearing is scheduled for a later date.

An application for an interim enforcement order is made under section 320 of the RMA and
the scope of an interim enforcement order is the same as that for an enforcement order
pursuant to section 314 of the RMA.

Bylaw enforcement under the Local Government Act 2002.

5 Best Practice Guidelines for Compliance, Monitoring and Enforcement under the Resource
Management Act 1991, page 88 https://www.mfe.govt.nz/sites/default/files/media/RMA/best-
practice-guidelines-cme.pdf

6 Best Practice Guidelines for Compliance, Monitoring and Enforcement under the Resource
Management Act 1991, page 105, https://www.mfe.govt.nz/sites/default/files/media/RMA/best-
practice-guidelines-cme.pdf

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The compliance monitoring team periodically use bylaws to better control adverse effects
from signage, advertising for commercial sex premises and noise from refuse collection.
These are specified in the Public Places bylaw ,  The Solid Waste Management and
Minimisation Bylaw 2020 and the Wellington Consolidated Bylaw Part 2 (animals).

Prosecutions may be considered for any breach of a bylaw.

Noise Control Enforcement under the Resource Management Act

Excessive noise control pursuant to section 326 applies to noise under human control only.
The legislation requires a subjective assessment (not sound measurements) of the noise
being emitted.

These provisions typically apply to noise emanating from residential activities such as
stereos, musical equipment, and people noise. The provisions can be used to provide
temporary mitigation with regards to construction noise (especially outside accepted
construction hours) and commercial stereo / amplified music.

Noise direction
A enforcement officers or contestable who has received a complaint and upon investigation
considers the noise is excessive may direct (orally or in writing) that the noise is immediately
reduced to a reasonable level. A noise direction notice is in force for 72 hours.  Failing to
comply with the noise direction can result in seizure of the machine that is contributing to
the excessive noise. In addition to noise directions, the BCC Unit may issue abatement
notices and enforcement orders.

Investigations to find a long term solution require sound measurement and comparison with
noise limits set in the District Plan and or an assessment whether the noise is reasonable
pursuant to Section 16  of the RMA.

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SCHEDULE 2:

Building Compliance Team

Role:

Building Compliance and Consents (BCC) exercises enforcement powers on behalf of the
Wellington City Council under the Building Act 2004 (Act).

Specific functions include:

•  resolving building complaints
•  enforcing compliance with the Act, including regulations
•  enforcing compliance with the building code
•  enforcing compliance with building consents
•  enforcing compliance with Wellington City Council bylaws

Formal Directive Enforcement Measures under the Building Act 2004

Notice to Fix (TA)

A notice to fix is a notice issued under section 164 of the Building Act requiring a person to
remedy a breach of the Act or associated regulations. A notice to fix can be issued for all
breaches of the Act, not just for building work. For example, a notice to fix may be issued
for:

•  work carried out without a building consent when a building consent should
have been obtained
•  work not carried out in accordance with a building consent, the building code or
the Act
•  Failure to provide a suitable building warrant of fitness
•  non-compliance with a compliance schedule

A notice to fix may be issued concurrently with an infringement offence notice (see section
‘Infringement Offences’).

Any notice to fix issued must include a ‘reasonable timeframe’ to complete the remedial
action. Non-compliance with a notice to fix becomes an offence under the Act, at which
point –

•  An infringement fine may be issued for breach of a notice to fix
•  A new notice to fix may be issued with a new compliance timeframe
•  Prosecution may be considered for breach of a notice to fix
•  Council may decide to take no further action. In these cases, it may be necessary to
re-issue a notice to fix with a longer timeframe

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Dangerous and/or Insanitary Notices

Dangerous and Insanitary building notices are issued under section 124 of the Act and aim to
reduce the danger to the population posed by these buildings.

Dangerous and insanitary building notices may require building owners to vacate the
building or restrict use of the property.

Officers will undertake any assessment in accordance with the Dangerous, Insanitary and
Affected Buildings Policy.

•  BCC uses the forms linked in ProMapp under process ‘Determine if building is
dangerous or insanitary and resolve (TA)’ to determine dangerous or insanitary
buildings. WRCG Form 460 Dangerous building inspection record (Refer section 121
BA04); and/or
•  WRCG Form 461 Insanitary building inspection record (Refer section 123 BA04).

Noncompliance with a dangerous and insanitary building notice is an offence under the Act.

Licensed Building Practitioner (LBP) Complaints

Part 4 of the Building Act provides a mechanism for the regulation of building practitioners.
Council can make a complaint to the Building Practitioner Board, where the LBP’s conduct
falls within the ‘grounds for discipline’ listed in section 317 of the Act.

When considering whether to make an LBP complaint, the following factors should be
considered:

•  Whether there is sufficient evidence to prove that the LBP’s conduct falls within the
‘grounds for discipline’ listed in section 317 of the Act.
•  That the conduct complained about is not minor or trivial

Council can also make a complaint about a person who is doing or supervising restricted
building work without being appropriately licensed or supervised. Where there is sufficient
evidence to demonstrate that a person has been doing or supervising restricted building
work a complaint should be lodged with the Occupational Licensing Team. Please note that
this does not apply to owner-builders who have applied for an owner-builder exemption for
restricted building work

The Act also provides for councils to take immediate action (Infringement Offences) with
regards to people carrying out work without the appropriate licence. Those provisions are
found in section 85 of the Act –

•  Section 85(1) – unlicensed person
•  Section 85(2)(a) – LBP carrying out work outside of competency
•  Section 85(2)(b) – LBP supervising work outside of competency


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SCHEDULE 3:

Public Health Team
The Public Health Team exercises enforcement powers on behalf of Wellington City Council
in respect of the Food Act 2014, Food Regulations 2015, Sale and Supply of Alcohol Act 2012,
Health Act 1956, Litter Act 1979, Dog Control Act 1996.

Formal Directive Enforcement Options

Food Act 2014
Wellington City Council acts as a Registration Authority (RA) for food businesses to register
with within its boundary and scope of recognition. The Registration Authority has the ability
under certain circumstances to refuse, suspend or cancel registrations.

A Food Safety Officer working for a RA has various enforcement options available which
include infringement, Improvement Notices and Directions.

Improvement notices – one or two lines of what each of these are.
Directions

Health Act 1956

An environmental health officer may direct a person to abate a nuisance. Nuisances are
defined under section 29 of the Act. Every person by whose act, default, or sufferance a
nuisance arises or continues, whether that person is or is not the owner or occupier of the
premises in respect of which the nuisance exists, commits an offence against the Health Act.

If in the opinion of the engineer or environmental health officer of the local authority, the
engineer or environmental health officer, immediate abatement of the nuisance is
necessary, they may enter the premises and abate the nuisance without notice to the
occupier.

The Sale and Supply of Alcohol Act 2012 – can we put this in plain wording

Alcohol licence holders are subject to a number of standard and ad hoc conditions on their
licence. Should a licence holder be found to be in breach of any of these licence conditions a
licensing officer may apply to the Alcohol Regulatory Licensing Authority (ARLA) to:

•  vary or revoke any condition of the licence, imposed by the licensing authority
or a licensing committee, or impose any new condition. (or suspend the licence;
or
•  cancel the licence.

•   An Inspector may also take a licensee or Duty Manager to ARLA - to apply to
either suspend or cancel their licence or managers certificate if .
o    the manager has failed to conduct any licensed premises in a proper
manner
o   the conduct of the manager is such as to show that he or she is not a
suitable person to hold the certificate

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Litter Act 1979

Under this Act a litter enforcement officer may issue an infringement to anyone found
depositing litter in a public place.   A litter enforcement officer may also issue an
infringement to anyone who deposits litter from a public place onto private land without the
consent of the occupier of that land.   The value of the infringement is based upon the
volume of litter deposited.

The litter enforcement officer can also require the person depositing the litter to remove
that litter and dispose of it as directed

Dog control Act 1996

An animal control officer may issue an infringement to any dog owner found to be in breach
of certain requirements of the Act.  Infringement offences and fees are prescribed in
schedule 1 of the Act.

Section 21 provides for the classification of a dog owner as probationary. Where any person
commits 3 or more infringement offences (not relating to a single incident or occasion)
within a continuous period of 24 months that person may be classified as a probationary
owner

Section 25 provides for the disqualification of a person from being an owner of a dog if (a)
the person commits 3 or more infringement offences within a continuous 24-month period
or (b) the person is convicted of an offence (not being an infringement offence) against the
Act or (c) the person is convicted of an offence against specified parts of the Animal Welfare
Act 1999, the Conservation Act 1987 or the National Parks Act 1980

Section 31 provides for the classification of a dog as dangerous. Section 33 provides for the
classification of a dog as menacing (either by breed or deed) both of these classifications
require the owner to comply immediately with the conditions of those classifications

Bylaws

A local authority may make bylaws pursuant to section 647 of the Health Act 1956.

Bylaws made under the Health Act include bylaws on public pools8 , animals9 and alcohol
control.10

8 https://wellington.govt.nz/your-council/plans-policies-and-bylaws/bylaws/other-
bylaws/public-health-bylaw

9 https://wellington.govt.nz/your-council/plans-policies-and-bylaws/bylaws/wellington-
consolidated-bylaw-2008/part-2_-animals

10 https://wellington.govt.nz/your-council/plans-policies-and-bylaws/bylaws/wellington-
consolidated-bylaw-2008/part-4_-alcohol-control
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Every person who contravenes or fails to comply with any bylaw made under the Health
Act commits an offence and is liable on conviction to a fine not exceeding $500 and, in the
case of a continuing offence, to a further fine not exceeding $50 for every day on which the
offence has continued.



APPENDIX 1

Enforcement Schedule

Date:
Officer:
Name of Offender:

Summary of offence:

Adverse Effects / Impacts

nil

minor

One off

medium

cumulative

major

ongoing

Compliance History

None

Minor, unrelated

Ongoing

Public Interest

low

Specific deterrent

high

General deterrent

Offender's Culpability

Not aware obligation

Accidental offending

Ought to be aware

Deliberate offending

Aware

Offenders Attitude

Co operative

Completed remedial work

Obstructive

Attempted remedial work

Refuses remedial work

Specific Enforcement

Policy

Not targeted by specific

policy

Targeted by specific

policy

Recommended Action
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Agreed action

Update outcome

APPENDIX 2 –

Prosecution Guidelines - relevant public interest considerations

1
The following list is some public interest considerations for prosecution which
may be relevant and require consideration by a prosecutor when determining
where the public interest lies in any particular case.  The following list is
illustrative only.
PUBLIC INTEREST CONSIDERATIONS FOR PROSECUTION
1
The predominant consideration is the seriousness of the offence.  Where a
conviction is likely to result in a significant penalty including any confiscation
order or disqualification, then there is a strong public interest for a prosecution.
2
Where the defendant was in a position of authority or trust and the offence is
an abuse of that position.
3
Where the defendant was a ringleader or an organiser of the offence.
4
Where the offence was premeditated.
5
Where the offence was carried out by a group.
6
Where the offence was carried out pursuant to a plan in pursuit of organised
crime or was an offence involving serious or significant violence.
7
Where the offence was motivated by hostility against a person because of their
race, ethnicity, sexual orientation, disability, religion, political beliefs, age, the
office they hold, or similar factors.
8
Where the offence is prevalent.
9
Where the offence has resulted in serious financial loss to an individual,
corporation, trust person or society.
10
Where the offence was committed against a person serving the public, for
example a doctor, nurse, member of the ambulance service, member of the fire
service or a member of the police.
11
Where the victim of the offence, or their family, has been put in fear, or suffered
personal attack, damage or disturbance.  The more vulnerable the victim, the
greater the aggravation.
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12
Where there is marked difference between the actual or mental ages of the
defendant and the victim and where the defendant took advantage of this.
13
Where there is any element of corruption.
14
Where the defendant has previous convictions, diversions or cautions which
are relevant.
15
Where the defendant is alleged to have committed an offence whilst on bail, on
probation, or subject to a suspended sentence or an order binding the
defendant to keep the peace, or when released on parole from a prison or a
place of detention or otherwise subject to a Court order;
16
Where there are grounds for believing that the offence is likely to be continued
or repeated, for example, where there is a history of recurring conduct.
17
The following list is some public interest considerations against prosecution
which may be relevant and require consideration by a prosecutor when
determining where the public interest lies in any particular case.  The following
list is illustrative only.
PUBLIC INTEREST CONSIDERATIONS AGAINST PROSECUTION
18
Where the Court is likely to impose a very small or nominal penalty.
19
Where the loss or harm can be described as minor and was the result of a
single incident, particularly if it was caused by an error of judgement or a
genuine mistake.
20
Where the offence is not on any test of a serious nature and is unlikely to be
repeated.
21
Where there has been a long passage of time between an offence taking place
and the likely date of trial such as to give rise to undue delay or an abuse of
process unless:
21.1
the offence is serious.
21.2
delay has been caused in part by the defendant.
21.3
the offence has only recently come to light; or
21.4
the complexity of the offence has resulted in a lengthy investigation.
22
Where a prosecution is likely to have a detrimental effect on the physical or
mental health of a victim or witness.
23
Where the defendant is elderly.
24
Where the defendant is a youth.
25
Where the defendant has no previous convictions.
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26
Where the defendant was at the time of the offence or trial suffering from
significant mental or physical ill-health.
27
Where the victim accepts that the defendant has rectified the loss or harm that
was caused (although defendants must not be able to avoid prosecution simply
because they pay compensation).
28
Where the recovery of the proceeds of crime can more effectively be pursued
by civil action.
6.9.1  Where information may be made public that could disproportionately
harm sources of information, international relations or national security.
6.9.2  Where any proper alternatives to prosecution are available.
29
These considerations are not comprehensive or exhaustive.  The public interest
considerations which may properly be taken into account when deciding
whether the public interest requires prosecution will vary from case to case.  In
each case where the evidential test has been passed, the prosecutor will weigh
the relevant public interest factors that are applicable.  The prosecutor will then
determine whether or not the public interest requires prosecution.

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APPENDIX 3

Treaty of Waitangi

Section 8 of the RMA requires councils to consider the principles of the Treaty of Waitangi in
exercising their functions and duties, which includes Compliance Monitoring Enforcement
functions. Officers also have obligations under the Local Government Act 2002.

Being familiar with Māori language, histories, aspirations, values, and cultural customs helps
us to build strong relations and maintain a high level of professionalism and cultural
competency when dealing with Māori.11 Council provides resources12on Wharu Kura to assist
in training.

The Principles of the Treaty of Waitangi 13

11https://wccgovtnz.sharepoint.com/sites/HowWeWork/SitePages/Culture%20and%20inclusion/Mao
ri%20resources%20hub/default.aspx
12https://wharekura.wcc.govt.nz/totara/catalog/index.php?cfp_multiselect_kthpeoplekiteho_79867[]
=Building%20teams%2A&cfp_multiselect_kthpeoplekiteho_79867[]=Collaborating&cfp_multiselect_k
thpeoplekiteho_79867[]=Connecting&cfp_multiselect_kthpeoplekiteho_79867[]=Developing%20self
%20%26%20others&cfp_multiselect_kthpeoplekiteho_79867[]=Inclusiveness&cfp_multiselect_kthpe
oplekiteho_79867[]=M%C4%81tauranga%20M%C4%81ori&orderbykey=featured&itemstyle=narrow
13 Best Practice Guidelines for Compliance, Monitoring and Enforcement under the Resource
Management Act 1991, page 27 https://www.mfe.govt.nz/sites/default/files/media/RMA/best-
practice-guidelines-cme.pdf
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Appendix 4:

Infringement Fine Details

Issuing of fines pursuant to the various Acts:

•  Building infringement Offences are outlined in Schedule 1 of the Building
(Infringement Offences, Fees, and Forms) Regulations 2007. Schedule 1 details all
offences against the Act. Those commonly considered are.

o  Section 108(5) (aa) – failure to provide TA a warrant of fitness
o  Section 168(1) – failure to comply with a notice to fix
o  Section 363 – using a building with public access where no CCC or CPU has
been issued

•  Resource Management Act infringement offences are outlined in schedule 1 of the
Resource Management Act (Infringement Offences) Regulations 1999.

•  The process for infringing food businesses is outlined in  s218-221 of the Food Act
2014. Infringement notices are provided in Schedule 3 of the Food Regulations 2015.

•  Section 14 of the Litter Act 1979 outlines the infringement notice process. Where a
Litter Control Officer observes a person committing an infringement offence or has
reasonable cause to believe such an offence is being or has just been committed by
that person, an infringement notice in respect of that offence may be issued to that
person by that Officer.

o  Warning letters shall be issued to allow the person responsible for littering
an opportunity to comply prior to issuing an infringement fine Litter Act
1979

•  The Sale and Supply of Alcohol Act 2012 outlines the process for issuing an
infringement notice. an infringement notice may be issued if an inspector or
constable observes a person committing an infringement offence or has reasonable
cause to believe such an offence is being or has been committed. The fees are
prescribed in the Sale and Supply of Alcohol Regulations 2015. An Inspector may also
take a Licensee or Duty Manager to ARLA - ( Alcohol Regulatory Licencing Authority)
to apply to either suspend or cancel their licence or managers certificate.

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