Part 7: Acting on information and informing communities
- Responding to non-compliance with resource consents
- Responding to complaints and environmental incidents
- Responding to monitoring information
- How is information provided to communities?
7.1
In this Part, we examine how the selected 2 regional councils respond to:
- non-compliance with resource consents;
- complaints and environmental incidents; and
- monitoring information.
7.2
We also look at how the councils provide information to their communities.
Responding to non-compliance with resource consents
7.3
A set of options is available if a regional council decides to take enforcement action against consent-holders who do not comply with their resource consent conditions. These are set out in Figure 8.
7.4
Instead of enforcement action, the regional council may decide that an alternative approach is more suitable – for example, working with the consent-holder to achieve compliance or providing education programmes.
7.5
Regional councils have no obligation to take a consultative approach to noncompliance. A Ministry for the Environment report44 states that–
…There is a perception that local authorities should give lots of warnings and time to comply. The local authority attitude towards the use of enforcement mechanisms is that the mechanisms should only be used as a last resort and as a result there is a public expectation that local authorities will give warnings and allow time to comply. However, there is no mandatory requirement for local authorities to allow those who breach the Resource Management Act time to comply.
Figure 8
Enforcement options under the Resource Management Act
| Under the RMA, any person who does not comply with the Act, a rule in any plan, or resource consent conditions can be served with an: |
| Infringement notice – issued by a regional council or territorial authority enforcement officer if they observe, or have reasonable cause to believe, that a person is committing an infringement offence. Infringement fees range between $300 and $1000 and are set out in the Resource Management (Infringement Offences) Regulations 1999. |
| Abatement notice – served by a local authority to ensure compliance with regulations, a rule in a plan, proposed plan or resource consent, and to avoid, remedy, or mitigate any adverse environmental effects within the period specified in the notice. Failure to comply with an abatement notice can result in fines or imprisonment. |
| Enforcement order – issued by the Environment Court to ensure compliance with the same provisions as an abatement notice. It has additional scope, such as the ability to recover clean-up costs from the polluter. Any member of the public may apply directly to the Environment Court for an enforcement order. |
| A local authority may also prosecute an offender, which can result in the Environment Court imposing a fine of up to $200,000 or imprisonment for up to 2 years. |
Our expectations
7.6
We expected that regional councils would have a policy on what type of enforcement action would be taken and in which circumstances. We expected that this policy would be consistently applied.
7.7
Where non-compliance has serious environmental consequences, or consent-holders are repeat offenders or cavalier in responding to education initiatives, we would expect regional councils to take enforcement action.
Our findings
7.8
Both councils have enforcement policies to determine what action should be taken when non-compliance is detected. These documents offer a range of actions depending on the severity of the incident and whether it is a repeat offence.
7.9
The Chief Executive of each council makes decisions about pursuing prosecutions. However, senior staff members decide when infringement notices, abatement notices, or enforcement orders are to be issued.
7.10
We were told that staff at the Horizons Regional Council receive “inconsistent messages” from councillors about when to take enforcement action. We appreciate that there may be pressure on councillors to avoid being heavy-handed. However, in our view, to ensure equity in matters of non-compliance, councillors should endorse an enforcement policy and should expect staff to apply such a policy equitably.
7.11
Many stakeholders we spoke to considered that the response of both councils to non-compliance was weighted too heavily towards education, and that not enough enforcement action was being taken. Both the Horizons and Otago Regional Councils prefer to educate and work with consent-holders to remedy non-compliance rather than take enforcement action. Staff from both councils report that better results are often achieved with an education-focussed approach.
7.12
Regular reports on compliance monitoring activities are made to relevant committees at both councils.
7.13
At the Horizons Regional Council, these reports contain a good summary of action taken in response to non-compliance and identify where follow-up action is required. Subsequent reports do not state whether this follow-up action has been taken.
7.14
At the Otago Regional Council, these reports identify non-compliance, but provide limited information about action taken. Where comment on the action taken is included, the Council approach has been to ask consent-holders to ensure that they comply.
7.15
In 2002-03 and 2003-04, the Horizons Regional Council took 79 enforcement actions, and the Otago Regional Council took 89. In the Manawatu-Wanganui region, the majority were for rural activities (such as poor dairy effluent management). In the Otago region, the majority were infringement notices for poor dairy effluent management (reflecting the Council’s targeted monitoring of dairy farms) and for burning rubbish.
7.16
Interestingly, while farmers were subject to most of the enforcement action in each region, there was a strong feeling among the farmers we spoke to that some farmers were being allowed to “get away” with non-compliance, while others were spending time and money to comply.
7.17
When consent-holders see others “getting away” with non-compliance, it gives them little incentive to comply. Farmers also told us that when enforcement action is taken, it has a big effect on the others – making it an effective way to let people know what types of activity will not be tolerated.
7.18
Both councils see prosecution as a last resort and as being expensive and time-consuming. The Horizons Regional Council has prosecuted twice since 1998 and the Otago Regional Council twice since 2002. Some staff told us that prosecution does not necessarily make the problem go away.
7.19
Compliance staff also told us that it could be difficult to verify who had offended in some cases, and that it could be a challenge to establish cause and effect. To take enforcement action, council staff need to make a thorough assessment and collect evidence.
7.20
There were high levels of repeated non-compliance for discharges from wastewater treatment plants into freshwater. Rather than taking enforcement action, the councils are attempting to address this problem by requiring upgrades to wastewater treatment plants when resource consents come up for renewal.
7.21
Wastewater treatment plant operators (predominantly territorial authorities) can be under pressure to keep capital expenditure down, and a long resource consent renewal process can be seen as beneficial because capital spending is deferred.
Concluding remarks
7.22
Taking an educational approach has merit in that it helps the regional council maintain good relationships with consent-holders, and many of these will respond by improving their practices. However, enforcement action is appropriate where consent-holders are not willing to change their practices, or are repeat offenders.
7.23
Taking enforcement action in these circumstances is a valuable mechanism for signalling to the community which activities the regional council considers are unacceptable.
7.24
Councillors should endorse an enforcement policy and expect staff to ensure that this policy is applied equitably.
7.25
Both councils could improve their reporting to councillors and senior management on responses to non-compliance. These reports should include information on the follow-up action taken to ensure that the non-compliance will not continue.
Responding to complaints and environmental incidents
7.26
Under the RMA, regional councils are required to keep a summary of all written complaints received by them during the preceding 5 years about alleged breaches of the RMA or a Regional Plan, and information on how they dealt with each complaint.45
7.27
It is important for regional councils to respond to pollution complaints quickly so that environmental damage can be minimised, and sufficient evidence of any wrongdoing can be gathered in case the council wishes to take enforcement action.
Our expectations
7.28
We expected that regional councils would:
- have procedures in place for responding to complaints;
- investigate the cause of the complaints; and
- take action to prevent further incidents, and to avoid, remedy, or mitigate adverse effects where possible.
Our findings
7.29
Both councils have procedures in place for responding to complaints. They each operate a pollution hotline, which allows members of the community to make a complaint about, or inform the councils about, environmental pollution or an accidental spill. Once a call is taken, a compliance officer is sent to the site of the incident to investigate the source of the pollution.
7.30
In 2003-04, 374 environmental incidents were reported to the Horizons Regional Council. About 20% of these related to water.
7.31
Horizons Regional Council response times are related to the type of incident. Incidents considered urgent (such as a petroleum spill or illegal dumping of waste oil) are responded to within 4 hours, while investigations of other incidents (a dumped car with no immediate effects on the environment) may not take place for up to 2 days.
7.32
The Council reports that 52% of urgent incidents were responded to within 4 hours, and 49% of non-urgent incidents within 2 working days. It notes that response to incidents is restricted by staff availability.
7.33
The Otago Regional Council’s policy is to respond to complaints within half an hour of receipt and take appropriate action. In 2003-04, the Council received 927 complaints (about 20% related to water). The Council reports that it responded to 83% of these complaints within 30 minutes (the majority of those taking longer than 30 minutes involved a longer travelling time).
7.34
Some of the stakeholders we spoke to in both regions were able to identify incidents when the councils had made a good response to a pollution complaint and addressed the environmental effects arising from the incident. However, stakeholders were concerned that the councils did not always respond, or respond promptly, to pollution complaints. Some also commented that the respective council did not tell them the result of an investigation to a complaint that they had made.
7.35
Otago Regional Council staff told us that the public might think that a regional council had not responded to an incident when it had done so. In many instances, the pollution might not be evident when the compliance officer arrived on the scene, making it difficult to determine the source and severity of the pollution.
Concluding remarks
7.36
Responding to complaints is part of the “public face” of regional councils. Where the community perceives that regional councils are not fulfilling this role, it can become frustrated and lose faith in the council’s ability to protect the environment. This, along with reducing negative environmental effects, is an important reason to promptly respond to and investigate pollution incidents.
Responding to monitoring information
7.37
Monitoring information serves a number of purposes. For example, state of the environment monitoring shows how well the council is progressing towards its objectives and outcomes, and can also signal unexpected problems. Effectiveness and efficiency monitoring can highlight that a policy or method is not working in the way expected and needs to be amended.
Our expectations
7.38
We expected that regional councils would use their monitoring information to inform management decisions, and that councils would take action to respond to new and emerging issues.
7.39
We also expected regional councils to have a mechanism for capturing lessons learnt, and making amendments to planning documents where required.
Our findings
Responding to monitoring information
7.40
While the Horizons Regional Council has been collecting data for some time, it has only recently begun to turn this data into information. Ongoing analysis of data about the Manawatu River has allowed the Council to understand the state of water quality in the catchment, and this will lead to further analysis of trends.
7.41
For some time there have been indications that water quality is being affected by non-point source discharges. However, the Council is only now starting to investigate this issue.
7.42
The new water allocation policy in the Manawatu-Wanganui region was driven by an identified increase in demand for water.
7.43
There is evidence that the Otago Regional Council responds to state of the environment monitoring data – in particular, by tailoring its education programmes. For example, monitoring results showing degraded water quality in parts of the Lower Taieri led to a 5-year catchment programme to address water quality issues. This included a joint study with Dunedin City Council on septic tanks in the area.
7.44
In response to information that water in a number of catchments is fully allocated, the Otago Regional Council has devised measures to address the efficiency of water use.
Making amendments to planning documents
7.45
Both councils have systems in place to collect the information on operational issues that is needed to support policy amendments, and to identify lessons learned.
7.46
Staff at the Horizons Regional Council have the opportunity to make comments and provide feedback on plans and policies. These comments are then collated and staff are advised how their suggestions were dealt with.
7.47
Staff at the Otago Regional Council record how plans have been interpreted in various situations as “practice notes”. This information can lead to planning documents being amended.
Concluding remarks
7.48
There is some indication that the councils are using monitoring information to drive education programmes and the development of new policies.
7.49
Both councils have systems in place that allow staff to suggest possible changes to planning documents. These are good initiatives and useful to policy staff when preparing new policies and plans.
How is information provided to communities?
Our expectations
7.50
We expected that information on water quality and quantity in the region would be accurate and made available to the community in an understandable form. We also expected that the councils would publicly report whether their objectives and ERAs had been achieved.
Our findings
Public reporting of monitoring information
7.51
The Horizons Regional Council produced its first State of the Environment Report in 1999, and a second was produced in March 2005. An annual State of the Environment Report was produced in 2000-01. This report sets out relevant objectives and how the achievement of these objectives is determined by monitoring. Monitoring results are reported in an understandable form, and areas where more research or monitoring is required are identified.
7.52
In 2001, the Otago Regional Council produced a State of the Environment Report on the health of the region’s lakes and rivers. The report concluded that Otago’s waterways were in very good health and had improved during the previous decade, but that some areas should be targeted for improvement.
7.53
Stakeholders in both regions said that state of the environment reporting was not in a form that was useful for their requirements.
7.54
Neither council has compiled a report on the results of effectiveness and efficiency monitoring of their policies, rules, or methods, although this requirement was only introduced with the 2003 amendment to the RMA. The Ministry for the Environment considers that these reports should be made available at least once a planning document has been in effect for 5 years.
Availability of information
7.55
Both councils use their websites to provide reports and monitoring information to their communities.
7.56
Both councils provide up-to-date graphs and information on water quantity parameters, such as river level and flow, on their websites. This information can be accessed by irrigators to determine whether water can be taken from rivers. The community can use the information to check whether minimum flows have been breached. Some stakeholders we spoke to considered this information very useful.
7.57
The Horizons Regional Council also provides water quality results such as temperature, turbidity, and bathing water quality on its website at www.horizons.govt.nz. The Council provides downloadable copies of most of its key planning documents and publications on its website.
7.58
More than one stakeholder in the Manawatu-Wanganui region stated that they found it difficult to get information from the Horizons Regional Council, and after repeated requests had to resort to using the Local Government Official Information and Meetings Act 1987 and personal contacts within the Council.
7.59
Some stakeholders also told us that the Council does not provide affected parties to resource consents with a copy of the final consent. This means that stakeholders do not know if the conditions they agreed to are included in the final consent.
7.60
The Otago Regional Council website at www.orc.govt.nz has an electronic copy of the Regional Plan: Water and various newsletters. However, the Regional Policy Statement and most publications are not yet available online.
7.61
Stakeholders in both regions commented that they would like to see more reporting on compliance monitoring, and more action taken in response to non-compliance.
Concluding remarks
7.62
Both councils had published State of the Environment Reports, but neither council had reported publicly on whether the ERAs and objectives were achieved. In our view, this information should be provided in the councils’ effectiveness and efficiency monitoring reports.
7.63
Councils should be responsive to the information requirements of their communities. This includes providing a final copy of resource consents to affected parties, and information on compliance monitoring and responses to environmental incidents where appropriate.
7.64
The Internet is a useful way for the community to access planning and accountability documents. We consider that council accountability and planning documents should be available online.
44: Ministry for the Environment, 2001 – A Study into the Use of Infringement Notices Under the Resource Management Act 1991, page 5.
45: RMA, section 35(5)(i).
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