Prepared with Support from Hans Van Kregten and Kaha Consultancy

Acknowledgements

Prepared with support from Hans Van Kregten and Kaha Consultancy.

The cover photo was taken by Wendy Bell, Waikato Regional Council.

Many thanks to the council, stakeholder and iwi representatives who assisted with this study.

Published in November 2016 by the
Ministry for the Environment
Manatū Mō Te Taiao
PO Box 10362, Wellington 6143, New Zealand

ISBN: 978-0-908339-48-8
Publication number: ME 1251

© Crown copyright New Zealand 2016

This document is available on the Ministry for the Environment’s website: www.mfe.govt.nz

Contents

Executive summary 5

Part 1: Introduction 7

1.1 Overview and purpose of report 7

1.2 Background to this research 8

1.3 Methodology 9

Part 2: Compliance, monitoring and enforcement regulatory settings 12

Part 3: Compliance and enforcement trends and issues 17

3.1 Variations in council approaches to compliance, monitoring and enforcement 17

3.2 Effectiveness of council compliance, monitoring and enforcement 32

Part 4: Looking forward – opportunities for improvement 38

4.1 Coordination of compliance activities 38

4.2 Community and iwi involvement 38

4.3 Role of central government 39

4.4 Consequences of non-compliance 41

4.5 Monitoring approaches 43

Part 5: Conclusions 44

References 46

Tables

Table 1: Demographics of, and issues faced by, councils included in this study 10

Table 2: Non-statutory and statutory enforcement actions 14

Table 3: Numbers of compliance, monitoring, investigation and enforcement staff and resource consent processing staff per council type (2014/15) 18

Table 4: Noise and other RMA complaints by council type 22

Table 5: Resource consents requiring monitoring by council type (source: NMS 2014/15 data) 23

Table 6: Number of formal enforcement actions by council type (source: NMS 2014/15 data) 26

Figures

Figure 1: Braithwaite Compliance Triangle 13

Figure 2: Environmental Risk Matrix 20

Executive summary

This report provides a summary of local government (council) compliance, monitoring and enforcement (CME) under the Resource Management Act 1991 (RMA). The findings in this report are based on conversations with representatives from 13 councils[1] and nine stakeholders and iwi,[2] as well as data collected by the Ministry for the Environment.

The report does not make recommendations – it is intended to inform further analysis by the Ministry on what changes (if any) are needed to improve CME. The report is also intended to inform councils’ CME activities, by providing examples of good CME practice by other councils.

The report is divided into three substantive sections:

·  Part 2 explains the regulatory context behind CME, including the key statutory requirements and enforcement options available for penalising/deterring non-compliance

·  Part 3 gives a summary of council CME activities and CME issues faced by councils

·  Part 4 sets out opportunities for improving CME, raised by councils and stakeholders.

The report observes a number of key trends and issues, including:

·  There is significant variation in the way councils carry out CME. Council approaches vary in terms of the priorities and resources given to CME activities, monitoring and investigation practice, enforcement decision-making processes and use of enforcement actions.

·  Resources for CME activities are very limited in some councils. As a result, many activities which require monitoring are not able to be monitored. For example, most councils carry out very little or no monitoring of plan rules (permitted activities).

·  There is a lack of data on council CME practices. As a result, it is difficult to assess the effect of CME on environmental outcomes.

Variations in council practices are acceptable where they reflect genuine regional/local differences. However variable/low-levels of CME can also lead to a lack of equity and public certainty, and impact negatively on environmental outcomes.

The report also observes examples of good CME practice, including:

·  Most councils take a risk-based approach to monitoring (see part 3.1.2), an approach which has been endorsed by both Cabinet and the Productivity Commission[3]

·  There are a number of voluntary industry, community and council initiatives which have been effective in lifting compliance (see part 3.2)

·  The Compliance and Enforcement Special Interest Group have developed the Regional Sector Strategic Compliance Framework 2016–18, which aims to improve consistency in councils’ CME practices.

Part 1: Introduction

1.1 Overview and purpose of report

This report provides an overview of research into compliance, monitoring and enforcement (CME) activities carried out by local authorities (councils) under the Resource Management Act 1991 (RMA). The report summarises key findings and insights from conversations with a range of regional, district, city and unitary councils throughout the country, as well as a range of stakeholders. The report does not provide analysis of the details of proceedings of RMA cases in the District Court (or appellate courts) or sentencing outcomes.[4]

This report and the research that sits behind it is intended to:

·  provide a more comprehensive evidence base to enable the Ministry for the Environment (the Ministry) to assess whether the policy settings behind CME are fit forpurpose

·  inform councils’ CME activities, by providing examples of other councils’ activities and outlining the strengths and weaknesses of certain approaches

·  help determine what data is requested from all councils annually through the national monitoring system (NMS)

·  enable the public to better understand how councils carry out CME.

For the purposes of this report, and unless the context otherwise implies:

·  compliance means adherence to the RMA, including the rules established under regional and district plans and meeting resource consent conditions

·  monitoring means the activities carried out by councils to assess compliance with the RMA, and responding to complaints from the public about potential breaches

·  enforcement is defined as the actions taken by councils to respond to non-compliance with the RMA.

Compliance, monitoring and enforcement are critical to effective implementation of the RMA

CME are critical to achieving the purpose of the RMA – the promotion of sustainable management of natural and physical resources. Investment in good plan, policy-making and resource consenting processes can be undermined if CME are done poorly.[5] CME are important for:

·  demonstrating the consequences of non-compliance with the RMA and providing both general and specific deterrence to prevent future offending

·  educating the public about the level of environmental management required under the RMA and how to improve compliance, and giving assurance to the public that rules and policies are being upheld

·  informing plan, policy and resource consent development processes so that they are enforceable and enforced, and effectively address relevant issues

·  upholding Treaty of Waitangi obligations

·  providing information on the state of the environment

·  providing for good environmental outcomes.

This report focuses on activities where the environmental effects of non-compliance are significant or potentially significant. The adverse environmental effects of non-compliance with noise standards, for example, are minor and only temporary. For that reason, non-compliance with noise standards, despite making up the majority of complaints under the RMA,[6] is not discussed in detail in this report.

1.2 Background to this research

The Ministry’s evidence base on compliance, monitoring and enforcement is limited

The Ministry, acting on behalf of the Minister for the Environment, has a duty under section 24(f) of the RMA to monitor the effect and implementation of the RMA, national policy statements and water conservation orders. The Ministry also has responsibility for ensuring the policy settings in the RMA are fit for purpose, and that any policy interventions are supported by robust evidence. As such, it is important that the Ministry has a good evidence base on CME, including on how councils approach their roles.

There are gaps and limitations in the Ministry’s evidence base on CME. The Ministry’s evidence on CME primarily consists of data from the RMA Survey of Local Authorities (until 2012/13), the NMS,[7] four reports on RMA prosecutions,[8] and ad hoc data and reports from other agencies[9] and councils. This does not, however, tell the full story of how councils carry out CME.

The Ministry’s evidence base lacks information on council approaches to CME, including how monitoring is carried out, how enforcement decisions are made and the overall relationship between compliance promotion and enforcement. In addition, the previous data collected has the following limitations:

·  the information collected by the RMA Survey of Local Authorities varied from year-to-year and is different to the NMS and as such, it is difficult to see temporal trends

·  the NMS data focusses on the effectiveness of RMA processes (such as compliance with statutory timeframes for processing resource consents), but there is more limited data on the impact of these processes on the environment.

Addressing these information gaps and limitations is necessary to provide a more complete understanding of how councils are carrying out CME, and implementing the RMA. The NMS will address, in time, a number of these limitations (such as temporal consistency).

Stakeholders, through reports and commentary in the media, have provided insights into council approaches to CME, highlighting weaknesses in some cases. For example, the report Towards Better Local Regulation (Productivity Commission, 2013) identified the following issues:

·  insufficient monitoring of RMA compliance by councils

·  lack of council focus of monitoring and enforcement resources on high-risk activities

·  insufficiency of penalties for deterring non-compliance

·  absence of cost-recovery mechanisms to fund monitoring and enforcement activities.

Local Government New Zealand (LGNZ), in a draft 2015 position paper,[10] also highlighted a number of aspects of the RMA that are creating difficulties for CME staff in councils, such as the lack of cost recovery mechanisms for monitoring activities, especially permitted activities.

1.3 Methodology

This report is based on:

·  publicly available information, and other documents provided by councils, stakeholders and the Ministry

·  data collected through the Ministry’s NMS and the RMA Survey of Local Authorities

·  discussions with 27 representatives (executive managers, compliance managers and compliance staff) from 13 territorial authorities, unitary authorities and regional councils (see Table 1 for a full list of councils)

·  discussions with 14 representatives from nine stakeholder and iwi organisations.

Councils were selected for this research based on the:

·  size of the council – the research sought views from staff representing a range of small, medium and large councils, and the population of council areas ranged between 8,500 and 1.4 million

·  nature of the activities addressed by the council – the research focused on activities that have significant environmental impacts, such as dairying, forestry and freshwater management

·  degree of growth in the city/district/region – councils experiencing high, medium and low growth were spoken to, as well as areas with declining populations.

A range of stakeholders with a strong interest in CME, and representing community, environmental, iwi, governmental and business, were selected to be involved in this study. Thestakeholders spoken to were DairyNZ, Forest and Bird, Environmental Defence Society, Environmental Protection Authority, New Zealand Productivity Commission and Local Government New Zealand. Federated Farmers and West Coast Regional Council also provided comments on a draft of this report.

Three iwi – Raukawa, Ngati Maniapoto and Waikato-Tainui – were consulted, to get an overview of iwi views on council CME activities in the Waikato Region.[11]

Table 1: Demographics of, and issues faced by, councils included in this study

Council / Resident population in 2013[12] / Population change 2006–13 /
Bay of Plenty Regional Council / 267,714 / + 4 %
Canterbury Regional Council (Environment Canterbury) / 539,433 / + 3.4 %
Waikato Regional Council / 403,638 / + 5.5%
Otago Regional Council / 202,470 / + 4.5 %
Unitary Authorities
Auckland Council / 1,415,550 / + 8.6 %
Gisborne District Council / 43,653 / – 1.8 %
Tasman District Council / 47,154 / + 5.7 %
Territorial authorities
Dunedin City Council / 120,246 / + 1.3 %
Hamilton City Council / 141,615 / + 9.6 %
Hutt City Council / 98,238 / + 0.5 %
Selwyn District Council / 44,595 / + 32.5 %
Opotiki District Council / 8,436 / – 6.0 %
Otorohanga District Council / 9,141 / + 0.7 %

Council staff spoken to were encouraged to be open and frank, and to express their views on the effectiveness of CME activities by their council. For that reason, council responses in this report are not attributed to individual councils.

Part 2: Compliance, monitoring and enforcement regulatory settings

This part gives an overview of the regulatory environment in which council CME activities sit, including the statutory role of councils to carry out CME, the relationship between compliance promotion and enforcement activities, and the mechanisms that are available for achieving compliance.

Compliance monitoring and enforcement is devolved to councils

In New Zealand, CME activities under the RMA are devolved to councils. Councils are responsible for “the establishment, implementation and review of objectives, policies, and methods to achieve integrated management of natural and physical resources”.[13] Section 35(2) also requires councils to monitor the state of the environment, and the efficiency and effectiveness of policies, rules and plans. CME are an important aspect of these statutory responsibilities.

The RMA allows for a graduated system of compliance and enforcement

The RMA does not prescribe how councils should carry out CME activities, and central government has not issued any comprehensive national direction or guidance on this.[14] Councils have considerable discretion to determine how to fulfil their statutory functions.

The RMA allows for a graduated response to compliance and enforcement – it is up to local authorities to determine the appropriate response to breaches of the RMA, plan rules and consents. Councils use education and awareness-raising as the preferred method for encouraging compliance, and when necessary, formal action to discourage and penalise non-compliance, and direct remediation of the damage. Formal enforcement actions are normally only taken when ‘softer’ measures of compliance promotion and coercion have failed, and/or the breach of the RMA is significant. This approach is shown in Figure 1.

Figure 1: Braithwaite Compliance Triangle[15]