Best Practice Guidelines for Compliance, Monitoring and Enforcement under the Resource Management Act 1991 (the Guidelines) were launched by the Ministry for the Environment (MfE) in July 2018. The introductory message from Minister for the Environment Hon. David Parker says that the purpose of the Guidelines is to clarify what best practice looks like by providing guidance and support for front-line staff through standard tools and templates.

The Guidelines have been developed with support from a panel which includes Council staff from throughout New Zealand. The Guidelines are comprehensive and range from chapters outlining compliance, monitoring and enforcement (CME) under the RMA, along with the various enforcement tools, through to practical advice for Council staff on approaches to site inspections and incident investigations, including the power of entry, the use of field kits and notebooks, evidence collection, interviewing and statements.

The Guidelines will undoubtedly be a valuable tool for those staff dealing with enforcement matters on a daily basis, particularly for those Councils that have not developed detailed enforcement manuals. However, the Guidelines are equally interesting for lawyers undertaking criminal defence work in the RMA context, as the chapter on enforcement decisions steps through the ‘robust processes’ which Councils should have in place to guide the decision making process when exercising discretion about what enforcement response to adopt.

Some Councils, such as the Waikato Regional Council, the Taranaki Regional Council, the Tasman District Council and Environment Canterbury, have enforcement policies which are publicly available on their websites. Where Councils have made their enforcement policies publicly available, this allows the public to better understand how the Council is likely to respond to non-compliances and know what to expect. (The Guidelines note that examples of ‘good enforcement policies’ include those from Tasman District Council and the Waikato Regional Council). However, not all Councils publish their enforcement policies.

The Guidelines acknowledge that decision making processes on enforcement actions vary between Councils and go on to set out process and policies that are recognised as good practice. Key aspects of this include the following:

  • Where the breach is significant, and an infringement notice, enforcement order or prosecution is contemplated, the decision should be referred to an ‘enforcement decision group’, if the Council has one, or a group of experienced staff to determine the appropriate response.

  • Some Councils operate an open enforcement decision group, which can be attended by interested staff members, but if this is the case, then the final decision should sit with the core members of the group.

  • Some Councils have an additional (or alternative step) where, if prosecution is contemplated, it is referred to a prosecution group after being considered by the enforcement decision group. This will have similar membership but may also include a lawyer.

  • Prosecutions involve particular considerations against the Solicitor-General’s Prosecutions Guidelines as to whether prosecution is in the public interest, and legal considerations about the sufficiency of evidence and availability of defences. A decision to prosecute should therefore be contingent upon independent legal review, to ensure the public interest and evidential sufficiency tests are met. If the legal opinion suggests both of these tests are met, then the Council has the final decision as to what charges are filed, and against which defendant.

  • Decisions about whether to take enforcement action in any particular case should not be made by councillors, due to the risk or perception of decisions favouring certain groups / individuals.

  • It is good practice for final enforcement decisions to be delegated from the Chief Executive to the regulatory manager or other suitable decision maker in the Council. This is because Chief Executives may be perceived as being subject to administrative or political pressures to make a particular decision since they are appointed by elected representatives. If Councils have a policy of the Chief Executive approving prosecutions, then this is acceptable provided appropriate measures are in place to ensure a robust and transparent decision making process.

The Guidelines will assist Councils throughout New Zealand to consider whether the processes that they have in place for deciding on enforcement action represent good practice.

The enforcement policies, which some Councils have published on their websites, vary considerably in terms of how much detail they articulate about the process used to determine whether and if so what kind of enforcement action a council will take, so there may also be an increase in the level of detail with which this is communicated. In the absence of that, the Guidelines allow potential recipients of enforcement action to understand what sort of process should have been undertaken in determining whether and what enforcement action was appropriate.

Article written by Vanessa Hamm for LawTalk (September 2018 Issue)