Who wants to be the person to front up and tell Mr Bloggs he can’t divert a stream that’s undermining his bridge, build a high fence for which he has already bought the timber, or put in a fireplace to heat his cold house? Not me.
I’m not suited to an enforcement role — I avoid conflict situations wherever possible. But we all need the people who are prepared to deliver the unpalatable but important messages, and to take action against people who ignore environmental standards.
In ‘Last Line of Defence’ Marie Brown identifies a number of issues related to compliance monitoring and enforcement in New Zealand, including the work carried out by councils. Here are nine enforcement issues councils face, and some potential solutions.
1. Different powers that apply under different legislation (bylaws are one example I have come across, where the enforcement powers are hugely variable). Here’s a link to my earlier blog about how bylaw enforcement powers vary from strict to toothless.
2. Most environmental legislation does not provide councils with the ability to impose instant fines for lower-level offences.
3. There is often no feedback loop between compliance monitoring and consent processes. Marie Brown’s suggestions include:
– incentivising compliance by reducing the number of ongoing site visits required where compliance is occurring
– being able to cancel resource consents (or refuse further consent applications) where non-compliance is serious or ongoing.
4. More than 40 councils have one or fewer than one FTE staff member to carry out their compliance monitoring and enforcement responsibilities. Lack of time and resources for this work can result in lower quality investigations, and failed enforcement actions that waste time and ratepayer money. Marie Brown recommends:
– an accreditation system for compliance, monitoring and enforcement, similar to New Zealand’s building consent accreditation process
– access to a national or regional pool of expertise, for complex investigations.
5. Many councils don’t have a clear policy on how decisions about enforcement will be made, which can lead to an inconsistent approach. Marie Brown recommends that all local government agencies produce, and make publicly available, clear and up-to-date policies on environmental enforcement. She refers to Waikato Regional Council’s enforcement policy as a good example.
6. Councils are significant resource users on behalf of their communities, for example taking water for water supply services, and discharging stormwater into freshwater and coastal waters. They also carry out instream works for flood protection purposes. Where councils also have responsibility for monitoring and enforcing compliance of their own activities there is potential for perceived or actual conflicts of interest.
7. Limited information about enforcement actions is made available to the public, other than by local news agencies. Marie Brown suggests that “instances of public offending, particularly successful cases against offenders, can build valuable public support for the role of environmental enforcement agencies.”
8. IT infrastructure for tracking what enforcement action has been taken is essential. It is especially needed if the offender was only given a warning — to track whether compliance occurred in response to the warning. Small councils with limited resources can benefit from collaborating with other councils to commission the IT systems they need.
9. More independent auditing (for example by the Office of the Auditor-General) is needed, in the same way as occurs for other council functions such as the development of Long Term Plans. Marie Brown concludes with the following statement:
“What is abundantly clear is that CME [compliance, monitoring and enforcement] is the poor cousin of other stages of the policy and planning cycle, despite its vital importance to achieving the aspirations of law and policy. If law and policy is about behaviour change, then it must be recognised that the on-the-ground efforts of agencies to procure that behaviour change deserve greater focus and priority.”
