Bob Edlin: RMA breach - The curious case of the council which slapped itself with an abatement notice over river work

Southland farmers are familiar with the environmental regulations heaped on them under the Resource Management Act and the penalties imposed for breaching the rules.

A headline in Farmers’ Weekly last November told a typical story:

Farmer cops huge fine for ignoring abatement notices

 A high-profile Southland dairy farmer and his business have been ordered to pay $71,500 in the Invercargill District Court.

An abatement notice from Southland Regional Council is a legal document instructing someone to take action to address a violation of environmental laws or regulations. It’s essentially a formal notice that an issue exists and what needs to be done to rectify it.

Point of Order gives credit to the council for its impartial exercise of its powers. It has issued an abatement notice against itself.

This suggests there is a curious disharmony in the council: one bunch of staffers can go about their work oblivious to the fact they are breaching the laws and regulations which are policed by another bunch of staffers.

This further suggests ratepayers are picking up the tab for whatever must be done by the enforcement staffers to get the law-breaking staffers to comply with the raft of laws and regulations which their employer must police.

All of this came to light in a report from Local Democracy Reporting which said:

Environment Southland has landed itself in hot water for undertaking work at a stream which resulted in a self-inflicted abatement notice.

The August 2024 notice came to light last week during a pointed presentation to council from Mataura Catchment Liaison Committee chair Hugh Gardyne.

Local Democracy Reporting obtained a copy of the notice, which shows the council took action against itself after a complaint was lodged by Fish & Game New Zealand.

LDC says:

The council was contacted by the organisation in March 2024 over concerns there had been a heavy-handed approach to removing willows within the stream, likely at the hands of the council.

Fish & Game accepted some willow control was necessary, but felt the outcome far exceeded a selective and considered approach, the notice said.

Council enforcement officer George Gericke said the work included excavating gravel to control erosion and stabilise the bank.

He reached the conclusion the Resource Management Act had been breached, with a possibility of prosecution.

The notice was issued just months before the council – on December 2024 – released a press statement to brag about a “steady improvement” in environmental compliance across the region.

A total of 30 abatement notices were issued in 2023/24 compared to 60 for 2022/23, it said.

Council official Lucy Hicks (she’s grandly titled the council integrated catchment management general manager) said the council’s move to issue an abatement notice against itself was not something it had done often.

The compliance team investigated two complaints from the public in relation to the stream, and the investigation was now closed, she said.

“An abatement notice provides a transparent way for Environment Southland to instruct someone, even its own teams, to ensure that the rules are being followed.”

The August 2024 notice came to light last week during a presentation to the council from Mataura Catchment Liaison Committee chair Hugh Gardyne, who said catchment management was in “a state of paralysis” that had evolved under the chief executive’s watch.

He accused Hicks of not communicating effectively with liaison committees and ignoring three requests to meet between December and February.

Gardyne was critical of the abatement notice for the Waimea Stream which he felt stopped essential work.

In response, Hicks said catchment liaison committees played an important role and the council was working to improve communication with them.

Since taking on the general manager role in August, she said she had met regularly with a range of groups and people in the Mataura catchment.

There are eight catchment liaison committees in Southland, tasked with helping the council develop annual maintenance programmes and budgets, as well as involvement with river and land drainage issues.

The council’s web page includes a document headed

COMPLIANCE POLICIES

Environment Southland Monitoring Policy

OCTOBER 2017

PoO assumes this is the most recent documentation of council policies on compliance.

The policy statement includes guidance on conflicts of interest, which is bound to arise when it is issuing abatement notices against itself:

This statement provides guidance for staff as to where a conflict of interest may arise (and therefore how to avoid a conflict of interest) and a mechanism for ensuring that any actual or potential conflict is disclosed and managed appropriately

The compliance statement further says an abatement notice is a formal, written directive.

The form, content and scope of an abatement notice are prescribed in the RMA. It is written by a warranted officer and will instruct an individual or company to cease an activity, prohibit them from commencing an activity or requiring them to take action.

An abatement notice is legally enforceable.

Such a notice may be appropriate any time there is a risk of further breaches of environmental regulation, or remediation or mitigation is required as a result of non-compliance.

Then there’s something called an enforcement order, which is similar to an abatement notice as it can direct an individual or company to take the same actions contained in the abatement notice.

However an enforcement order is granted by the courts so the options can be far in excess of the scope of an abatement notice. An enforcement order is legally enforceable. An application can be made to recover all reasonable costs of an enforcement order from the offending party.

Enforcement orders can be sought as an individual action or as part of sentencing after being found guilty of an offence. Environment Southland will normally seek an enforcement order as part of sentencing.

PoO will keep on eye on things, to see if Environment Southland’s enforcement team gets around to issuing an enforcement order which lands the council in court…

Bob Edlin is a veteran journalist and editor for the Point of Order blog HERE. - where this article was sourced.