Resource consents, compliance and complaints monitoring

Abstract

The Resource Management Act 1991 (RMA) requires councils to monitor resource consents, compliance, and complaints. Monitoring consents, compliance and complaints:

indicates performance in relation to a range of issues
highlights areas that require further action
provides feedback that may lead to changes to policies and plans
contributes to assessing long-term trends over time
helps councils make informed decisions.

There are close links between this type of monitoring and those for policy and plan effectiveness and state of the environment monitoring. Integrated monitoring informs decision-making by helping determine the need for further action, and by indicating where policies and actions can be improved.

This guidance note does not deal with chain of evidence and enforcement matters. This is addressed in the RMA Enforcement Manual.

Have an integrated approach

Integration is the key to successful monitoring.
Dedicate staff resources for monitoring within the consents team or integrate across the council.
Be pragmatic and use available skills and knowledge of staff to best effect.
Link consents and compliance monitoring and reporting with state of the environment and policy/plan effectiveness monitoring and reporting.
Specify linkages through a monitoring strategy.
Establish effective feedback loops so consents, compliance and complaints monitoring can provide useful information for other monitoring activities (such as for RMA plan effectiveness and Local Government Act 2002).
Consider linking RMA consents and compliance monitoring with other council functions that also require monitoring for example, under the Building Act 2004.
Document systems and procedures (such as who does what, when, how and why) because of staff turnover.
Link to Ministry for the Environment two-yearly reporting requirements (RMA Survey).

Have a clear purpose

Be clear on the purpose of resource consent, compliance, and complaint monitoring and reporting. Is it to:

check that consent holders are meeting the conditions of consent? (administrative/process monitoring)
check on predicted environmental effects of consented activities, including links to environmental results expected in policy statements and plans (environmental performance/outcomes monitoring)
provide information for state of the environment monitoring and reporting
assist in assessing the effectiveness of policy and plan provisions
assist in meeting reporting requirements for the Ministry for the Environment 's two-yearly RMA Survey and the ss35 and 35A information required to be provided to the Minister for the Environment under regulation.

A combination of all these purposes is the most desirable approach in a monitoring strategy.

Monitoring of resource consents involves checking compliance with consent decisions; the effectiveness of consent conditions; and monitoring the impact of activities on the environment. Complaints can also provide useful information on compliance or areas where policies and plans are not meeting the desired and anticipated environmental outcomes. For example, complaints about activities that are identified as permitted activities in the plan. State of the environment and complaints monitoring can provide useful information for monitoring the effects of permitted activities.

Writing consent conditions

Think in advance about how consent conditions will be monitored and enforced when they are being drafted. Ensure conditions relate to actual or potential adverse effects on the environment.
Check that conditions are written in clear and simple language that is easy to understand and monitor. Consider asking a non-planner to see if they can understand the condition.
Ensure that conditions are certain and unambiguous. Will others be able to interpret them in years to come? Would they stand up in the Environment Court if enforcement action were ever necessary?
Discuss possible conditions and monitoring requirements with the applicant (and submitters) as the consent is being processed.
Don 't reinvent the wheel. If effective consent conditions have already been developed by other councils, consider adapting them for your use while ensuring they are tailored to the specific application.
Read the guidance material on Resource consent conditions.

Who will carry out the monitoring?

Consider who has the appropriate skills to carry out monitoring of different consents. Are dedicated or specialist staff required (eg, for noise, odour, light and glare)?
If there are a large number of consents to monitor, a dedicated compliance monitoring officer or team might be appropriate.
Will other sections of the council be involved? Do you need to employ external expertise?
In some situations self-monitoring may occur but proceed with caution. This is where the consent holder conducts monitoring. It can save councils valuable resources but requires checks and audits and should not be viewed as a soft option.
Consider joint monitoring between consent holders, with other councils or agencies on certain types of activities.
For some simple types of consent monitoring it may be cost effective to employ students to check compliance.

Paying for monitoring

Think about whether the cost of monitoring the condition is reasonable given the anticipated level of adverse effects.
Specify who will pay for the monitoring. Will it be the total responsibility of the consent holder or will the council share the costs?
Have a council charging policy and ensure any monitoring charges are in line with it. Refer to the Setting charges for processing guidance note.
Charge consent holders for compliance monitoring as appropriate.
Consider if consent holders could be eligible for reduced costs or monitoring frequency if they consistently comply with consent conditions.
Consider using a bond as a way of paying for monitoring one-off consent conditions (eg, the completion of landscaping or site remediation). When the consent holder provides evidence that conditions have been met the bond can then be released.

Type and frequency of monitoring

Decide on the type and frequency of monitoring in relation to the potential environmental effects and the scale of the activity. The level of monitoring needed will depend upon effects and scale.
One-off monitoring might be all that is required for activities with minor effects or effects that are limited to the time of construction.
Regular inspections might be appropriate for conditions of an ongoing nature, for example the disposal of dairy effluent.
Consider tailor-made, site-specific monitoring programmes for large activities or those with the potential to generate significant adverse effects (eg, site visits, audits or checks of company complaints registers). This type of monitoring should be discussed with the applicant and submitters as an integral part of the consent decision-making process.
Consider performance-based monitoring to ensure environmental standards are met. This may be able to be undertaken by the applicant and, if compliance and environmental results are consistently good, then less frequent monitoring/site visits may be appropriate.
Consents database and GIS systems can help to plan and implement consent monitoring at the most appropriate time. For example, Grey District Council has found that linking consent information to GIS helps organise monitoring activities efficiently, as it makes it easy to plan monitoring by consent type or geographic area.

Good internal systems

Recording, reporting and review

Report the results of compliance monitoring. What information will be made available and to whom? Will an annual compliance monitoring report be published?
Consider how compliance monitoring and reporting will feed into other monitoring and reporting, particularly state of the environment and policy and plan effectiveness.
Decide on systems and protocols for dealing with non-compliance.
Provide formal and informal feedback to planners on how effective the policies, plan and consent conditions are.
Refer back to your purpose for compliance monitoring and how it integrates with other aspects of monitoring. Make sure good feedback procedures are in place and use them.

Work with others

Establish links with compliance monitoring people in adjoining councils, your regional council (for territorial local authorities), your territorial local authorities (for regional councils), and councils working on similar issues (eg, other metropolitan centres).
Join, establish and/or maintain an active monitoring forum in your area. Refer to monitoring forums.
If something works well for another council consider adapting it for your use (ie, use consent conditions of other councils if appropriate for your situation).

Compliance monitoring

Compliance monitoring includes checking:

the uptake of resource consents and identifying those that have lapsed
compliance with consent conditions, such as in relation to water quality, changes in land use, subdivisions and so on
permitted activities.

Compliance monitoring involves evaluating process performance, compliance with consent condition or plan provisions, and environmental performance assessment.
It enables early detection of any adverse effects.
Compliance monitoring ensures any non-compliance with consent conditions is detected and any appropriate action taken.

Links with enforcement

Link compliance monitoring with your Council's enforcement approach.
Establish a progressive enforcement policy, bearing in mind that the majority of cases may be resolved with a light-handed, informal approach but also be prepared for a more heavy-handed and legal approach if necessary.

See the Enforcement Manual for more guidance on enforcement matters.

Monitoring of complaints

Complaints relate to events and tell us about environmental problems or perceived problems and can be useful for management purposes. Monitoring complaints can also provide useful information at the corporate level - for functions right across council.
Complaints may relate to activities that have resource consent but they may also relate to permitted activities and may indicate situations where consents may be required in future to better address adverse effects created by permitted activities.
The majority of councils in New Zealand keep a register of complaints (as reported in the RMA Survey of Local Authorities, by the Ministry for the Environment).
Complaints monitoring can help fill gaps in knowledge and information about the quality of the environment and community attitudes.
Over time it may be possible to use complaints monitoring to help develop trend data and add value to state of the environment reporting. This relies on having an integrated approach to monitoring and reporting within councils and with other agencies.

Feedback and review cycles

Because consents are site specific they can provide useful information about the success of policies and plans.
To be most effective resource consent and compliance monitoring needs to close the policy loop and provide a feedback mechanism to planners on the effectiveness of policies and plan provisions. It should also feed information to those involved in state of the environment monitoring and reporting about the key emerging pressures on the environment and any possible cumulative effects.
The results of compliance monitoring should also be reported back to consent holders as a mechanism for influencing future behaviour. Compliance reports can be used by consent holders to measure their own performance against internal quality management systems; and results can even be reported to shareholders.

Best practice examples

The following examples illustrate best practice in those aspects of compliance monitoring as described in this guidance note.

Resource Consents, Compliance and Complaints Monitoring: Environment Southland Monitoring Report Cards
Published by Environment Southland - January 2010
Environment Southland summarises the results of their environmental reporting in to a series of report cards. These cards cover issues such as Air Quality, Land, Soils and Fish Monitoring. These report cards are available to view on their website www.es.govt.nz

Resource Consents, Compliance and Complaints Monitoring: Whangarei District Council, (2) May 2003 (PDF 76 KB)
Published June 2005
This is Whangarei District Council's Resource Consents Monitoring Report.

Resource Consents, Compliance and Complaints Monitoring: Whangarei District Council (PDF 32 KB)
Published by Whangarei District Council - May 2003
In order to fulfil their monitoring requirements, Whangarei District Council produces a combined Resource Consents and Complaints Monitoring Report annually in an integrated approach to monitoring and reporting.

Practical Examples for Monitoring and Reporting Training Workshops (PDF 37 KB)
Published by Auckland City Council - January 2010
This example shows how Auckland City Council developed a priority-based approach to resource consents and compliance monitoring to make the most effective use of resources available. To be read in conjunction with the Monitoring and Reporting One-Stop-Shop guidance notes on the Quality Planning website.

RMA provisions

Section 35(2)(d) requires every council to monitor resource consents that have effect in its region or district, as the case may be, and take appropriate action (having regard to the methods available to it under this RMA) where this is shown to be necessary.

Under section 35(2A) councils are required to prepare a report at least every five years on the results of their monitoring of the efficiency and effectiveness of their policies and plans (as required under s35(2)(b)).

Section 35(3) requires every council to keep reasonably available at its principal office, information which is relevant to the administration of policy statements and plans, the monitoring of resource consents, and current issues relating to the environment in the area, to enable the public:

to be better informed of the duties, functions, and powers of the council and
to participate more effectively under the RMA.

Section 35(5)(g) requires a number of records to be taken by councils in relation to resource consents:

(g) records of all applications for resource consents received by it;
(ga) records of all decisions under any of ss37A, 87E, 95 to 95F, 198C and 198H;
(gb) records of all resource consents granted within the local authority 's region or district; and
(gc) records of the transfer of any resource consent.

Section 35(5)(i) requires councils to keep a summary of all written complaints received by it during the preceding five years concerning alleged breaches of the RMA or a plan, and information on how it dealt with each such complaint.

Section 35(5)(j)(a) requires territorial authorities to keep information available on the location and area of all esplanade reserves, esplanade strips, and access strips in the district.

Section 35(5)(j)(b) requires regional councils to keep records of every customary rights order relating to its region.

Sections 223 and 224 relate to the approval and deposit of survey plans for subdivision and ensuring that resource consent conditions have been met (which requires monitoring). This relates to administrative processes under the RMA. To assess any environmental outcomes and effects, the link with state of the environment and policy and plan effectiveness monitoring is important.

The Local Government Act 2002

The Local Government Act 2002 (LGA) also requires monitoring. Under the LGA councils must prepare Long Term Council Community Plans (LTCCPs). LTCCPs must state how the council will monitor and report on the community 's progress towards achieving the community outcomes (including environmental outcomes), not less that once every three years.

Case law

There are a number of cases relating to monitoring of resource consents. These tend to be fairly technical and site specific in nature.

Environment Waikato vs Campbell (2003) (High Court)

Environment Waikato appealed an Environment Court decision to the High Court to determine whether or not councils can use s332 of the RMA to enter, search and take samples from private property where there are grounds to suspect, even before going on site, that a breach of the RMA has occurred.

The High Court has ruled that council officers can enter private property to check for compliance with the RMA, but not if they know there is a breach. To inspect a known breach of the RMA, council officers will first need to obtain a search warrant. Failure to obtain a warrant could result in charges against the property owner being thrown out in Court. If, at the time of a routine inspection, the council officer finds evidence of an offence, it can be collected and used in court during prosecution.

Hughes v Ilam Lifecare Ltd C137/07 - Section 314(1)(b) does not confer jurisdiction on the Court to alter or amend conditions of a resource consent.

Related guidance notes

The following guidance notes are related:

Relevant publications

RMA Survey of Local Authorities
Published by Ministry for the Environment
Every two years, the Ministry for the Environment carries out a survey of resource management processes in local authorities.

Infringement Notices: Are They Working?
Published by Ministry for the Environment - January 2005
The purpose of this study was to gather further information about how infringement notices are being used, the decision-making process that councils use when deciding to take enforcement action, and why a large number of hearings are being requested with regard to enforcement action.

Effective and Enforceable Consent Conditions
Published by Ministry for the Environment - June 2001
This is a guide to drafting resource consent conditions under the RMA. The guide discusses how a well-drafted resource consent condition should be effective and enforceable so it will be consistent with its statutory purpose of promoting the sustainable management of natural and physical resources. The guide contains an explanation of the principles relating to the validity and scope of conditions, a checklist of considerations, a discussion on putting the preceding principles into practice, and examples of relevant case law.

A Free Lunch or a Fair Deal? A Good Practice Guide for Charging for Resource Consent Processing (PDF 314 KB)
Published by Local Government New Zealand - March 2001
This report is intended to raise awareness of the key issues regarding the costs of resource consent processing, and also provide good practice advice on administrative charging for resource consents under the RMA. It is targeted to council managers and staff responsible for applying the administrative charge provisions set out in s36 of the RMA.

Compliance Monitoring and Emission Testing of Discharges to Air
Published by Ministry for the Environment - August 1998
This guide to Compliance Monitoring and Emission Testing of Discharges to Air will assist regional councils, local councils, industries and others who have responsibilities for air quality management under the RMA. The guide contains information and recommendations on determining compliance monitoring requirements, writing consent conditions and conducting emission testing.

Good Practice Guide for Assessing and Managing the Environmental Effects of Dust Emissions
Published by Ministry for the Environment - September 2001
This guide provides guidance on how to assess and reduce the environmental impacts of dust emissions.

Compliance Monitoring Procedures (PDF 3 MB)
Published by Marlborough District Council - January 1997
This report highlights the need to develop consistent compliance monitoring procedures to ensure mistakes are not repeated. It is evident that staff deal with enforcement procedures in different ways. The report then uses examples of compliance monitoring procedures such as piggery operations in Waikato and dairy effluent monitoring.

Current challenges in practice

Establishing feedback loops: Feedback loops (from the results of monitoring consents, compliance and complaints) and their relationship to plan effectiveness and state of the environment monitoring are often absent.
Internal integration and buy-in: It is important to have corporate and council buy-in to monitoring for it to be resourced adequately and used effectively for management purposes. Many practitioners have mentioned that lack of integration and support from peers, management and councillors has limited the ability of their monitoring efforts to contribute to decision-making.
Monitoring not seen as a priority: Most resources are devoted to processing consents within statutory time frames or enforcement actions. Monitoring of consents, compliance and complaints is not viewed as a priority.
Maintaining institutional memory: There is often a high turn-over rate for consents and compliance staff in councils. This makes maintaining institutional memory, especially for the monitoring of larger and ongoing consents, a challenge.
Charging for monitoring: Charging for monitoring and performance once charges have been levied have been challenging because of the public criticism of costs. Local authorities are in a monopoly position and in some cases are perceived to be inefficient in resource consent processing. Variations in costs have also been criticised. This impacts on the charges for monitoring resource consents and compliance.

This note was updated to reflect RMAA 2009 by Jerome Wyeth of Hill Young Cooper and MFE in January 2009.

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