Part 5: Carrying out compliance monitoring and taking enforcement action

Managing freshwater quality: Challenges for regional councils.

In this Part, we:

We looked at how the four regional councils were monitoring compliance with resource consents and plan rules. Compliance monitoring is an important part of managing freshwater quality. Compliance monitoring:

  • raises awareness with consent holders and land users about the level of environmental management that is required;
  • allows regional councils to detect where activities might be adversely affecting the environment and to take action to remedy and mitigate those effects;
  • gives assurance to communities that the management framework they were consulted on is being upheld; and
  • if applied equitably, ensures that the rules and conditions are upheld for all resource users.

Our overall findings

Taranaki Regional Council has a taken a strong approach to using formal enforcement tools for many years and reports low non-compliance rates. Horizons Regional Council and Environment Southland have improved their approach to monitoring dairy effluent compliance in recent years but are yet to see a significant drop in rates of non-compliance.

Waikato Regional Council has previously reported very high rates of non-compliance with its dairy effluent rules and resource consents to discharge dairy effluent to water. Recent reductions in non-compliance may indicate success with working more closely with the sector to promote compliance. Waikato Regional Council needs to improve its processes for resolving non-compliance and to reduce non-compliance related to resource consents to discharge treated dairy effluent to water.

Since 2009/10, Environment Southland has been operating a more targeted dairy effluent compliance monitoring programme that inspects all dairy farms with more than 50 cows at least once each year. Environment Southland does not have robust systems for monitoring compliance with permitted activity rules and can be slow to take enforcement action in instances where non-compliance is ongoing.

We were concerned to note that councillors in all the regional councils we audited had some involvement either in deciding whether the council should prosecute or investigating cases after the decision to prosecute had been made.

In central government, enforcement decisions are made by staff rather than elected representatives, so that decisions are independent of political influence. We see no reason for different principles to apply when the enforcement agency is a local authority. The Crown Law Office's Prosecution Guidelines have general application for all public prosecution activity.

In our view, councillors should not be involved in investigating breaches, or deciding whether to prosecute. To ensure fairness in matters of non-compliance, councillors should endorse an enforcement policy and should expect staff to rigorously apply that policy.

Taking enforcement action under the Resource Management Act 1991

A regional council can choose to respond to non-compliance by informal means, such as issuing a warning or working with the consent holder or other alleged offender to educate them and bring about compliance. The RMA also provides formal enforcement tools for regional councils to use if the RMA, its regulations, or regional plan rules are breached, or if the conditions in a resource consent have not been complied with. These enforcement tools include:

  • Abatement notice – this is served by a council and directs a person to cease an activity that is adversely affecting the environment. Failure to comply with an abatement notice can result in fines or imprisonment.
  • Infringement notice – this is issued by a council enforcement officer if they observe, or have reason to believe, that a person is committing an infringement offence. Infringement fees range between $300 and $1,000.
  • Enforcement order – this is issued by the Environment Court. Any council or member of the public can apply directly to the Environment Court for an enforcement order. It also allows the council to recover clean-up costs from the polluter.
  • Prosecution – a council can prosecute an alleged offender, which can result in the District Court imposing a penalty. Penalties can include restorative justice, a fine of up to $300,000 or a term of imprisonment for up to two years for a person, or a fine of up to $600,000 for a company.

Trends in taking enforcement action

In recent years, local authorities have moved away from informal responses to non-compliance with resource consents towards using stronger and formal enforcement tools.

Nationally, the number of infringement notices issued more than doubled between 2001 and 2008. There were about 600 infringement notices issued in 2001/02, and more than 1500 issued in 2007/08. The numbers of prosecutions taken by local authorities has also more than doubled in recent years – up from an average of 39 each year during the first 10 years of the RMA's implementation to an average of 82 prosecutions each year from 2005 until 2008. Since mid-2001, the largest proportion of prosecutions under the RMA involved discharges to water (or onto land where the discharge could enter water) by the agriculture sector. The size of the fines imposed by the Environment Court has also increased.

Achieving national consistency in compliance monitoring

The Compliance and Enforcement Special Interest Group is a group of staff from a number of regional councils who work on compliance and enforcement. This group has been working to bring more consistency to how regional councils classify non-compliance and significant non-compliance, so that non-compliance rates can be compared.

A nationally consistent set of criteria for measuring and reporting dairy effluent non-compliance has been prepared. Regional councils are using this to monitor compliance. Regional council staff also meet regularly to audit each other's compliance files and check that they are using the nationally agreed criteria consistently. This audit has been held for two years and has shown that there is a high level of consistency between regional councils when reporting dairy effluent compliance statistics.

Compliance frameworks of the four regional councils

Our consideration of the four regional councils' compliance activities has largely focused on their efforts in ensuring compliance with rules or resource consents related to managing dairy effluent. The regional councils also operated systems for monitoring activities at commercial and industrial sites.

Waikato Regional Council

There are about 4200 dairy farms in Waikato Regional Council's region, and the Council expects to monitor the management of dairy effluent on about 1000 farms each year. This represents nearly 25% of the farms in the region. In contrast, the other three regional councils we audited were carrying out annual inspections of every dairy farm in their regions. We note that the Waikato region contains many more dairy farms than the other three regions.

Most of the Waikato dairy farms (some 3600) discharge effluent onto land as a permitted activity under the regional plan. This means that they do not need a resource consent but there are still rules that they need to comply with. Waikato Regional Council carries out aerial surveys of dairy farms that operate under the permitted activity rule. Waikato Regional Council finds this method:

  • efficiently covers a large number of farms in a short period;
  • allows the whole farm to be viewed in a short period of time; and
  • effectively identifies significant non-compliance with the dairy effluent rules.

If an aerial survey detects suspected non-compliance, a compliance officer visits the farm to investigate. In 2009/10, only 58% of farms operating under the permitted activity rules fully complied – the remaining 42% were either partially non-compliant (17%) or significantly non-compliant (25%).

Dairy farms that operate under a resource consent to discharge treated dairy effluent into freshwater are inspected by council staff. Of these, 57% were found to be partially or significantly non-compliant in 2009/10. This figure rose to 62% in 2010/11.

The overall rate of significant non-compliance for farms operating under the permitted activity rule and resource consents to discharge treated dairy effluent to water in 2009/10 was 27%. We note that Waikato Regional Council reported a substantial reduction in significant non-compliance for all dairy farms – from 27% to 12% in 2010/11. The Council also reported that the seriousness of breaches has decreased in recent years.

Waikato Regional Council is committed to monitoring compliance with effluent management rules and resource consents, and to seeing a reduction in the rate of non-compliance. However, the Council notes that non-compliance with dairy effluent rules contributes only a small percentage of the overall contamination of freshwater from non-point discharge related to intensified land use. The Council notes that cow dung and urine washed off paddocks into streams and groundwater is a more significant source of nitrogen and bacterial contaminants.

Waikato Regional Council reports annually on its performance in taking action to resolve significant non-compliance. In 2009/10, it took action to resolve 99% of all significant non-compliance. Most of the actions taken were in the form of an advisory letter, written directive, formal warning, or an abatement notice. We note that Waikato Regional Council has higher rates of prosecution than all other councils in the country, and also makes greater use of formal warnings instead of issuing abatement or infringement notices than the other councils we audited.

Although Waikato Regional Council is taking action in response to significant non-compliance, it does not have good systems for recording how it resolves issues. The Council is falling short of its target for resolving significant non-compliance. In 2009/10, it aimed to resolve 80% of significant non-compliance within six months but managed to resolve just 27%.34 We note that Waikato Regional Council:

  • does not have an adequate system for recording performance against its target;
  • does not currently have consistent practices or a system that flags when action is needed to ensure that significant non-compliance (and the associated risk to freshwater quality) has been addressed;
  • does not have an enforcement strategy for dealing with repeat non-compliance and for monitoring progress with this; and
  • has a degree of inconsistency in how staff categorise the findings of investigations (for example, what is compliant or non-compliant) and in the types of responses to known non-compliance.


Although Waikato Regional Council has previously reported very high rates of non-compliance with its permitted activity rules and with resource consents to discharge treated dairy effluent to water, there has been a considerable drop in overall rates of significant non-compliance in 2010/11. The rates of significant non-compliance with dairy farms resource consents to discharge treated dairy effluent to water remains high at 28%.

Waikato Regional Council has worked closely with Fonterra, DairyNZ, and Federated Farmers35 to address issues of non-compliance during the last five years. The reduced rates of significant non-compliance might show what can be achieved by the dairy sector working alongside regional councils. It might also indicate a change in farmers' behaviour because of a strong history of Waikato Regional Council taking prosecutions for serious non-compliance.

Horizons Regional Council

The last few years have seen a new determination in Horizons Regional Council to ensure that consent holders comply with the conditions in their resource consents and with regional plan rules. Beginning with the 2008/09 dairy season, Horizons Regional Council ran an "amnesty period" where dairy farm consent holders had time to get their consents in order. About 200 consent holders contacted Horizons Regional Council and asked for the Council's assistance to rectify non-compliance. We see this as an effective approach to improving on-farm practice and what can be achieved by regional councils working alongside farmers.

After this, the region's 900 dairy farms were inspected during a two-year period to assess compliance with discharge consents and the regional plan rules associated with that farming activity. Staff issued abatement notices and infringement notices if they found evidence of significant non-compliance with consent conditions. This non-compliance usually featured effluent discharge onto land and then into water. This was either a direct discharge to surface water or had potential to enter groundwater. Re-inspections of these properties showed that most consent holders had taken action to rectify problems. During 2010/11, Horizons Regional Council's compliance team inspected all dairy farms in the region.

In 2008/09, the fees for consent monitoring were also restructured. A standard annual fee was set for discharge consents, and higher fees were set for non-compliance.36 This funding regime is based on a polluter-pays principle and is focused on recovering the actual and reasonable costs associated with monitoring compliance.

We were impressed with the robust inspection manual Horizons Regional Council has compiled for its compliance staff, especially with its focus on collecting all the information required to take enforcement action during an inspection visit. Horizons Regional Council completed six prosecutions in 2009/10, and the Council considers that it has been able to successfully prosecute when it considered prosecutions necessary. These prosecutions have resulted in convictions for breaches of the RMA. Offenders have typically received large fines and been ordered to pay substantial costs to Horizons Regional Council.

Despite the increase in effort in monitoring compliance and the stronger stance taken with non-compliance, Horizons Regional Council has still reported an overall non-compliance rate of 17% during the years 2007/08, 2008/09, and 2009/10.


Horizons Regional Council has a strong framework for implementing compliance monitoring. This includes regular inspections of compliance with dairy farm resource consents and financial disincentives for non-compliance. The compliance monitoring programme has been strengthened since our audit in 2005.

Horizons Regional Council has robust procedures for inspections, which has resulted in it taking more enforcement action. In our view, Horizons Regional Council's approach to compliance is fair and consistent for resource users throughout the region.

Taranaki Regional Council

Taranaki Regional Council has set up consistent processes for monitoring consents and enforcing compliance. Notable features of Taranaki Regional Council's compliance and enforcement programmes are:

  • a monitoring programme designed for each resource consent at the time it is issued – for significant consents, this includes a consultation process with interested parties;
  • annual inspections of all dairy farm discharges are also used as an opportunity for Taranaki Regional Council to offer advice (including on how farmers can prepare for increasing expectations about environmental management) and to build relationships with farmers, which in turn supports uptake of Taranaki Regional Council's riparian management programme;
  • all dairy farms that fail to meet council policy, consents, and conditions are re-inspected, and the consent holder pays all the monitoring and inspection costs; and
  • at the time of our audit, Taranaki Regional Council did mostly visual inspections of dairy effluent ponds, rather than taking monitoring samples to confirm that the quality of the effluent discharged to waterways met resource consent conditions.

Compared with other regional councils, Taranaki Regional Council reports a very low non-compliance rate – 4.4% in 2009/10. We note that this low non-compliance rate is based on visual inspections of effluent management systems. Taranaki Regional Council considers that its visual inspection of effluent ponds is robust and is supported by scientific testing. As of 2011/12, the Council will also routinely sample farm effluent systems.

Taranaki Regional Council consistently takes enforcement action where necessary. The Council considers that it made extensive use of enforcement action in the 1980s and 1990s, which now means that less enforcement action is necessary. The Council considers strategic use of enforcement action is a tool to modify attitudes and encourage environmental outcomes.


Although we consider that Taranaki Regional Council's dairy effluent management programme is managed efficiently, its effectiveness depends on effluent systems being sized correctly and functioning properly and on the appropriateness of the limited set of conditions on the discharge consents.

At the time of our audit, most compliance monitoring inspections relied on a visual assessment of the effluent management system, rather than testing the quality of the discharges and the effects of the discharges on the environment. Recent changes to Taranaki Regional Council's dairy monitoring programme to add scientific testing of effluent systems will strengthen the compliance inspection framework.

Environment Southland

In 2009/10, Environment Southland began using a different dairy monitoring programme compared with previous years. The new programme was designed in consultation with dairy sector representatives (Federated Farmers and DairyNZ). Environment Southland reports that all dairy farms with more than 50 cows are inspected for compliance with resource consent conditions at least once each year. Farms with more than 600 cows are generally inspected twice each year, once by air and once on the ground.

The inspected farms are given a grading, and those classified as significantly non-compliant are re-inspected as soon as possible. Between September 2009 and June 2010, Environment Southland carried out 1293 inspections and found a significant overall non-compliance rate of 14.6%. Environment Southland states that if farms are found to be significantly non-compliant on repeat inspections, staff work with the consent holder to achieve compliance. Environment Southland states that it takes enforcement action if this approach does not work.

Compared with the other three councils, at the time of our audit Environment Southland made less use of formal enforcement tools. We noted an instance where four inspections on one dairy farm during 2009 and 2010 were classified as finding significant non-compliance, but no enforcement action had been taken.

In 2009, Environment Southland commissioned a review of its compliance work. The review identified that compliance staff were frustrated by what they felt were ineffective policies, procedures, and systems to support their work. The review recommended improvements to the incident investigation process and an increase in the transparency and accountability of the decision-making process. Environment Southland's enforcement policy has been updated as part of this work, and Environment Southland is working to improve its documentation and information systems and to standardise its approach to enforcement.

Environment Southland's dairy monitoring programme does not include formal monitoring of compliance with the permitted activity rules for dairy farming and the best practice advice included in consents. The permitted activity rules and the best practice advice covers riparian management and fertiliser application. Compliance staff keep an eye on compliance with permitted activity rules during aerial and ground inspections, and also rely on complaints from the community to detect non-compliance for these activities. Environment Southland staff consider that they are not resourced enough to monitor compliance with permitted activity rules.


Since 2009/10, Environment Southland has been operating a more targeted dairy effluent compliance monitoring programme that inspects all dairy farms with more than 50 cows at least once each year. Environment Southland does not have robust systems for monitoring compliance with permitted activity rules and can be slow to take enforcement action when non-compliance is ongoing.

Decision-making for taking enforcement action

At all four regional councils, staff were responsible for issuing abatement and infringement notices. At the time of our audit, Environment Southland and Waikato Regional Council compliance staff needed approval from managers to issue infringement notices. At Environment Southland, this was a factor in the delays in taking enforcement action. Environment Southland's compliance staff are now encouraged to issue infringement notices without management approval when they consider this action is justified. The number of infringement notices issued between 2009/10 and 2010/11 has more than tripled.

At Waikato Regional Council and Taranaki Regional Council, councillors decide whether to prosecute those who breach the RMA. At Horizons Regional Council and Environment Southland, decisions to prosecute have been delegated to senior managers. However, we note that councillors at Environment Southland are part of a sub-committee that decides whether to proceed with prosecution and, at Horizons Regional Council, councillors can become involved when a decision to prosecute has been made.

At Horizons Regional Council, councillors have become involved to the extent that they carry out their own investigations without the knowledge of the council staff involved.

At Environment Southland, after a staff recommendation to prosecute, the potential defendant can appear before a prosecution sub-committee. Membership of this sub-committee includes senior council staff and two councillors. Its purpose is to give the potential defendant a chance to explain what went wrong. If the prosecution sub-committee considers that the alleged offender will remedy the problem, it may resolve not to proceed with prosecution. This approach is intended to have the dual benefit of saving Environment Southland the cost of prosecution and causing the non-compliant activity to cease.


The Crown Law Office's Prosecution Guidelines are clear that prosecution decisions should be free from political influence. The independence of the prosecutor is described as "the universally central tenet of a prosecution system under the rule of law in a democratic society".

In central government, there is a strong convention that enforcement decisions are made by officials, independent of political influence, because it is seen as "undesirable for there to be even an appearance of political decision-making in relation to public prosecutions".37 This convention has been given statutory recognition in section 16 of the Policing Act 2008. We see no reason for different principles to apply when the enforcement agency is a local authority. At least one regional council has had legal advice to this effect, but has not acted on it.

In our view, councillors should not be involved either in decisions to prosecute or to investigate or hear grievances about cases. In our 2005 report, Horizons and Otago Regional Councils: Management of freshwater resources, we concluded that, to ensure fairness in matters of non-compliance, councillors should endorse an enforcement policy and expect staff to apply such a policy equally. We still endorse this approach.

Recommendation 8
We recommend that all regional councils and unitary authorities review their delegations and procedures for prosecuting, to ensure that any decision about prosecution is free from actual or perceived political bias.

34: This figure is for all compliance activities, not just those related to freshwater quality.

35: Federated Farmers is an independent rural organisation that advocates for farmers and the role of farming in the New Zealand economy.

36: Standard non-compliance fees are $600 (excluding GST) and significant non-compliance fees are $1,200 (excluding GST), irrespective of the type of consent.

37: John McGrath QC (1998), "Principles for Sharing Law Officer Power: The Role of the New Zealand Solicitor-General", NZ Universities Law Review, Vol. 18, page 208.

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