Why did a report on the performance of the country’s environmental watchdogs drop on Budget day? Perhaps because of the criticism it contained.
Just before 9am two Thursdays ago, Local Government New Zealand sent out an innocuous-looking press release about the performance of regional and unitary councils.
An independent report found their compliance, monitoring and enforcement functions were in “relatively good shape”, the statement said, and recommendations were made for improvements. Nothing to see here, it suggested.
Except the statement was dropped on Budget day, when most of the country’s journalists were consumed with Government’s biggest annual PR exercise. And the final report had been sent to councils before Christmas – more than five months earlier.
Yes, the councils subjected themselves to an independent survey, giving the most comprehensive picture of their performance in the Resource Management Act’s 27-year history. They’d potentially opened themselves up to public criticism. But the report had been dropped at a cynical time when most journalists couldn’t respond.
The Budget descended and, with a few exceptions, washed the report away from the news cycle, like a flooded river carrying detritus from an old rubbish dump. But it can’t avoid all news currents. The report is liberally sprinkled with restrained but pointed criticism for councils – including New Zealand’s biggest.
In her snapshot of the 2017/18 year, report author Marie Doole, of Catalyst Group, calls out some councils for “significant shortcomings” – though most are performing consistently.
Many councils weren’t able to provide “relatively basic information”, meaning their efficacy was opaque. Internal policies were incomplete in some cases. Without them, councils aren’t able to demonstrate their decisions are fair and clear.
Council reporting is patchy. Some couldn’t even provide an accurate number of complaints they’d received. Of the 29,290 complaints received, about 25,500, or 87 percent, are responded to – but fewer than 9000 in person.
Councils said almost 50,000 consents, or about a quarter, required monitoring, and 91 percent were. But monitoring levels varied, from 100 percent in Taranaki, Southland, and Nelson, to 28 percent in Canterbury.
Staffing for compliance, monitoring and enforcement is relatively low in several councils – “possibly too low to carry out the minimum requirements in the newly promulgated best practice guidelines,” Doole’s report says. This can’t be explained simply by a council’s budget, population or land area. Particularly when the Resource Management Act (RMA) says they can charge to recover costs.
That leaves the door open for the possibility that political prioritisation prevents some from doing their job. Or, perhaps, a council’s drive to be business friendly translates into little effort on prosecutions, which can be an important deterrent.
The work of regional councils, and their unitary cousins (territorial authorities that also have the responsibilities, duties and powers of regional councils), might seem dry but their importance can’t be understated.
They enforce the laws made by Parliament, local and national rules and regulations, and consent conditions. If their monitoring is weak and enforcement poor, that can lead to serious environmental problems. Conversely, an effective council can drive environmental improvements.
The performance of regional councils have been prominent in Newsroom’s environmental reporting. Canterbury’s regional council decided to confirm irrigation consents for a major Mackenzie Basin dairy farm, against its own ecological advice. And the chief executive of the Otago Regional Council overturned staff advice to approve a controversial extension to a Queenstown skifield.
A Ministry for the Environment report from 2016 said the RMA allows a graduated response to compliance and enforcement. It’s basically up to authorities to decide what’s appropriate. That can range from educating transgressors to formal warnings and prosecutions.
A 2013 Productivity Commission report said the challenge is striking the right balance between persuasion and coercion – and this balance might differ between councils.
There’s very little government oversight and, consequently, a wide range of interpretation of how councils should do their job. While their performance is, in general, improving, there’s a wide range of efficacy, as detailed in the Catalyst Group report, prepared for the compliance and enforcement special interest group.
“The council has perhaps pulled back from this role for at least the reporting year.” – Catalyst Group report
The Catalyst report by Doole – who, as an employee of the Environmental Defence Society, produced a report in 2017 pointing to possible political influence in regional council decision-making – calls out some councils by name.
Greater Wellington Regional Council had comprehensive policies but the lowest staffing levels in the regional authority sector. It has 15.5 full time equivalent staffers for a region that’s home to more than 500,000 people, across eight territorial authorities. Compare that with Canterbury, which has 43.7 FTEs or Waikato with 46.5.
That might explain Wellington’s “low activity levels” in compliance, monitoring and enforcement – activity that’s so low the report says it suggests “the council has perhaps pulled back from this role for at least the reporting year”.
Greater Wellington was one of five councils – the others were West Coast, Southland, Nelson, and Marlborough – that found no significantly non-compliant consents in 2017/18. (The report notes it was difficult to compare councils as they had different thresholds for non-compliance.)
Like Otago and West Coast, Wellington took relatively few formal actions – warnings, abatement notices and fines – for consent breaches. Southland, home to about 100,000 people, took more than three times the number of formal actions (excluding warnings) than Wellington – 118 versus 36.
Wellington had no successful prosecutions against individuals and corporates. Southland, meanwhile, was the prosecutorial star, securing 41 convictions against 11 individuals and 25 convictions against 11 corporate defendants.
Greater Wellington Regional Council’s acting general manager of environment manager Alistair Cross defends its staffing levels, saying the measure of staff to every 1000 people may not be the most appropriate, “given the concentration of our population in urban centres”.
Its approach is to only prosecute the most serious cases, Cross says – and regulatory tools are “only one method” of achieving environmental, behaviour change and community outcomes.
“On balance, we believe we have the right mix of services to ensure we secure compliance. Our emphasis is on working with, rather than against, entities to achieve performance. But where that’s not possible, or scale demands action, we will take it – we are currently prosecuting Wellington Water, for example, for a pollution incident in Porirua Harbour.”
Big isn’t always better
Three of the country’s 16 regional councils and unitary authorities – Auckland, Waikato and Canterbury – employ 54 percent of staff in this area. Waikato and Canterbury are the country’s best resourced regional councils for compliance, monitoring and enforcement.
While the scale of Auckland’s operation dwarfs all others, the Catalyst report says it still has below average staffing for its population. Its information management needs improvement, also, and it’s unclear, from the survey at least, how the Super City council splits its regional and local authority functions, a common complaint about unitary councils.
Auckland Council’s regulatory compliance manager Steve Pearce acknowledges in an emailed statement that there is room for improvement. But he says the report shows its regulatory compliance functions “are performing amongst the best in the country”.
Information and communications technology “has its challenges”, he says, “and we are working through them”. Regarding staffing, the council has the right resourcing for now, he says, but work is prioritised “where we can”.
Pearce says Auckland Council leads the country in enforcement. It responded to 100 percent of the 9022 complaints received – 3840 in person – and issued more than a third of all abatement and infringement notices last year. “We also sought the most enforcement orders from the Environment Court, with nearly half of those sought nationwide. Auckland also secured 35 convictions against a total of 11 individual defendants and 18 convictions against 16 corporate defendants across their entire range of functions, including the longest ever term of imprisonment under the RMA.”
High enforcement versus ‘weak’ policies
Otago’s regional council has a “high level” of enforcement proceedings, the report says, but it’s paired with a “weak” internal policy framework. It is one of only a few councils that don’t have an enforcement policy. Otago had below-average staffing, and needed to improve its information management, but had relatively comprehensive reporting.
A report to the council’s (ORC) regulatory committee in May notes it is improving the performance and effectiveness of its compliance team.
That includes recruiting four new compliance staff, appointing a permanent team leader of investigations and enforcement, and further training relevant staff. The paper, written by regulatory general manager Peter Winder, said significant changes are being made to processes and procedures for investigations and evidence collection, and the processes for the commissioning of legal advice and case management are being clarified.
In an emailed statement to Newsroom, Winder describes the Catalyst report as a “useful snapshot” highlighting areas of potential improvement. “We have already made great progress in this respect by increasing our compliance staff numbers, and we are currently revising our risk-based approach to how we prioritise complaints. We are pleased to see that ORC are among the most effective councils for prosecuting breaches of the RMA.”
Other specific comments from the Catalyst report include: Environment Canterbury’s (ECan) strong orientation on “relationships” can be a “brake on punitive enforcement action”; in Tasman, less than half of consents that required monitoring were monitored; Gisborne has a “developing” approach; and Waikato having a “bespoke” approach to managing compliance.
More general concerns are the involvement of chief executives in enforcement decisions, and questions about the monitoring of so-called permitted activities.
ECan chief executive Bill Bayfield says regional authorities are committed to running the survey again next year. “Most of the things that are needing to be addressed are being addressed now, collectively by us and individual councils.”
‘Better compliance and enforcement’
In last month’s Budget, the Government announced a $229 million water clean-up plan which was criticised as being opaque, with few details.
Finance Minister Grant Robertson said some of the water package would be spent on “improving consistency between councils” and “better compliance and enforcement”.
Martin Taylor, the chief executive of lobby group Fish & Game, told Newsroom the biggest issue with freshwater rules is “the performance of regional councils”. Some of that criticism is fair, Local Government New Zealand vice president Stuart Crosby responded, but the councils should be acknowledged for progress – “they definitely haven’t been sitting on their hands”.
Environment Minister David Parker told Newshub Nation last Saturday that regional councils and farmers will get help to provide quality data.
“For example, one of the tools that’s used by farmers to calculate their impact on the environment is a software tool called Overseer. Everyone agrees that needs to be substantially improved so there’s about $30 million in the Budget for that.”
* This story has been updated to include Auckland Council comment, which was originally sought from an email address the council says it no longer uses.