Thursday, 12 December 2019

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PhD study finds that as many as a third of resource consent holders do not comply with consent conditions

PhD study finds that as many as a third of resource consent holders do not comply with consent conditions

When the Informer spoke to Dr Marie Brown about the findings of her PhD study, and her role in the Resource Management Law Association (RMLA) Roadshow currently touring New Zealand, she said she felt like a very little fish in a big pond. Her study, titled Ecological Compensation -
an evaluation of regulatory compliance in New Zealand, has opened up areas of inquiry into how to better manage ecological risk and brought the problem of non-compliance with resource consent conditions into the open.

For the purposes of Dr Brown’s doctoral research, undertaken at the University of Waikato, ecological compensation was defined as, "Positive conservation action required by resource consent and intended to compensate for residual adverse effects of development and resource use." In her study, and what is the first systematic analysis of regulatory compliance with mitigation requirements under the Resource Management Act (RMA) in New Zealand, she found that as many as one third of resource consent holders do not comply with their consent conditions.

After presenting her findings to the Judges and Commissioners Conference for the Environment Court last year, Dr Brown was invited by the principal judge, Laurie Newhook, to tour with this year’s RMLA Roadshow, "Conditions of Consent." In ten cities over July and August, the RMLA Roadshow focuses on up-skilling lawyers, planners, general council and compliance staff, consultants, NGO’s, interested members of the public and others on topical issues relating to environmental law.

Dr Brown’s research investigated compliance with 245 conditions related to ecological compensation across 81 case studies across New Zealand under the Resource Management Act 1991. All cases studied related to one or a bundle of consents issued by a district or regional council. Activity, applicant and condition types were compared to investigate relative compliance. Her results show that present tools and practice in New Zealand are not adequately securing the necessary benefits from ecological compensation, with 35.2 percent of requirements not being achieved.

With a background in RMA compliance, Dr Brown, now Senior Policy Analyst for the Environmental Defence Society, entered into the study with a desire to demonstrate the state of play of non-compliance, not to single out those industries where performance was low. "I didn’t want that to be the focus because it nullifies the more constructive message that compliance is predictable and we can work at the beginning of a process to limit ‘disasters’ later. Putting numbers to a situation makes them definitive, objective, citable. That’s the beauty of empirical data. Now we can say, this study shows a project is more likely to comply when these factors are included. This helps agencies dealing with risk-management and that is what I like to think is a key outcome of the study," she said.

Where compensatory actions were required before or concurrent with the consented activity, and where compensation requirements were discussed early in the process, compliance was observed to be significantly higher. The presence of an RMA bond on a condition also had a positive correlation with compliance, as did when compensation is proposed and included in the consent by the applicant and where a detailed plan is required prior to granting the consent.

Compliance varied with consent type - most compliant was energy generation with 100 per cent compliance, while consents related to agriculture exhibited the lowest overall level of compliance, with less than five per cent. Public organisations had a greater likelihood of attaining compliance, followed by private companies, then private individuals.

Throughout her doctorate, Dr Brown observed that poorly worded conditions were a major barrier to achieving outcomes. "District and Regional Plan provisions are often very weak, so there is a limit as to what agencies can control in terms of adverse effects." Without a high degree of surety, councils are risk-adverse around prosecution and this further constrains the likelihood of a good outcome. Improving fundamentals like condition wording is a straightforward means of improving outcomes.

According to Dr Brown, the RMA itself is fairly solid. The main barriers to achieving good outcomes, she said, lie in the implementation gap. "That’s things around under-resourcing of compliance and monitoring by councils and central government, lack of priority afforded to it by consent holders and political and managerial interference in processes surrounding enforcement."

Dr Brown said she had excellent engagement from land-owners and councils from all regions of New Zealand, with the majority readily acknowledging the problem of non-compliance. "The important thing to me was that the study - after careful analysis - demonstrated that this long-held assumption that councils could assume compliance would be achieved was just fatally flawed. Calling this into question opens up an important conversation as to what’s going wrong and how we can fix it."

The results of Dr Brown’s research show there is a clear need to understand the complexities of non-compliance as they apply to trade-offs that justify development at the expense of ecological values. "It may take thirty or forty years until we get it right but I’m quite confident that we can."

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