The Current State of Enforcement under the RMA Karenza de Silva, Environmental Lawyer Environmental Law Conference, 2 March 218, Thomson Reuters New Zealand The To pass a law and not have it enforced is to authorise the very thing you wish to prohibit. Attributed to Cardinal Richelieu (1585 1642) in The Times Book of Quotations (HarperCollins, Glasgow, 2) at 412. 1
Background Local authorities should take appropriate enforcement action when there is noncompliance unless there is a valid reason not to take action. As noted by Judge Sheppard in Culpan v Vose (1993) 2 NZRMA 38: For normal purposes, councils allow certain tolerances. Council Theofficials may choose not to enforce strict compliance where the degree of noncompliance is trivial and has no adverse effect on others. Such a practical approach has long existed, and is unobjectionable. There are five enforcement mechanisms in Part 12 of the RMA: abatement notices; infringement notices; excessive noise directions; enforcement orders; and prosecution. There is also informal enforcement e.g. verbal or written warning. All are effective when used appropriately. Note: Water shortage directions, declarations, and the power to undertake emergency works, are also included in Part 12 and, while relevant to enforcement, are not strictly enforcement mechanisms. MfE Data on Enforcement MfE has a responsibility under s 24 of the RMA to monitor and report on the effectiveness of the RMA and council performance in implementing the RMA. MfE undertook 11 bi-annual surveys between 1995 and 213 to collect information from local authorities about their use of RMA processes including enforcement. The reports are on the MfE website. The bi-annual survey was replaced in 214 with the National Monitoring System for the RMA. Data on implementation by local authorities of the RMA using this new system for the 214/215 and 215/216 financial years is on the MfE website. The 216/217 data is not currently available. The data from the excel spreadsheets on the MfE website was used to prepare the graphs on the following slides. The graphs show regional council and unitary authority use of abatement notices, infringement notices, applications for enforcement orders (including interim) and prosecutions. 2
Graph 1. Regional Councils & Unitary Authorities - Abatement Notices issued in 214/215 & 215/216 8 7 6 Number of Abatement Notices 5 4 3 2 1 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 Northland Auckland Waikato Bay of Plenty Gisborne Hawke's Bay Taranaki Manawatu- Wellington Tasman Nelson Marlborough West Coast Canterbury Otago Southland Regional Councils & Unitary Authorities Graph 2. Regional Councils & Unitary Authorities - Infringement Notices issued in 214/215 & 215/216 5 45 4 Number of Infringement Notices 35 3 25 2 15 1 5 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 Northland Auckland Waikato Bay of Plenty Gisborne Hawke's Bay Taranaki Manawatu- Wellington Tasman Nelson Marlborough West Coast Canterbury Otago Southland Regional Councils & Unitary Authorities 3
Graph 3. Regional Councils & Unitary Authorities - Applications for Enforcement Orders (including Interim) in 214/215 & 215/216 5 Number of Applications for Enforcement Orders 4 3 2 1 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 Northland Auckland Waikato Bay of Plenty Gisborne Hawke's Bay Taranaki Manawatu- Wellington Tasman Nelson Marlborough West Coast Canterbury Otago Southland Regional Councils & Unitary Authorities Graph 4. Regional Councils & Unitary Authorities - Prosecutions Initiated in 214/215 & 215/216 18 16 14 Number of Prosecutions 12 1 8 6 4 2 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 Northland Auckland Waikato Bay of Plenty Gisborne Hawke's Bay Taranaki Manawatu- Wellington Tasman Nelson Marlborough West Coast Canterbury Otago Southland Regional Councils & Unitary Authorities 4
Notes for Graphs 5 & 6 Graph 5 shows MfE Data on use of enforcement by regional councils and unitary authorities for 214/215 & 215/216 with Statistics NZ population data. Graph 6 is the same as Graph 5 with total Compliance, Monitoring, Enforcement (CME) staff (see table) for each regional council and unitary authority. The Y axis is the use of enforcement per 1, people. Each bar is then broken into the four categories, abatement notices, infringement notices, applications for enforcement orders (including interim) and prosecutions initiated. Regional Councils and Unitary Authorities with CME Staff. Council CME 215 CME 216 Northland Regional Council 16 16 Auckland Council 93 99 Waikato Regional Council 31.3 32.5 Bay of Plenty Regional Council 1 12.5 Gisborne District Council 4 3 Hawke's Bay Regional Council 6 6 Taranaki Regional Council 22 21 Manawatu- Regional Council 8 8 Wellington Regional Council 15 15 Tasman District Council 7 8 Nelson City Council 3 4 Marlborough District Council 7 8 West Coast Regional Council 4.5 4.5 Canterbury Regional Council 3 39 Otago Regional Council 15.2 16 Southland Regional Council 1 11 Graph 5. Regional Council & Unitary Authority use of Enforcement under RMA per Capita in 214/215 & 215/216 3 Abatement Notices Infringement Notices Enforcement orders Prosecutions initiated 25 Use of Enforcement per 1, People 2 15 1 5 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 Taranaki West Coast Northland Tasman Marlborough Auckland Nelson Southland Bay of Plenty Gisborne Waikato Hawke's Bay Canterbury Otago Wellington Manawatu- Regional Councils & Unitary Authorities 5
Graph 6. Regional Council & Unitary Authority use of Enforcement under RMA per Capita with CME staff in 214/215 & 215/216 3 Abatement Notices Infringement Notices Enforcement orders Prosecutions initiated CME per 1, pop 25 Use of Enforcement per 1, People 2 15 1 5 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 215 216 Taranaki West Coast Northland Tasman Marlborough Auckland Nelson Southland Bay of Plenty Gisborne Waikato Hawke's Bay Canterbury Otago Wellington Manawatu- Regional Councils & Unitary Authorities Populations for Regional Councils & Unitary Authorities - 215 & 216 Label used in Graphs & Map COUNCIL NAME/TRADE NAME 215 216 Northland Northland Regional Council 168,3 171,4 Auckland Auckland Council 1,569,9 1,614,5 Waikato Waikato Regional Council 439,1 449,2 Bay of Plenty Bay of Plenty Regional Council 287,1 293,5 Gisborne Gisborne District Council 47,4 47,9 Hawke's Bay Hawke's Bay Regional Council 16, 161,6 Taranaki Taranaki Regional Council 115,7 116,7 Manawatu- Horizons Regional Council 234,5 236,9 Wellington Greater Wellington Regional Council 496,9 54,9 Tasman Tasman District Council 49,5 5,3 Nelson Nelson City Council 49,9 5,6 Marlborough Marlborough District Council 45,3 45,5 West Coast West Coast Regional Council 32,7 32,5 Canterbury Environment Canterbury 586,4 599,9 Otago Otago Regional Council 215, 219,2 Southland Environment Southland 97,3 98, AUCKLAND WAIKATO TARANAKI NORTHLAND BAY OF PLENTY GISBORNE HAWKE'S BAY TASMAN MANAWATU-WANGANUI NELSON WELLINGTON MARLBOROUGH WEST COAST CANTERBURY OTAGO SOUTHLAND 6
Points acknowledged for Graphs 5 & 6 The MfE data is for two years only (see Horizons RC explanation in following slide). Where there are small populations, such as West Coast RC and Tasman DC, there are higher numbers of enforcement per capita. Population is only one relevant factor. There are a number of other relevant factors e.g. number and type of activities in each region. One example is dairy farming (discussed in following slides). Horizons Regional Council Explanation about use of enforcement mechanisms Over this period (214/215 & 215/216) we were dealing with a long and protracted prosecution which took a significant amount of staff time. Since July 217 we have laid charges relating to 4 additional prosecutions. This period (214/215 & 215/216) was characterised by a change in the compliance approach in relation to farm dairy effluent where we tried to engage and educate the industry. This focus has now changed, which has resulted in a change in statistics (see table, which relates to the farm dairy effluent programme). The statistics for this year to date also show a higher enforcement response. Enforcement Issued Farm Dairy Effluent 216/217 215/216 Formal Warnings 1 1 Infringement Fines 8 Abatement Notices - Cease 17 1 Abatement Notices Take Action 4 Ongoing Investigation/Prosecution Total Enforcement Documents Issued 3 2 7
Farm Dairy Effluent Context Total cow population in NZ in the 214/15 season was 5.2 million. Based on this number - more than 35 million litres of effluent per day was produced from the dairies alone during the milking season. This amount of effluent loading (loading = strength of effluent BOD5) is equivalent to the effluent loading produced by approximately 35 million people. (7, litres of effluent per 1 cows. 7 litres per cow per day.) Offences arising from the discharge of dairy effluent made up 48% of all prosecutions in the period between 1 July 28 and 3 September 212 (Source: A Study into the Use of Prosecutions under the Resource Management Act 1991, 1 July 28 3 September 212). Northland Regional Council - Farm Dairy Effluent Monitoring & Enforcement The Background: 9 dairy farms in Northland, 8% of total number of dairy farms in NZ. Average herd size in Northland is 3 cows. Number of dairy farms has been steadily decreasing number of cows has remained the same. NRC Monitoring Programme: Every farm visited at least once annually. Bulk of visits done by one specialist contractor, same contractor since 23. All visits between 1 Aug 1 Dec each year. All non-notified. One of 3 grades assigned by NRC. Significant non-compliance is followed up. 8
. continued Northland Regional Council - Farm Dairy Effluent Monitoring & Enforcement The graph shows compliance trends for the Northland Region. Over last 1 years significant noncompliance (SNC) rate ranged from 14% up to 29%. Consented farms always have lower SNC rate than non-consented farms. Most years the highest rate of SNC occurs in August or September. Main reason for SNC is inadequate management. Land application systems require more labour input and compliance is more dependent on good management. Number of Farms 1 9 8 7 6 5 4 3 2 1 Farm Dairy Effluent Compliance (all farms) 28/9 29/1 21/11 211/12 212/13 213/14 214/15 215/16 216/17 217/18 Year Significant noncompliance Non-compliance Full compliance. continued Northland Regional Council - Farm Dairy Effluent Monitoring & Enforcement Enforcement action most likely if: Significant adverse effects are identified; and/or There is on-going significant noncompliance for same or similar offence; and/or Action 213/14 214/15 215/16 216/17 217/18 Abatement Notice 97 19 69 17 217 Infringement Notice 17 83 49 124 161 There is non-compliance with a previously issued abatement notice; and/or The non-compliance is a result of poor management/gross negligence. Prosecution (year the prosecution was initiated) 2 9
Tips from my recent work TIP 1 (for Councils): Consider option of 274 parties for appeals against abatement notices & applications for enforcement orders Appropriate for example: When enforcement action has been taken in response to complaints about odour and/or dust. Earthworks that impact on neighbouring land. Process: Discuss in advance with lawyer for other party. Raise this at first teleconference or in a memorandum to the Court when proceedings are filed. 1
TIP 2 (for Councils): Issue more Abatement Notices & Infringement Notices (when appropriate) Quick Cheap Effective TIP 3: Abatement Notices & Infringement Notices issued to Contractors Contractors are concerned about tenders. Council aim is compliance. Council does not aim to impact opportunities for work. If contractor s reason for request for cancellation of abatement notice, appeal of abatement notice, or defence of infringement notice, is concern about impact on future work - an option to settle is - cancel notice if contractor provides undertaking to comply with requirement in abatement notice or take steps to avoid future non-compliance. 11
TIP 4 (for Councils): Other Agencies Local authorities should consider whether other agencies have responsibility/can assist in better outcome e.g. odour and dust nuisance to businesses Worksafe and Medical Officer of Health. Key is communication between agencies and information to complainants so complainants are not bounced around. References & Acknowledgements - MfE Data Tool http://www.mfe.govt.nz/rma/monitoring-and-reporting/national-monitoring-system-reporting-21415-and-21516/data-tool - Statistics New Zealand (branded as Stats NZ) Subnational population estimates http://nzdotstat.stats.govt.nz/wbos/index.aspx?datasetcode=tablecode751&_ga=2.14211641.2292617.1519786464-1849929744.1517892322 - Cow numbers from New Zealand Dairy Statistics 214-15 215 Livestock Improvement Corporation Limited and DairyNZ Limited http://www.lic.co.nz/user/file/dairy%2statistics%2214-15-web-6%2nov%215.pdf - A Study into the Use of Prosecutions under the Resource Management Act 1991, 1 July 28 3 September 212 http://www.mfe.govt.nz/publications/rma/study-useprosecutions-under-rma-1991-1-july-28-3-september-212 Thanks to: - Tess Dacre, Northland Regional Council for information about Northland Regional Council Farm Dairy Effluent Monitoring and Enforcement. - Greg Bevin, Horizons Regional Council for explanation about Horizons use of enforcement mechanisms. - Dr Marie Brown (author of Last Line of Defence, Compliance, monitoring and enforcement of New Zealand's environmental law, www.eds.org.nz ) for discussions about points to acknowledge for Graphs 5 and 6. - Alice Waters for preparing the graphs using MfE Data Tool spreadsheets and Statistics New Zealand population data. 12