A report card on our environmental watchdogs, buried for the second straight year, might have its funding pulled. David Williams reports
A report critical of regional and unitary councils has been buried – again.
Last year, an independent report on the councils’ compliance, monitoring and enforcement functions was publicised on Budget day, when most journalists are consumed by a Government announcement blitz.
The second report, finished in February, is nowhere to be seen. Local Government New Zealand (LGNZ), which at least put out a press release last year, hasn’t even put it on its website.
It’s an ironic twist for something created with transparency in mind. The reports were commissioned by the regulatory managers at the 16 regional and unitary councils to measure and improve their performance.
Horizons Regional Council chief executive Michael McCartney says there wasn’t an “external publication plan” for what was essentially an operational report – which ignores LGNZ’s PR push last year. McCartney’s written statement, emailed to Newsroom by LGNZ, says this year’s report is freely available to anyone asking for it. “Which is why we actively shared it with Newsroom when they asked about this work.”
The regional sector doesn’t shy away from criticism of its performance, he says – “that’s why we commissioned it in the first place”. “Of course we want to make progress faster,” McCartney says. “You have to measure if you want to achieve meaningful change.”
(Newsroom approached Alex Miller, Bay of Plenty council’s regulatory compliance manager, who chairs the compliance and enforcement special interest group (CESIG) which commissioned the report. He sent us to LGNZ “for consistency’s sake”.)
Fish & Game chief executive Martin Taylor suggests the burial of these reports is telling, and it’s confirmation Kiwis can’t have confidence regional councils are enforcing the current rules effectively.
“It seems regional councils are more interested in protecting private agricultural businesses instead of the environment for the benefit of all Kiwis,” he says, via email.
The big question now is, will there be a third report? There are hints funding to The Catalyst Group, which wrote the last two, might be pulled, thus sparing the sector having to answer awkward questions again next year.
“Where councils are demonstrably unlikely to take prosecutions, they may struggle to achieve behaviour change, as it may be perceived that non-compliance is unlikely to result in serious consequences.” – Catalyst Group 2018/19 report
Compliance, monitoring and enforcement, known as CME, is an essential check on consent conditions and permitted activities to ensure the environment’s properly protected. This country’s system is fragmented, with many national policies implemented by small local government agencies.
A report card on these environmental watchdogs is important, especially because of a long history of weak oversight from central government. (A reason why, perhaps, the sector is so sensitive to criticism.)
The first Catalyst Group report found “significant shortcomings”, while the second says “key trends remain consistent with the inaugural report”.
This year’s report, for the 2018/19 year, says 480 full time equivalent staff at councils across the country administer more than 220,000 resource consents. Almost 90 percent of consents that needed checking were monitored, and councils responded to an average of 99 percent of complaints.
More than 7100 formal notices were issued, a 76 percent jump on the previous year, and 61 prosecutions were concluded, with 99 more in progress. More than $1.8 million in fines were handed down to corporates and individuals.
However, Catalyst Group’s report card is mixed.
Some councils are performing strongly, checking all consents needing monitoring, responding to every environmental complaint. Others, meanwhile, are poorly resourced, behind in consent checks, and are loathe to prosecute the worst offenders.
Not all councils provided the requested data, leaving gaps, and making meaningful comparisons difficult.
A trend in this year’s report is the overwhelming majority of complaints coming from permitted activities, that don’t require consents, such as dairying and forestry. That’s problematic because the costs of monitoring allowable activities aren’t automatically recouped, unlike consent checks.
Report author Marie Doole suggests some permitted activities might need to be more strictly regulated.
Three councils – Waikato, Bay of Plenty and Auckland – dominate the prosecutions, while many did “little or none”. “Where councils are demonstrably unlikely to take prosecutions, they may struggle to achieve behaviour change, as it may be perceived that non-compliance is unlikely to result in serious consequences,” Doole writes.
Rules should be pragmatic, implementable
Council performances vary. Taranaki and Nelson monitored all consents requiring checking, while Otago lagged at 52 percent, and Auckland 60 percent. (Gisborne didn’t provide data.)
Across the country, an average of less than 1 percent of consents were found to be significantly non-compliant.
Wellington, Horizons, Canterbury and Hawke’s Bay were called out for having below average per-capita staffing. The report says: “There was something of a trend wherein councils which have on or above average levels of resourcing tended to take a higher number of enforcement actions.”
Auckland boosted CME staff in 2018/19 by reprioritising staff previously enforcing bylaws, and quadrupled its formal actions from 1114 to 4398, with a special focus on erosion and sediment control.
Otago and Gisborne councils still don’t have a formal enforcement policy, something recommended in the Ministry for the Environment’s (MfE) best practice guidelines. Gisborne is the only council not to have a conflict of interest policy – despite the potential for conflicts being “very acute” in CME.
David Burger, a spokesman for industry group DairyNZ, says the sector invests heavily in environmental research and communicating with farmers about rules and regulations.
“Council regulations vary around the country and we work collaboratively with central and regional government to ensure rules achieve the environmental outcomes sought within individual communities, and are also pragmatic and implementable for farmers,” he says in a statement. “We support councils being resourced sufficiently with staff and capability to fulfil their function as the regulator, and their role in compliance monitoring and enforcement.”
Councils should be resourced sufficiently to fulfil their regulatory functions, Burger says, adding: “We would not necessarily agree that prosecutions as a measure of effectiveness is correct. There are often many steps before a prosecution, involving education and guidance, and council resourcing plays a part in that.”
(Doole’s report doesn’t actually equate prosecutions with effectiveness. It notes high variability in prosecutions between regions, which is unlikely to be adequately explained by fluctuations in compliance alone.)
Strangely, Environment Canterbury, which completed two prosecutions and has seven pending, didn’t provide a significant proportion of prosecution data. Its regional leader of compliance delivery, James Tricker, says in a statement that’s because of “the timing of the sector report and our own reporting cycle” – something that didn’t trouble any other council.
In other gaps, Hawke’s Bay, Tasman, and Otago councils didn’t say how many incidents they physically attended or confirmed as breaches. Not all councils are playing ball, a sign, perhaps, the scrutiny is unwelcome.
“Exacerbating this fragmentation is a long history of weak oversight and guidance from central government, including MfE.” – Ministry for the Environment draft report, November 2019
The reports from Catalyst Group’s Doole were designed to strengthen data on councils’ performance. Her first report criticised councils’ idiosyncratic and piecemeal data management, which, she said, led to variable levels of transparency.
The reports are arguably doing the job. Many councils have cleaned up their CME reporting and provided more data. Auckland Council bumped up staff numbers in enforcement and monitoring last year, and vastly increase its formal actions (but not, as yet, prosecutions).
It would be ironic if the spotlight on council performance caused so much discomfort its funding was cut, leading to less transparency.
Asked if the work by Catalyst will be funded in the future, Horizons boss McCartney responds: “Regional councils will continue to collect and analyse this information going forward, although the format and timing of the next report have not yet been confirmed. Similarly, we will continue to look at how and where it best sits in the long term, at a national level.”
Regulatory managers obviously compare notes. In his statement, Environment Canterbury’s Tricker says: “We will of course continue to collect and analyse that data, and ensure we align our reporting with the sector report. Having said that, LGNZ has not yet confirmed the format and timing of the next report, and is looking at how and where it best sits in the long term, across the regional sector.”
The variability of councils’ monitoring and enforcement arms has been known for years.
A 1999 thesis study on Resource Management Act (RMA) prosecutions found many councils were “reluctant to prosecute (or indeed, use other formal enforcement tools)”. Reasons included the costs of prosecutions, defendants having the right to elect trial by jury, and most penalties imposed by courts.
Subsequent studies reinforce that finding: “A very significant proportion of authorities still shy away from exercising their enforcement functions.”
A 2013 Productivity Commission report said councils were guilty of inadequate monitoring, handed down insufficient penalties “to deter non-compliance” and inadequate ways to recover costs. Three years later, a report from MfE said CME functions at councils ranged from “robust to non-existent”.
The Environment Ministry is responsible for overseeing the RMA, including the performance of councils. (Fish & Game boss Taylor says: “MFE should being something about this but don’t seem to be across the issue.”)
Martin Workman, MfE’s acting deputy secretary of sustainable land use delivery, says in an emailed statement the ministry recognises robust CME is “essential to the functioning of our environmental regulatory system”. It has a CME policy team investigating how to strengthen performance of local government.
A draft report on CME presented last November to MfE’s executive leadership team, Te Purengi, says the effectiveness of councils is hampered by a lack of resourcing and prioritisation, and actual and perceived biases and conflicts of interest.
“Exacerbating this fragmentation is a long history of weak oversight and guidance from central government, including MfE. While some progress has been made in addressing this shortcoming in recent years, much work remains to be done.”
CME functions need greater investment, better technology, and more effective cost recovery provisions, the paper suggests.
The Environmental Protection Authority is now involved in enforcement and monitoring. Two years ago, it was earmarked $3.1 million, to be spent over four years, to establish an RMA enforcement unit. But the unit has been criticised as “not fit for purpose”, and the EPA has, in almost 10 years, never taken a single prosecution.
The MfE paper outlines several options for better monitoring and oversight of the resource management system, including a greater role for central government.
Fish & Game’s Taylor says changes to the RMA should force regional councils to do their job, and the Government should establish a national body, like a Water Commission.
Whatever happens, Doole’s latest report suggests future work should tie councils’ monitoring and enforcement to the state of the environment. It seems logical – as long as those assessments aren’t kept secret. Without that transparency, how can these agencies deliver the environmental improvements being demanded by the public?