3. Resource Management Act Findings

3.1   Resource Consents

3.1.1 Consenting Summary

ECan scored 29% compliance with statutory timeframes for processing resource consents in the 2007/8 MFE - RMA Survey of Local Authorities.  ECan has acknowledged that this is unsatisfactory and provided a full report to the Minister for the Environment in June 2009 on its performance and what it intended to do and had done to improve this situation.  It has now put in place process and system improvements to address this as well as the overall management of the resource consent process. 

There are some valid reasons why the timeframe compliance was so low.  However there were also systems and process failures, a lack of a clear understanding of the complexity of the (water) consent applications they were dealing with, the lack of an operative planning framework, as well as ‘attitudinal’ issues.  These are set out below. 

Having reviewed the consenting data-base system, discussed the matter with ECan officers (including the CEO, Director, Manager, Investigating Officers as well as a number of applicants), the Review Group believe that real change has occurred.  There is a much greater emphasis on timeframe management, and better process delivery throughout the application/consenting process. 

Notwithstanding the above, there remains an attitude that prevails throughout the organisation that “we are not clock watchers”, but more interested in outcomes rather than outputs.  While this is laudable in terms of seeking good outcomes, the RMA does have statutory timeframes that need to be managed alongside quality outcomes.   Tools are available under the RMA to address timeframe issues (e.g. sections 37, 88 and 92) and there appears to have been a reluctance to use these.

Overall it is the Review Groups conclusion that ECan is addressing timeframe management.  This is through putting in place improved processes and systems to manage the consent process, excellent guidance to applicant (various pamphlets, information booklets and the web site), utilising the tools in the RMA⁴ to ensure quality applications are lodged, and where appropriate applying section 37 time waivers.  It is considered that if ECan continues with this approach its survey result in the next MFE survey will be significantly improved.  

It is also clear that much of the poor performance in meeting statutory timeframes is historic; resulting from a significant backlog of applications (mostly water takes – from ground and surface water).  ECan has now processed a significant number of these applications and has either issued decisions or awaiting decisions from the Hearings Panel (mostly External Commissioners).  It is also now able to address the backlog of applications due to the considerable slow down in receiving applications over the last 18 months, reflecting the economic downturn.  However it does need to be noted that some of the application backlog has been ‘on hold’ for some years, and as reported by some applicants there has been little or no contact from ECan.  This has been very frustrating to applicants.  

While timeframe management is being addressed, there are a number of other issues regarding: needing to better understand the RMA and its purpose, the quality processing of applications (addressing the RMA in its wider ‘environmental’ context) as well as leadership and ‘culture’ issues that need to be addressed.  These include:

1. The organisation (resource consenting) is science led rather than science informed – and this has implications in how responses to applications (i.e. the s.42A reports) are prepared and officers attitude prior to, at and after the hearings. 
2. Processing resource consent applications is viewed more as a ‘technical’ process as opposed to a process of identifying all of the effects including, social, cultural, economic and environmental and weighing them appropriately.  This is essentially due to the consenting section having almost exclusively ‘technically’ qualified staff as opposed to staff with planning/resource management qualifications/experience and a view that the consent process is mainly about the adverse natural environmental effects.
3. There is insufficient consideration given to the fact that the purpose of the RMA is to weigh environmental⁵, social, cultural and economic matters.  ECan’s focus is mostly on ‘natural’ environmental matters.
4. There is a ‘we know best’ attitude amongst some senior investigating officers/team leaders and managers in the consenting section. 
5. There is significant disconnect /silo approach to regulatory consent planning and planning/policy⁶ development.   
6. A lack of case management of the more complex and/or significant applications/hearings.
7. A lack of active management of the Independent Hearings Commissioners process, particularly regarding timeframe management.    

3.1.2 Historical Issues - Reasons for Slow Processing of Consents

Due to the numbers of applications received⁷ and the nature of these applications, (most of which were water-related consents) ECan was not able to process the applications within the statutory time limits.  Nor did it seek in most cases to extend those time frames provided for under s.37 of the RMA (which can more than double timeframes with the applicant’s agreement).

According to ECan the increase in volume was driven by a number of factors including:

• A thriving economy leading to massive rural development based on irrigation and increases in urban and rural residential development.
• The notification of the Natural Resources Regional Plan in 2004 that set, amongst other things, “sustainable take limits” from ground and surface water sources.
• Water resources reaching sustainability limits in some places – and the ‘first in first served’ approach set out in the RMA⁸.

Due to the above there was a significant increase in both the number and complexity of applications.  A number of consent applicants were seeking significant resource use / takes, many from the same source.  The science and planning issues are complex, and the Council had not anticipated the ‘gold rush effect’ that occurred subsequent to notification of the NRRP. We believe ECan should have been able to better anticipate this given land use changes and the associated demand for water that had been occurring for some time.

To appropriately assess these resource consent applications required a strong scientific understanding of the water resource⁹, and also required senior and experienced staff/consultants to process them which at that time were difficult to find¹⁰.  ECan therefore decided to ‘bundle’ multiple applications and assess them simultaneously to enable an integrated and more efficient assessment.  

It took time, up to 12 months in some cases, to ‘negotiate’ with applicants, arrange the applications into ‘bundles’ to enable them to be assessed and reported on in a more integrated way (as opposed to assessing hundreds of individual applications) and to address cumulative effects.  Due to this, the section 42A report(s) to the Commissioners took significant time to prepare and the hearings also took considerable amounts of time.  The Review Group spoke with applicants who have had consent applications lodged with ECan for over five years, and are still awaiting decisions from Commissioners.

Given this situation, it is unsurprising that timeframes under the RMA have not been met. It is apparent that ECan did not avail itself of the opportunity to extend the timeframes enabled by the RMA (pursuant to section 37A (2) where time can be extended by more than the maximum of doubling timeframes, if the applicant agrees).  It is understood from a number of applicants that they would have agreed to an extension of time under section 37, but would have sought clear direction about when a decision would be released.  Applicant’s pointed out that often significant financial decisions needed to be made, and having certainty in terms of the consenting process (mainly timeliness) would have been very helpful. 

One of the other matters that ECan has acknowledged is that it accepted incomplete and/or poor quality applications (section 88).  Rather then rejecting these, efforts were made to seek improvements to applications without formally seeking additional information via section 92 of the RMA.  Whilst laudable in attempting to work with applicants, ECan should not have accepted the applications in the first instance or formally sought additional information (section 92) so as to be in a better position to process the applications.

It also appears that the ECan consent application process often placed unnecessary costs on the applicant, particularly ‘smaller operators’ and there is no satisfactory accountability process for it. External consultants were frequently used by ECan to assess applications¹¹.  As consultants (and internal staff) charge on an hourly basis there appeared, to some applicants, an incentive to ‘extend’ the process as far as possible. 

In short, due to a lack of staff resources and lack of relevant expertise, the sheer number and complexity of the applications, accepting poor quality applications, and not having appropriate systems and processes in place to manage its consent processing function - it was beyond the capacity and capability of ECan to process and determine the applications within the prescribed timeframes. 

3.1.3 Staffing and Use of Resources

Leadership/Direction

There is a lack of overall resource management content leadership within the Consenting Section.  Senior management are not RMA experts, and have backgrounds from outside the sector.  Senior management are not able to provide leadership and direction on the RMA and the consenting functions – other than process components.  This understanding of the RMA has been left to the third tier managers and team leaders, some of whom have been in ECan for a long time and “do it how they have always done it” (according to some internal staff and external people interviewed). 

This issue of leadership of the consenting function is significant, and has had implications in terms of timeframe management as well as the quality of the consenting process. It was also reported from within the council and from external stakeholders/consent applicants, that there is no ‘go to’ person with respect to water management and major resource consent processing.  This was contrasted with other issues such as air and coastal matters.  It is evident to the Review Group that no one is providing the required leadership and direction in this area.

As has been raised earlier, the composition of the consenting section is largely absent of people qualified and experienced in planning and/or resource management. It is the Review Group’s view that this has in part led to the issues raised above (and some of that that follow).  While the consenting section and the plan/policy development section have been placed under one Directorate¹², something supported by the Review Group, this of itself has not appeared to improve the consenting function.  In discussions with management it was the officers in the consenting section that were “feeding their on the ground” experiences into the policy development; it did not appear to work in reverse. 

Internal finance and resource management processes (user pays) influences this, with several staff commenting that there is a disincentive to do non-chargeable work (unless staff time is specifically budgeted for in advance they are unable to work for other parts of the business).  This means that there is no scope for contingency to allow staff to get involved in unplanned activities.

A recent internal restructure separated technical issues from management functions, and the Consents Team now has a staff-focused (Consenting) Manager and Consents QA. The Review Group considers it positive that there is a QA-specific function within consents. 

Staffing

ECan has recognised the need to increase the staffing numbers within the Consenting Section.  Staff dealing with resource consents increased from 35 to 57 between 2003 and 2009¹³.  The additional staff are processing current applications as well as reducing the back-log.  While this is a positive move, there are issues with the skill set within the Consenting Section. 

The Consenting Section consists predominantly of technically qualified staff as opposed to those with planning (in particular) and resource management qualifications and experience.  This has created a very science/technical and physical environmental effects focus to processing consent applications.  This focus is too narrow and the RMA requires a wider evaluation and a weighing of all aspects to determine if the resource use application is sustainable.

It also appears that due to the skill sets in the Section and a general lack of experience at the officer level, there has been an ‘audit / investigation’ approach to the applications (as expressed in the officers section 42A reports) rather than an assessment and evaluation of that application in terms of the objectives and policies of the relevant planning and policy documents and the provisions of the RMA – particularly Part 2.  The external perspective to this audit approach is that staff often seek reasons to recommend rejecting an application (through auditing it) rather than working with applicants to clarify points within applications and undertaking an assessment in terms of the RMA and the policy/plan documents.

In discussions with a number of the staff in the section, there was a definite attitude (a misunderstanding we believe) that planners should not be involved in processing consent applications.  This was because “it is a technical process and planners develop plans and policy”.  This is wrong and not consistent with accepted and desirable practice in other councils. 

Evaluation of resource consent applications, particularly for more complex applications, would be better undertaken by planning/resource management qualified officers, with technical input from technically/scientifically trained staff. 

‘Seeking perfection’ is also a problem from the perspective of external stakeholders, where in their opinion staff have become overly complex at times, especially when regarding collection / analysis of scientific information.  Comments were received from external applicants and consultants that “ECan has too much focus on gettingperfect science”, and that this has driven costs and timeframes up dramatically in some cases.  However we recognise there is a need for adequate information to make effective decisions but that this needs to be balanced with the fact that the ‘science’ is incomplete.

3.1.4 Use of the RMA

Relationship of Timeframes to Quality of Decisions, and use of External Commissioners

ECan generally uses Independent Hearing Commissioners for significant resource consent hearings (and policy / plan changes).  This is strongly supported by the Review Group, although a number of issues have emerged with respect to timeframe management.

A number of the hearings, including the major water takes (e.g. Central Plains, Ashburton River - Valetta Groundwater Zone, and the Rakaia-Selwyn ‘renewals’) have taken many weeks (or months in some cases) of hearings and considerable time to draft the decisions.  It is acknowledged that the major hearings have included multiple applicants, complex science and planning provisions within an unsettled planning/policy framework (e.g. the NRRP is only part way through its First Schedule process).

However, in discussions with ECan staff and applicants/submitters there is considerable frustration at the length of time taken for a decision(s) to be issued.  There appears to be a practice of Commissioners not closing the hearing but adjourning it.  This has been for a number of reasons, including the possibility of having to seek further information once the Commissioners had reviewed the extensive evidence, through to not wanting to close the hearing so that the ‘clock is not started’ with respect to the time to release a decision.  This issue has largely been resolved through the 2009 Amendment to the Act¹⁴ requiring hearings to be concluded within 10 days after the right of reply.

External applicants spoken with are critical of the hearing process.  For example, “The present formal and legalistic process is very drawn out.  Because it is difficult to get commissioners with sufficient expertise, often the same commissioners are sitting on multiple hearings. The hearings follow each other, giving insufficient time to make and present decisions before proceeding with the next hearing.”  This is an issue that needs to be addressed by ECan.

Other issues have been raised regarding perceived conflicts of interest from within ECan.  The following quote from an external applicant spoken with is consistent with the commonly held view among external parties that ECan staff display an intransigent attitude and are unwilling to accept decisions that are not consistent with their recommendations and perspectives.  “ECan staff who are involved in coordination of evidence at the hearing, are often the same people who then are required to complete consent conditions (if the consents are granted).  Having lost the case – if they believed there was insufficient water to grant – presently these same people are writing the conditions and make them ‘unmanageable’ to protect their earlier view.”

With regard to planning, in particular the NRRP, the Review Group has heard strong and consistent criticism of the timeframes taken to both develop the NRRP and its movement through the First Schedule process, and the quality and complexity of officers’ reports.  We address the NRRP in more detail later in this Report.

Section 88 (guidance for applicants)

ECan officers acknowledge that in the past they have accepted applications that were deficient and did not meet the requirements of section 88 of the RMA (as it was prior to the 2009 RMA amendments).  It was reported that this was done due to a ‘customer focus’; rather then rejecting the application it was accepted and additional information sought (either formally via section 92, or as more often (as reported to the Review Groups) informally – a phone call or email).  This action is another reason why ECan has performed poorly in terms of timeframe management.

ECan officers also report that many applications, especially for water takes, were poorly drafted and had incomplete information due to the ‘first in first served’ approach in the RMA.  The ‘gold rush’ effect also meant that consultants developing applications (and accompanying AEE’s) for clients did not have the time to prepare quality applications.  They were aware that ECan would likely accept these applications and additional information sought later – but the applications were then ‘in the system’.

ECan are now taking a different approach.  In recognising the situation above, and in part due to the 2009 RMA amendments , ECan officers will now only accept applications that are fully completed, and will reject applications that are not (i.e. return them to the applicant).  While this was possible under the RMA, the 2009 amendment (section 88 (3)) has made it explicit that Councils can return it to the applicant as an incomplete application.

In an effort to ensure better quality applications are received, ECan has undertaken a number of initiatives.  These include that discussed below and those set out in the Systems and Processes section.  ECan has produced (and is continuing to produce and update) information to consent applicants. Examples include:

• The Calm Before the Storm – application guidebook for stormwater discharges.
• When the Cows come home – applying for your dairy shed effluent resource consent.
• Flushed with Success – a guide to keeping your onsite wastewater system authorised.

Section 92 (requesting further information)

Section 92 enables further information to be obtained from applicants subsequent to an application being received.  There is often criticism from applicants that “council officers seek too much information” when what is really required should be limited to sufficient information to consider and decide on an application.  This issue is not unique to ECan.  What is the appropriate amount of information is an ongoing issue.

As already addressed ECan acknowledges that it has accepted in-complete applications.  This meant that seeking additional information was inevitable.  Sometimes formal section 92 information requests were made and other times there were ‘informal’ requests.

While it is accepted that section 92 requests are legitimate, some applicants considered that ECan officers used this as a technique to stall the processing of applicants.  ECan officers spoken do not accept this, stating that the additional information was necessary to fully understand the application.  The Review Groups were not in a position to consider this issue in any significant detail.  However this issue is likely to be resolved by the 2009 amendments to the RMA.

The relevant amendments to the Act enable councils to request further information only once prior to the decision to notify. In response to this, and the acknowledged poor timeframe performance ECan has introduced a number of measures to ensure applications are complete when received by the council.  This should essentially eliminate the need for section 92 further information requests.  Other initiatives to reinforce this are set out below.

3.1.5 Systems and Processes

Significant improvements have been made in terms of managing timeframes and consenting processes.  In terms of the year to date (2009/10) ECan are reporting in excess of 80%  compliance with statutory timeframes (over the last 12 months).   This has been achieved through much more active management of the consenting process, improved systems, and a recognition that (for all of the reasons set out earlier) performance has been poor. 

Both the Director and the Consenting Manager have introduced system and process improvements to address consent processing and timeframe management.  Spire Consulting Ltd has been commissioned (most recently - October 2009) to advise on “Continuing the Consent Application Processing Performance Improvement”.   This work is to specifically assist ECan to continue to improve the efficiency, timeliness and quality of the consent application processing, so as to achieve compliance with the provisions of the 2009 RMA Amendment (Simplifying and Streamlining) Act.  

ECan’s objectives for the Continuing Process Improvement Project include: 

• Improve the adherence to RMA timelines to in excess of 95% within 12 months.
• Develop a management reporting ‘suite’ to detect performance trends early.
• Identify the processing, training and information support required to assist ECan staff to achieve the first objective (above).
• Increase staff confidence to seek and implement improvements.

ECan has also introduced a better consents input and tracking system.  Staff have been trained to operate it and specific staff appointed to track consent application progress.  ‘Flags’ identifying when particular actions need to occur and alerts when time frames are close to being exceeded are a key feature of this system.  This appears to be working, and each step of the process is covered, from receiving an application, checking if complete and has sufficient information, and then either accepting it, seeking additional information or returning it, determining notification/non notification, allocating it to an officer, processing it, and issuing either a decision (under delegated authority) or scheduling a hearing.

Daily consent processing meeting

A daily meeting with managers, senior consenting officers and processing staff is held to discuss:

• New applications – whether sufficient information been provided and whether the application should be accepted, returned or further information sought.
• Issues of notification /non-notification.
• Scheduling of hearings.
• Other issues arising with respect to applications.

The Review Group supports this move as evidence of a more proactive and coordinated approach to consents management.

Pre-lodgement Meetings and Cost Recovery 

To ensure that applications are adequate and complete when lodged, ECan has instituted some pre -lodgement meetings with major applicants.  The purpose is to fully discuss the application, what information is required, ensuring adequate information is provided and provide an overview of the consenting process.  This is an excellent initiative and consistent with accepted practice in other councils.

One of the issues raised by ECan is whether it can cost recover the time spent in these pre-lodgement meetings. It was reported that considerable time may be required, particularly for larger and more complex applications where input is required from multiple officers.  ECan has a 100% cost recovery policy post-lodgement and the concern was that costs can only be recovered on receipt of an application. 

In the Review Groups experience, typically a council will hold an initial meeting free of charge, and following this, any additional officer time is charged for by the council.  Applicants are able to decline interaction (and avoid cost) but rarely do, as they receive valuable advice that leads to a more efficient and effective post-lodgement process.  This is consistent with the cost recovery policy of the EPA (although we note that the 2009 RMA amendments specifically provide for this).  The major consent applicants spoken to all supported pre- lodgement engagement and indicated that they would be prepared to pay for these meetings on the basis that it would likely result in a more efficient and cost effective consent process.

The Need for Case Management of Major Consent Applications

There has been criticism that ECan doesn’t manage major consent applications effectively.  This partly stems from a historical lack of engagement with applicants pre-lodgement, but there have also been criticisms of the quality of project management within ECan for large applications (e.g. slow moving, communication issues regarding timeframes and costs to applicants, poor stakeholder management).

Components of case management for significant and /or complex consent applications include:

• Appoint an applicant project manager/coordinator – and that this person be the ‘point of contact’.
• Form the team with appropriate skills (including economic, environmental, social and cultural expertise where appropriate).
• Agree the plan of attack for dealing with the consents.
• Significant engagement with applicants and stakeholders, ensuring clear expectation setting from all parties.
• Mobilise the application as a project within its own right once it is received (including all appropriate project management methodologies).
• Ongoing management of the project throughout the lifecycle, from any further information requests, the contracting in of specialists skills if not contained (or available) in-house, preparation of the section 42A report, scheduling the hearing, appointing the Commissioners, liaison with the relevant section in the council (hearings/admin teams, accounting, printing, distribution etc), liaison with the applicant – and ensuring timeframe management.

Other councils have moved to this model.  As an example Auckland Regional Council has established a Major Projects team within the Regulatory/Consenting section.  Its role is as set out above.  Members of the team need to be senior planners with considerable experience.

3.2   Policy and Plan Development

3.2.1 General Observations

RMA Planning at ECan is a significant weakness.  In the Review Group’s opinion this has driven many of the observed current RMA-related problems.  ECan has created real policy confusion and inertia, particularly in relation to water. 

ECan has a number of specific operative Regional plans, but the overarching Plan for the Region, the Natural Resources Regional Plan (NRRP), is 'stuck' in its First Schedule process, and the Council is wanting to develop (we believe correctly) more specific Regional Environmental Flow Plans. If these Environmental Flow Plans are notified prior to the NRRP being operative (which is likely to take some years to become fully operative due to decisions not being released until late 2010 and then the appeals), it will unsettle things further from a sequencing and prioritisation perspective.  Some of the common criticisms from both internal staff and external stakeholders of ECan’s RMA planning include:

• The planning process is extremely slow, both in terms of plan development and management of the First Schedule processes.  Project management is reported as a significant weakness in planning.
• Plans, and plan interpretations have historically been very narrow and conservative (refer to our later comments on ECan legal interpretations).  External parties consider that officers’ reports on plans are poor – generally low quality analysis, pedantic, follow the letter of the law (very narrow) and risk averse.
• There is a lack of economic perspective to balance what is perceived as a pro-natural environment approach in Plans and officers reports, in particular section 32 reports (we address this issue in a later section).
• The NRRP is highly complex, technical, lengthy and very difficult for even well resourced external parties to interpret.
• A perception that ECan has a pre-determined approach to plan consultation, and that it has a history of starting with the end point decided.
• Inconsistency across Planning is a major problem raised by internal staff– e.g. launching the Canterbury Water Management Strategy (CWMS) at the same time as the Waimakariri River Regional Plan Change was notified (which was also notified at the same time as the Central Plains Water consents decision making period; this seems at odds with the decision making process).  Staff consider that there is a “left hand not coordinating with the right hand” situation, and management not “owning or coordinating the overall planning framework, and this results in a hodge podge of plans at various stages of their lifecycle and little understanding even from with ECan of how they will all tie together”.
• Aligned with the inconsistency issues above, multiple planning processes run simultaneously.  This is observed to result in multiple outcomes that mean some of the statutory processes will need revisiting.  Strategic direction from ECan leadership is required to avoid duplication, achieving beneficial outcomes for all.

We note that not all aspects of the Planning framework are as problematic as described above.  Our observation is that the work being undertaken on the review of the Regional Policy Statement and the Regional Environmental Flow Plans is following better process, and this is a view supported by external parties.  Fundamental to this is the adoption of a strong project management approach, coupled with a sense of urgency, and supported by collaboration across ECan.  The greater use of non statutory and non regulatory tools is an example of areas we see ECan as showing significant promise (we address this in more detail later in this Report). 

ECan management recognise that the Planning Group has historically been very slow in preparing plans, and is seeking a move away from the ‘plans take as long as they do’ mentality, including through:

• Introducing project management as a core competency.
• Increasing the sense of urgency in plan development.
• Increasing collaboration among parts of the organisation to ensure draft plans are grounded in reality (i.e. are workable) before they move into First Schedule processes.
• Moving some staff out of consents into planning to improve cross-functional interaction.
• Changing the balance of planning to be more focused on the end user (solutions focused).

The Review Group does not consider that these initiatives are sufficient to address the failings within the Planning and Consents Directorate (we also note the comments in relation to the Consents-specific issues in earlier sections).  ECan needs to urgently address its confused, inconsistent and unsettled policy / plan framework.  We consider that ECan is suffering to a degree from historical institutional issues that are beyond the influence of current staff, and whilst we agree that there have been improvements, the Review Group believes that the entire RMA Planning function requires an overhaul to remove systemic failures.  Greater clarity would make consent processing (in terms of having an operative policy / plan framework) somewhat certain.

3.2.2.          Natural Resources Regional Plan

Central to the criticism of RMA planning at ECan is the Natural Resources Regional Plan, which has been under development for well over a decade.  Originally conceived as a Region-wide, issue-comprehensive document that would provide a fully integrated RMA planning framework for the Region, the NRRP has evolved into “an extremely weak and complex document that is stuck in First Schedule processes.”  The duration of preparation of the NRRP has forced variations as it has become outdated and overtaken by many issues, especially regarding water. 

As discussed in detail in the main body of this Report, the lack of an operative Region-wide planning framework and failure of ECan to adequately recognise the rapid emergence of water as the major strategic issue in the Region has directly contributed to the situation today.  The Review Group does not accept ECan’s view that the RMA has caused (or directly contributed to) the water-related challenges in Canterbury, and note that other water-challenged regions (such as Hawke’s Bay, Tasman and Marlborough) have been able to manage water under the RMA (we accept that the scale of the water issue in Canterbury is significantly larger than anywhere else in New Zealand).  We believe it is the failure to comprehensively plan for water use in the Region that is the cause of current challenges, as opposed to the legislative barriers perceived by ECan. 

The NRRP is a large plan; both in geography and scope (external stakeholders describe its size and complexity as “overwhelming”).  Part of the concern raised by internal staff is that to actually implement the NRRP will take massive resources, and that ECan doesn’t yet understand the implications of this.  Several staff and external parties consider that ECan should identify the main issues that the NRRP currently covers and prioritise, and then prepare the Plan around the priorities.

Some of the fundamental issues with regard to water management and the NRRP include:

• Some internal staff and external parties consider that the allocation model promoted by the NRRP is flawed. ECan is using it to review consents, yet the Environment Court and Hearings Commissioners have repeatedly made decisions contrary to the recommendations of ECan officers.
• Staff are unsure what happens with the CWMS zonal committees with regard to the NRRP if zonal committees develop options that are in conflict with the NRRP (in terms of which would hold precedence)
• RPS-NRRP sequencing is a major risk if the RPS is notified before NRRP decisions are released, especially as the CWMS is intended to be given effect to (partly) by the RPS.
• The NRRP as drafted is very general, and is considered by staff to be of minimal help in guiding decisions of Council.

3.2.3 Regional Policy Statement

ECan is preparing a new Regional Policy Statement (RPS).  The responsibility for this sits in the Regional Programme Directorate and not the Planning and Consenting Directorate.  The Review Group is unclear (as are most of the staff and external stakeholders spoken to on this matter) how the NRRP and proposed RPS will relate to each other given the stage the document is at, that different teams are preparing the documents, and that the timeframes are different for each. 

ECan acknowledges that this is a risk, particularly if the NRRP decisions on submissions are finally released after the proposed RPS is notified.  ECan staff believe the most pragmatic approach is to continue with RPS development. They expect that NRRP timelines will be met (and sequencing issues avoided).  ECan staff noted that there is a risk of judicial review but have made a decision to continue with RPS development. 

Staff perspective regarding the RPS is that it is a “document for local government, not just ECan, and is seeking a move toward consensus in the Region.”  As part of this move toward a consensus for resource management in the Region, there is a lot of provision for non regulatory intervention in the RPS (whilst keeping the regulatory ‘backstop’ as a last resort).  This includes through giving effect to strategy documents, such as the Biodiversity Strategy, Energy Strategy, and Urban Development Strategy. 

The Review Group has not examined the draft RPS as it had not been released when our investigative work was being undertaken.  We are, however, encouraged by what appears to be a far more collaborative and constructive approach to policy development, especially with Territorial Authorities.

3.3   Other RMA Implementation

3.3.1 Sustainability Limits & Cumulative Effects

Although ECan has attempted to manage sustainability limits and cumulative effects through its RMA policy and planning framework, the inability to move the NRRP through the First Schedule process has led to de facto management of sustainability limits and cumulative effects through the resource consent process.  This is not ideal and has contributed significantly to the drawn out, litigious situation in Canterbury – with particular  regard to water.  It has also led to ‘science vs. science’ issues, as the lack of an operative planning framework has left the scientific debate open.  ECan has been at odds (publicly) with both the Environment Court and Commissioners following decisions that were not consistent with ECan’s perspective at a staff level.

3.3.2 Monitoring

Both individual consent monitoring and enforcement (within the Regulation Directorate) and overall plan effectiveness monitoring (within the Regional Programmes Directorate) have undergone considerable improvement recently. 

Consent Monitoring and Enforcement

An issue raised by internal staff has been that historically, when faced with statutory monitoring/enforcement challenges (under the RMA), “pragmatism went out the window”, and ECan became very risk averse.  This led to adversarial relationships with consent holders – some of which could have been avoided through ECan being more pragmatic and flexible in its dealings.

ECan is now taking a risk based approach to monitoring, which allows prioritisation and flexibility in decision making. The intention is that higher risk activities lead to higher levels of monitoring/oversight, and that taking a pragmatic approach allows ECan to prioritise and deal more effectively with the most significant issues.  As an example of a more pragmatic and flexible approach to enforcement, ECan have started using alternative dispute resolution and restorative justice to replace court action. 

ECan’s Regulation Directorate (responsible for consent monitoring) is seeking to become much more collaborative in monitoring and enforcement, as an alternative to the ‘command and control’ approach it has historically undertaken.  Management identified “a spectrum between pure enforcement 100% of the time and full collaboration (i.e. giving in too often to polluters etc)”.  ECan is seeking to move along the spectrum from a purely enforcement focus (without considering context in non-compliance) toward collaboration with consent holders who are non-compliant, to ensure an optimal solution for both ECan and the consent holder.  The Review Group considers this move to be positive, but notes that this perspective is not yet widely held externally. 

Plan Monitoring

Plan implementation monitoring needs significant improvement.  Historically, plan monitoring has tended to look backward, at what had (or had not) been achieved after a plan has been operative for a number of years.  ECan has recognised the need to look forward and to design the monitoring and evaluation framework at the outset of plan development with the effectiveness measures in mind to allow progress against the plan to be tracked over time. 

There is a relatively new Programme within the Regional Programmes Directorate aimed at taking ECan from outcomes evaluation to being focused on policy effectiveness monitoring, with links to priorities through the annual plan and LTCCP processes.  This Programme aims to have effectiveness monitoring built into all plans at the outset of plan development.  The Review Group considers this approach to be strong, and some of the more innovative work we found within ECan.

The focus of this Programme is now on getting cross-organisational input to thinking about how plans and policies will be implemented, which leads into cost / priority setting during plan development, rather than the historic approach (which is common across New Zealand) of failing to adequately consider how to evaluate effectiveness until well after the plan has been completed.  This requires a cross-disciplinary approach to planning and evaluation; something that we note is made more difficult with the approach to internal user pays within the organisation.

3.3.3 Relationships with applicants and submitters

Consistent and serious concerns were raised regarding the nature and quality of engagement with applicants/submitters, particularly for large complex consent applications or through RMA plan development (the NRRP in particular).  Of particular concern to the Review Group is that the issues raised by external parties were consistent in nature, and differ quite strongly from the perspectives of ECan staff when asked about their organisation.  Relationships with major applicants canvassed by the Review Group are universally poor. 

There is clearly a major perception gap between internal and external views of ECan.  All external applicants spoken to raise concerns around perceived intransigence of staff to accept that decisions made by Hearings Commissioners/the Environment Court have set precedent.  Concern was also expressed that processes are extremely slow, and that if ECan ‘lose’ a case, staff actively slow processes down and impose unworkable or impractical conditions (NB: this is anecdotal and we have not been provided any evidence to substantiate this assertion).

Common themes raised by external parties spoken with (regarding both consenting and plan development) include:

• Inconsistency of staff interpretation of council plans/policy, frequently referred to in relation to consents officers.
• Intransigence when confronted with challenging situations “ECan not getting its own way and deliberately slowing processes down or reacting publicly”.
• Science led rather than science informed (see earlier comments about technical staff).
• Large numbers of staff are “green” in orientation, which leads to an imbalance of environmental protection over other considerations.
• A vacuum of economic, social or cultural consideration (ref. “green” comment above).
• Consents – planning understanding gap.
• Dysfunctional council from a decision making perspective. Too much focus on minor detail and “bickering” at the expense of major decisions.

An exception to this from a planning perspective is the consultation undertaken with Regional Policy Statement development, with a very collaborative approach, especially with regard to TA engagement in the process of developing the RPS. 

An example of a good consenting-specific process that keeps stakeholders engaged is a quarterly ECan – Christchurch City Council consenting meeting.  This enables both ECan and the CCC to be fully aware of issues in a timely manner and work together to ensure ‘no surprises’ and a collaborative approach to dealing with issues.  The Review Group believes this is an example of good practice that ECan should adopt for all significant applicants/stakeholders, similar to an account management function in professional services firms.

From a consenting perspective, we believe that case management of large, complex consents would provide significant improvement to the way that applicants and submitters perceive ECan’s management of consents.  This would provide ECan the ability to communicate it’s perspectives to external parties, and to hear and understand issues relevant to the particular stakeholder.  We feel that this will help address the significant gap in perception that exists between ECan’s view of itself and that held externally.

3.3.4 Relationships with Territorial Authorities in RMA Decision Making

From an ECan staff perspective, engagement with TA’s at a staff level is fairly positive, and appears to have improved.  ECan has nominated a director to be ‘account manager’ for each TA, to ensure that each TA has a single point of contact at a senior level should they have any issues to raise / escalate.  In addition, ECan have relationship meetings with each TA fairly frequently.  Recently, this has included canvassing each of the points raised in the Mayor’s letter to Minister Hide, and agreeing on an action plan to deal with all points raised.  Several ECan staff considered that the points raised in the letter did not reflect the relationship that ECan – TA’s actually have.

The concerning issue with regard to TA engagement is that the territorial authorities spoken to (at the Chief Executive and Mayoral level) feel very strongly that the relationship has been poor to the point of being dysfunctional.  This clearly has a strong historical component, but is at odds with the perspectives from inside ECan.

3.3.5 Relationship with Ngāi Tahu in RMA Decision Making

Ngāi Tahu is the iwi with mana whenua status in Canterbury and as such has a statutory relationship with ECan, provided for through both the Local Government Act and Resource Management Act (and other statutes).  The relationship between Ngāi Tahu and ECan could be improved through a more proactive, strategic approach from ECan¹⁵.  Iwi engagement is not well resourced and given insufficient priority within ECan. There is a single person acting in an iwi liaison function, within the External Relations Directorate.

Given the significant demand placed on iwi consultation and engagement from both an RMA and LGA  perspective, and noting relevant provisions of the Ngāi Tahu Claims Settlement Act, this is considered inadequate by Ngāi Tahu.  Ngāi Tahu also note that the cost of consultation is very high, is not cost recoverable for them and see themselves as often having to subsidise RMA processes to ensure Ngāi Tahu values are adequately provided for. Ngāi Tahu report frustration with the range of demands for engagement without clearly understood and established systems and processes for their input and monitoring this engagement.

In its submission to the ECan 2009 Annual Plan, Ngāi Tahu requested a review of the iwi liaison function to bring it into line with other councils.  Ngāi Tahu consider that there is a lack of clarity within ECan around its role and interaction with iwi, and has asked ECan to review this.  Specifically, it is seeking a clear structure with identification of roles, priorities, responsibilities and skills needed on both sides.

From Ngāi Tahu’s perspective, the 2002 Local Government Act reforms had a negative impact on the relationship with ECan.  The reforms required ECan (and all local authorities) to provide for both iwi with mana whenua status (in this case Ngāi Tahu), as well as Maori generally within the Region.  In the view of Ngai Tahu, ECan struggled to deal with this change and as a result lost their way for a considerable period in terms of their relationship with Ngāi Tahu and Papatipu Rūnanga.

The Review Group is aware that ECan has made some progress in improving its engagement approach with Ngāi Tahu in recent months, and supports this.  This includes consideration being given to ECan support for Mahaanui Kurataiao.  Mahaanui Kurataiao is based on a similar model developed in Southland in the late 1990’s.  Te Ao Marama is a jointly funded organisation in Southland that is a single port of call for iwi and all councils, and provides advice on Ngāi Tahu issues and values.  Te Ao Marama and councils are guided by an Iwi Management Plan, produced with significant input (including staff secondment from Environment Southland) from Councils.

We are aware that ECan visited Environment Southland recently to consider the approach taken in the Region and is considering the Te Ao Marama model.  We also note that the staff member from Environment Southland responsible for developing the iwi management plan has recently joined ECan, although not in this specific capacity.  It is noted that ECan are supporting the development of an Iwi Management Plan in central Canterbury. Use of a similar model to Environment Southland would encourage ECan to provide additional staff support to this process.

On a positive note, ECan’s Māori Advisory Committee meets quarterly with representatives of eight Rūnanga and Te Puni Kōkiri.  The minutes of these meetings indicate they have value for both Ngāi Tahu and ECan and note activities where Rūnanga have been contributing to programmes and policy development.  In saying that, a MoU was presented by Ngāi Tahu to ECan in 1999, and still remains unsigned.  ECan recently requested that this be signed, but Ngāi Tahu felt there was significant relationship and trust building initiatives that needed to occur before such a document could be signed. 

3.3.6 Non Statutory / Non Regulatory methods

In recent years ECan has put significant effort into a variety of non statutory / non regulatory initiatives.  The emphasis on implementing a more collaborative approach with the community to decision making involves building relationships and trust with key stakeholders through interaction outside and before the statutory (RMA) processes by ensuring workable options are put forward that are able to be adapted by community stakeholders.

When asking staff about their perceptions of what ECan does particularly well, the vast majority of examples provided were collaborative, non statutory/non regulatory initiatives including:

• The Biodiversity Strategy
• The Energy Strategy
• The Canterbury Water Management Strategy
• The Resource Care Programme
• The Urban Development Strategy.

The Review Group recognises that the efforts in this, particularly through the Regional Programmes Directorate, enhance the effectiveness of issue-specific implementation.  We do consider however that there needs to be statutory (RPS, regional or district plans) backing to such non-statutory initiatives should the collaborative approach fail.  The absence of the regulatory planning framework (at the least as a backup) we believe, will lower the likelihood of successful long term implementation.

3.3.7 Considering environmental, economic, social and cultural perspectives in RMA decision making

A commonly held perception from both staff and external stakeholders is an imbalance between the environmental, economic, social and cultural perspectives in RMA decision making.  We have already noted earlier in this Report that there is a strong imbalance of scientifically trained staff vs. planners, resource management specialists, economists, social scientists and people with cultural expertise (including iwi relations).  We believe this to be especially problematic in the Planning and Consents Directorate, which is where much of the ‘weighing’ role required in the RMA should be undertaken.  One of the fundamental roles of a resource management planner is to weigh all of the evidence/information (in terms of the RMA and the relevant Policy and Plan documents) and make an informed overall judgement/recommendation so as to assist the hearings panel and/or Council in making their resource management decisions. 

3.3.8 Quality of RMA legal advice

There is a widely held perspective, expressed by internal and external parties that ECan has suffered from very conservative and narrow legal advice with regard to the RMA.  We have no specific evidence other than anecdotal feedback, but several stakeholders have experience with interpretations of the RMA from across New Zealand and consider ECan to be extremely conservative in its approach.

3.4   RMA Recommendations

Some of these recommendations were made without anticipation of the creation of the Canterbury Regional Water Authority; that is, they stand regardless of the broader institutional change recommended by the Review Group.  It is appropriate that the Commission charged with executing the changes at ECan consider these recommendations in the light of the other institutional changes it would be responsible for.

RMA Recommendation 1: Fit for Purpose Review of Planning and Consenting Directorate

We recommend a ‘fit for purpose’ review of the Planning and Consenting Directorate to be undertaken as a matter of urgency.  This review should be undertaken by an independent external party familiar with best practice, not from within ECan.  The review should consider the following:

• The structure of the current Directorate (including consents) and its appropriateness given the issues we have identified.  Particular focus should be given to the third and fourth tier of management within the Planning Group.
• Resource Management Act content leadership should be introduced in the consenting section.  This should be either the appointment or secondment of senior planning / resource management specialists into the Consenting Section, at a management level.
• ECan should consider setting aside a portion of all staff time as non-chargeable (suggest 20-25% contingency) to allow staff time to provide more input to policy and planning work and to work together on cross-boundary issues.  This would greatly assist cross-organisational integration, and allow adequate time / resources to deal with emerging issues.
• A broader range of skills is required in the Consenting Section – notably planning skills.  Officers with the appropriate planning/resource management skills need to be in positions to influence the form and content of the application assessment, the section 42A reports, and the hearings process.
• ECan needs more planners, resource management specialists, economists and social scientists on staff to better provide for a broader range of perspective and allow balance between environmental, economic, social and cultural perspectives.  This should be considered as part of the ‘fit for purpose’ review we have recommended for the Planning and Consenting Directorate.
• Increasing project management capability within the Directorate.
• Appropriate experience required of staff (including understanding of the consenting, and monitoring and enforcement functions of Council).
• Addressing the policy and planning confusion that ECan currently presents (taking into account the recommended creation of a Canterbury Regional Water Authority).
• How to better integrate planning and consenting functions within ECan (this would also apply to the CRWA).
• Whether to bring the Regional Policy Statement into the RMA Planning and Consenting Directorate to ensure alignment of all RMA related policy and planning documents.

RMA Recommendation 2: Hearing Commissioners

ECan needs to more actively and effectively manage the Commissioners hearing process in terms of accountability, responsibility and timeframe management.  We recommend ECan review its Commissioner pool as a matter of urgency and determine if it has sufficient numbers of Commissioners and the right skill set – i.e. planning/resource management, legal and technical.  It should also determine if it should ‘go back to the market’ and seek expressions of interest for external Commissioners to determine who is available. 

It would also be an opportune time to consider contracting Commissioners, and to clearly set out their roles, obligations and responsibilities, and to consider performance standards such as decision timeframes (including the issuance of section 37 notices if required). 

This process needs to ensure there are a sufficient number of Commissioners, with the right skills and with clear accountabilities and a commitment to meeting agreed timeframes.  This should, in part at least, address the issues of timeframe management and over-reliance on certain commissioners.

RMA Recommendation 3: Pre-Lodgement Cost Recovery

ECan should consider cost recovery pre-lodgement, to remove the perceived barrier to more effective pre-application engagement with major applicants – in line with the practice used by most councils. 

RMA Recommendation 4: Case Management for Large Consents

ECan needs a ‘case management operating model for large/complex consent applications.  Significant resource consent applications (e.g. large takes) or applications that have multiple aspects to them (e.g., takes, discharges, structures, joint land use hearing with the territorial authority, etc), should be specifically case managed. 

The focus should be on greater clarity around role and strategy and will include significant pre-application engagement and team mobilisation.  There should be a senior person appointed to manage the process and to be the ‘go to’ person for internal experts, the applicant and submitters.

The skills required include: project management ability, strong communications and stakeholder management skills, experience in processing larger scale resource consent applications, understanding of the RMA purpose and processes, and an in-depth appreciation of the Canterbury Policy and Planning framework.

RMA Recommendation 5: Stakeholder Engagement

We recommend that ECan institute an ‘account management’ approach for dealing with major stakeholder groups, in much the same way as exists with territorial authorities.  Senior members of staff would have responsibility for developing and maintaining relationships with specific groups or organisations, including potential applicants, NGOs, and industry groups.

RMA Recommendation 6: Iwi Liaison

The Review Group recommends that iwi liaison be elevated in importance within ECan.  We suggest that, in line with other major cross-organisational programmes, iwi liaison should be placed within the Regional Programmes Directorate, elevated in importance (to a management role), rebranded as Iwi Relations, and provided with significantly more resources.

ECan should define and agree roles, responsibilities and priorities with Ngāi Tahu. This includes the provision of appropriately skilled staff and establish budget provisions that allow ECan to acquire technical tangata whenua advice from tangata whenua resource management entities such as Mahaanui Kurataiao (an organisation that is currently jointly funded by Christchurch City Council, Waimakariri and Selwyn District Councils).  ECan would also need to work proactively with the Rūnanga of South Canterbury and Kaikōura to establish similar arrangements.

RMA Recommendation 7: Fit for Purpose Review of Legal Team

We recommend ECan undertake a review of its internal legal team to ensure it is fit for purpose (in terms of resourcing, capability and experience), and consider seeking alternative advice from outside the Council, when required.