Pollute and Pay

The Resource Management (Consenting and Other System Changes) Amendment Act 2025 (Act) received Royal Assent on 20 August 2025. Coming largely into effect on 21 August 2025, the Act imposes significant uplifts in the maximum fines available under the Resource Management Act 1991 (RMA).

For a natural person:

• Maximum fines have increased from NZD300,000 to NZD1 million.
• The maximum term of imprisonment has decreased from two years to 18 months.

For a non-natural person:

• Maximum fines have increased from NZD600,000 to NZD10 million (2025 uplifts).

The decrease in maximum imprisonment term removes the ability to elect jury trial, meaning all offences will be dealt with by a Judge alone. In addition, defendants will no longer be able to rely on insurance to pay these increased fines as the Act makes insurance against fines unlawful.

 

What will the impact of the 2025 uplifts be?

Generally, the average fines awarded in sentencing decisions have been steadily increasing over time (See Figure 1). To date, this is likely due to a range of factors, including inflation, the 2009 uplifts, and the Courts taking environmental offending more seriously. It could also reflect greater Council action and resourcing for environmental offending, and strong baselines of fines being set.

However, we anticipate that these changes will not be nearly as impactful as the 2025 uplifts, which increase the maximum penalties on a scale not yet experienced under the RMA.

 

Average fine awarded in sentencing decisions in New Zealand (NZD)

Figure 1: The average fine awarded in sentencing decisions in New Zealand in 1994, 2004, 2014 and 2024.

 

How did the Courts approach previous uplifts?

The 2025 change provides an opportunity to reflect on how the Courts responded when maximum penalties were previously lifted in 2009 – from NZD200,000 (for both companies and individuals) to NZD600,000 for companies and NZD300,000 for individuals (2009 uplifts). The 2009 uplifts increased fines for companies by a factor of three (300%), and for individuals by a factor of 1.5 (150%).

Canterbury RC v B J Dakin & Company Ltd (DC Christchurch CRI-2010-009-7053, 10 June 2010

District Court, Christchurch) was a prosecution for offending that occurred in October 2009, shortly after the implementation of the 2009 uplifts. The Court therefore had to bear in mind the uplifts in establishing the starting point. In the context of the defendant company, Judge Jackson said:

"…there needs to be a substantial uplift in the existing level of fines to reflect in this case a three-fold increase in maximum fines now imposed on companies under the Resource Management Act."

In that case, the District Court applied a three-fold uplift to the appropriate starting point, from NZD10,000 to NZD30,000. The uplift was applied after the Court considered that the maximum fine for a company carrying out this offence had generally tripled, therefore the starting point should also. In the future, companies convicted of close to top-end offending can expect an initial starting point of NZD30,000. However, given the offence occurred within days of the amendment coming into force, the starting point was reduced to NZD20,000.

Nelson City Council v Dalpeko Holdings Ltd (DC Nelson CRI-2012-042-537, 23 May 2012 District Court, Nelson) concerned unlawful excavation in August 2011. The District Court noted that while both parties cited factually similar cases, they were pre-2009 uplift decisions. The Court instead relied on Auckland City Council v Yu, which, despite being pre-2009 and involving more serious offending, used a starting point of NZD30,000. The Judge adopted this same figure for Dalpeko, acknowledging that some uplift was warranted but rejected an increase by a factor of three for companies, particularly given the comparative sentencing decisions were pre-2009 uplifts and had substantially different factual circumstances. More generally, the High Court has commented since the 2009 uplifts, that the primary sentencing goal in an environmental prosecution, must be deterrence; both of those before the Court and others who might commit like offences (Glenholme Farms Ltd v Bay of Plenty Regional Council [2012] ELHNZ 358, at [41]).

Outside an RMA context, the High Court decision in Stumpmaster v Worksafe New Zealand [2018] NZHC 202 considered the consequences of an uplift of maximum fine from NZD250,000 to NZD1.5 million for offending under the Health and Safety at Work Act 2015, ie an increase of a factor of six. The Court referred to R v Richardson, which makes it clear that sentencing Courts cannot ignore this type of uplift, and are required to take such legislative changes into account.

In considering how to approach the uplift, the Court looked carefully at the purpose of the increase, concluding that the increases reflected the standard legislative intention in such cases. That is, the existing level of sanction was seen as inadequate to achieve the statutory purposes, so the maximum sentence was increased. There was some discussion as to whether the increase was to address a perceived inadequacy in sentencing for the worst cases, and therefore that implementation of the increase should see little change at the lower end of culpability, with greater proportionate increases found at the upper end of the scale. The Court observed that there was some case to increase the lower culpability band by a lesser amount, as these generally involve a minor slip-up from an otherwise correctly operated business. Ultimately the decision made the following uplifts to the bands. Interestingly, except for the lower-level offending, the increase was essentially an increase by the factor of six across the bands. This is somewhat different to an RMA context, given the use of banding for determining appropriate fines in a health and safety context.

Figure 2: Culpability bands and the application of an uplift multiple (factor of six)

Given this, the reasons for the uplift in the RMA penalties will become important in determining what the uplifts should be. The Regulatory Impact Statement notes that there is a need for a maximum fine that deters non-compliance with the rules, to address that many offences under the RMA involve an element of commercial gain; and that fines are sufficiently low that they may be seen as a licensing fee. Accordingly, perhaps we will see a greater increase in cases where there is a clear need for further deterrence, or there is an element of commercial gain.

 

So how will the Courts respond to the 2025 uplifts?

It is important to note that the Courts have been clear that sentencing "is most emphatically not and never has been a mathematical exercise" (Trent v Canterbury Regional Council [2021] NZCA 123), and that the sentencing approach will always depend on the facts and circumstance of a case. However, the degree of increase in penalty is a point which will have to be considered, and a mathematical approach gives an indication of a possible starting point to analyse, which will then need to be considered against the particular circumstances of the case.

For example, if the Court were to apply the approach of Dakin, we can expect to see the Courts calculating starting points with reference to previous sentencing decisions in the usual way but applying an uplift to reflect the amount that the fines have increased. In the case of an individual, that might involve lifting the relevant starting point by a factor of just over three and in the case of a company, multiplying by more than 15.

We have previously looked at the average fine imposed across a range of years in Figure 1 (noting that this is a relatively broad assessment). Assuming that fines will increase by a factor of three, the trend graph below would be seeing average fines approaching NZD150,000 at a minimum, as three times the current average. This only allows for the increase against individuals, so this figure could also be higher, taking into account the significant increase of the maximum penalty against companies.

 

Average fine awarded in sentencing decisions in New Zealand

Figure 3: The average fine awarded in sentencing decisions in New Zealand from 2004, 2014 and 2024, with the possible average fine in 2026 based on the 2025 uplifts

However, no two cases are the same and there will of course be factors relevant to the specific offending and defendant(s) which are considered in determining an appropriate starting point, meaning that a simple calculation will not be the answer to everything. In addition, as demonstrated with the 2009 uplifts, the courts retain discretion and may not be attracted to this purely mathematical approach.

 

How will the 2025 uplifts impact on financial capacity to pay a fine?

Such significant fines, together with the removal of the ability to obtain insurance for environmental fines will likely increase arguments by defendants that they lack capacity to pay a fine. When determining a fine, the Court must take into account the financial capacity of the offender. In some instances, a "declaration as to financial capacity" may be required.

If the defendant does not or will not have the means to pay the fine, the Court can decide not to impose a fine. If a defendant does not have the capacity to pay a fine, a community-based sentence is available to the Court, ie a sentence of community work, supervision or community detention. How many hours of community service could be imposed varies, depending on the type of offending. Often the hours of community service imposed is calculated by first determining the comparable starting point (which is typically financial in environmental offending), and then converting this to an hours figure. Recent community service sentences include Auckland Council v Maele & Renolution Limited, where a starting point of NZD15,000 was converted to 100 hours of voluntary work. Potentially the uplift in fines will also result in both more community-based sentences, and at higher hours. If this is the case, then prosecuting agencies may wish to consider how they approach community-based sentences.

 

Will we see an increase in prosecutions?

It remains to be seen whether the increase in maximum fines will lead to a rise in prosecutions. Given that 90 percent of fines are returned to the Council, the 2025 uplifts may make prosecutions more financially viable, as generally the costs of a prosecution far outweigh any fine paid to Council. However, the underlying risks of litigation persist, and these changes may also incentivise defendants to contest charges more vigorously.

 

When will we see the 2025 uplifts impact sentencing outcomes?

Section 6 of the Sentencing Act 2002 provides that penal enactments must not have retrospective effect to the disadvantage of the offender, meaning that offences committed prior to the date of Royal Assent will benefit from the previous, lower maximum penalties. Given this, and the time usually taken for charges to be filed, and a matter to proceed to sentencing, we anticipate that it may take a few years for the 2025 uplifts to impact sentencing outcomes.

 

Conclusion

The 2025 uplifts represent a significant shift in the RMA enforcement regime, sending a clear message that environmental compliance is to be taken seriously. With fines now far exceeding previous limits and insurance for fines no longer an option, the consequences of offending are more severe than ever.

It is challenging to confirm exactly how this will play out, as individual circumstances will still be critical, and there will be some time required for the changes to bed in. While courts may look to past decisions and apply proportional uplifts, each case will still turn on its own facts. Ultimately, these changes are designed to ensure that fines act as a true deterrent, not a cost of doing business.