High Court provides guidance on local authorities' duties to gather information, monitor, and keep records under section 35 of the RMA

Key points:

• The Court has reaffirmed local authorities' discretion on how statutory duties regarding monitoring of the environment is performed, but showed a willingness to intervene where those duties are not performed.
• Local authorities cannot use funding constraints or implementation of national direction as a reason for not complying with monitoring duties under the RMA.
• Actions taken by local authorities must be linked to monitoring it has undertaken to fulfil the obligation to monitor the environment (section 35(2)(a)).
• There is a duty to monitor efficiency and effectiveness of policies, rules and methods in a proposed plan insofar as the provisions have been deemed operative in law prior to local authority approval.
• Obligations under section 32 (requirements for preparing and publishing evaluation reports) are separate from section 35(2A) duties (make available the result of monitoring of efficiency and effectiveness of plans)

 

Introduction

The High Court recently delivered its decision on an application for judicial review by the Environmental Law Initiative (ELI) against Southland Regional Council's (Council) approach to its obligations to monitor, report and act under the Resource Management Act 1991 (RMA) in respect of wetlands. ELI alleged that Council had failed to comply with its obligations under section 35 of the RMA, which states:

(2) Every local authority shall monitor—

(a) the state of the whole or any part of the environment of its region or district—

(i) to the extent that is appropriate to enable the local authority to effectively carry out its functions under this Act; and
(ii) in addition, by reference to any indicators or other matters prescribed by regulations made under this Act, and in accordance with the regulations; and

(b) the efficiency and effectiveness of policies, rules, or other methods in its policy statement or its plan; and

…

and take appropriate action (having regard to the methods available to it under this Act) where this is shown to be necessary.

…

(2A) Every local authority must, at intervals of not more than 5 years, compile and make available to the public a review of the results of its monitoring under subsection (2)(b).

 

Duty to monitor the environment and take appropriate action (s 35(2)(a))

Council had engaged an expert up to 2018 to map Southland's wetlands. During that time, the expert produced three reports, which established (among other things that) 7% of Southland's wetlands were lost between 2007 and 2015, and formal protection of wetlands on non-public conservation land was low. He also made a number of recommendations to Council 'to provide for more robust management and ongoing monitoring of wetlands in the Southland region'.

Additionally, Council had (among other things):

• identified wetland systems and undertook site visits to establish a baseline;
• produced a Freshwater State of the Environment report in 2010 (although it contained no monitoring of the extent or ecological health of wetlands);
• undertook a survey project to identify priority wetlands to help landowners protect and/or restore native biodiversity; and
• established various programme to provide information to inform Council's implementation of the NPS-FM (2014), consenting processes, and the education and advice programmes.

ELI produced their own report, which demonstrated that between 1996 and 2018 almost 5,400 hectares of freshwater wetland was lost from New Zealand. The greatest area of loss was in Southland from 2008 to 2012, which lost around 185 hectares of wetland per year for that period. The report concluded that the lack of monitoring and enforcement had proven to be the weak link in the regulatory chain of wetland protection.

The Court found that the Council had complied with its obligations under s 35(2)(a) prior to 2018. However, post 2018, the Court found that:

…while the steps taken by the Council are laudable, they do not amount to state of the environment monitoring or action arising from it. While funding restraints are acknowledged, post-2018 the mapping work done by Mr Ewans provided a baseline for further monitoring which could have been advanced but was not. Rather, it seems that the Council has been diverted by the promulgation of the proposed plan and the Essential Freshwater package introduced by the Government in 2020. While this is, to a degree, understandable, the Council cannot derogate from the duties imposed on it by Parliament in s 35(2)(a).

The Court was not persuaded the actions taken by Council factually amounted to 'monitoring', stating that 'it is hard to see how the ongoing health of the wetlands mapped by [the expert] could continue to be monitored, in light of his recommendations, without further mapping being undertaken'. Such mapping could be done incrementally over time given resource constraints, although the Court pointed out that mapping is not necessarily equivalent to monitoring. However, for wetlands 'mapping is a prerequisite to monitoring, and monitoring is necessary to ensure effectiveness in relation to the Council's functions in respect of wetlands'.

The Court went on to consider the action Council had taken, noting that 'as monitoring has not occurred … it follows that the obligation to take appropriate action, where shown to be necessary, is not able to be independently assessed'. Council stated that it had:

• a compliance team comprising of 10 full time employees responsible for monitoring the entire Southland region;
• monitored dairy farms and associated activities, such as intensive winter grazing, and industrial compliance has been a significant priority in recent years;
• a Monitoring Policy which relied on community reports or notifications about wetland drainage or water diversion;
• undertaken compliance interventions (letters, formal warnings, abatement notices) for wetland related issues.

The Court described this compliance action as 'minimal' and that 'monitoring undertaken on the ground cannot be described as enabling the Council to effectively carry out its functions under the Act in relation to wetlands'. Community education, engagement initiatives and strengthening of Council's scientific capability was 'noteworthy and laudable', but it did not fulfil Council's statutory obligations. The Court concluded that:

While it is true the Council has a wide discretion in how it performs its statutory duties, they must still be performed. When the Council does not perform its statutory duties, this Court is required to step in.

 

Duty to monitor the efficiency and effectiveness of proposed plans (s 35(2)(b))

The key issue before the Court was what constitutes a 'plan' for the purposes of section 35(2)(b) of the RMA. Council had a proposed Water and Land Plan notified in 2016 that was not yet fully operative. ELI argued that the proposed plan gave rise to section 35(2)(b) obligations. Council argued against this submission.

After reviewing the RMA, including various amendments, the Court concluded:

…reference to “its plan” in s 35(2)(b) is not limited to the operative plan approved under sch 1 but includes all provisions, including rules, that are declared to be operative as a matter of law prior to the final approval of a plan under sch 1.

It is noteworthy that the Court invoked the 'unless the context requires another meaning' caveat in the interpretation section of the RMA and applied a definition of 'plan' that is wider than that prescribed.

It followed the Council had failed in its duty to monitor the efficiency and effectiveness of the operative rules in its proposed Water and Land Plan. Additionally, Council had made 'no real attempt' to make available the results of its monitoring of efficiency and effectiveness of its plans and could not rely on a section 32 analysis.