Infringement Notices: Are they working?
1 Introduction
The purpose of this study was to gather 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.
Infringement notices came into force on 1 February 2000 and were intended to be swift, efficient and inexpensive. There is some concern that this may not be the case when the party to which the notice has been served requests a defended hearing.
1.1 Current information held
The Ministry for the Environment 2001/2002 survey of local authorities asked councils questions about their use of infringement notices. Of the 620 infringement notices issued, 47 were not proceeded with and 326 were 'appealed' to court.
Karenza De Silva conducted a study on the use of infringement notices in April 2002. The survey looked at the use of infringement notices by 15 councils over the period 1 February 2000 to 30 June 2000 and 1 July 2000 to 30 June 2001. The report summarised what these councils considered the advantages and disadvantages of the infringement procedures.
Advantages
- Infringement notices are an effective enforcement tool if the infringement fee is paid.
- It is not necessary to file documents in court because the process is swift, efficient, inexpensive and an effective deterrent.
- Infringement fees have been paid for the majority of notices issued.
- Infringement notices are being used for minor breaches as intended.
Disadvantages
- Infringement notices cannot be used to enforce technical conditions of consents and to provide for this an amendment would be needed to the Act and the regulations.
- The process does not allow for recovery of monitoring and other costs. This can dissuade councils from using infringement procedures where monitoring costs exceed the infringement fee.
- The procedure is expensive if the notice is challenged.
- If the infringement procedure is not followed exactly or there is a defect in the notice, then the action cannot be pursued.
It would appear that, since Karenza De Silva's study during 2000/01, councils' use of infringement notices may have changed. The Ministry for the Environment survey results for the 2001/02 year showed that, for a large proportion of infringements, a hearing was requested, whereas during the De Silva survey councils commented that most infringements were paid. Therefore, further investigation is needed to assess any change in the frequency of infringement notices being appealed and any changes to the way in which councils administer this section of the Act.
The Ministry for the Environment met with Greater Wellington Regional Council and trialled a set of questions to determine whether the information required to undertake the above investigation is likely to be readily available.
1.2 Future information
The next Ministry for the Environment survey of councils covers the period 1 July 2003 to 30 June 2004. To build a comprehensive picture of what is happening with infringement notices, more specific information centred on the use of infringement notices is required.
2 Methodology
The following methodology was designed to obtain the required information in a cost effective and efficient manner. A written questionnaire was circulated to nine councils and followed up by a phone call. The questionnaire covered the period from 1 July 2002 to 30 June 2003. The methodology is described in more detail below.
2.1 Task one: confirm councils and questionnaire
The questions used during the Greater Wellington Regional Council interview were reviewed and modified so they were easy to follow and answer in written form. Explanatory notes were added to help councils accurately answer the questions. Nine councils were contacted from the Ministry for the Environment list of high hearing requests (see list below). A mix of both regional, unitary, city and district councils was used.
Councils contacted
- Auckland City Council
- Nelson City Council
- Auckland Regional Council
- Northland Regional Council
- Environment Canterbury
- North Shore City Council
- Environment Southland
- Waitakere City Council
- Environment Waikato.
2.2 Task two: letter to councils
A covering letter was sent with the questionnaire to the nine enforcement managers. The letter gave reasons for the study and asked that the information be collated before the follow-up call.
2.3 Task three: follow-up call
The enforcement managers were interviewed by phone to determine full answers to the questionnaires.
Environment Waikato and Waitakere City Council were unable to participate in the questionnaire.
3 Results
This study found that infringement notices are being well used, with councils describing them as a fast, efficient and inexpensive enforcement tool.
The study reviewed 384 infringement notices issued by seven councils in the 2002/03 year.
| Infringement notices issued 2002/03 | |
|---|---|
| Auckland City Council | 74 |
| Auckland Regional Council | 135 |
| Environment Canterbury | 50 |
| Environment Southland | 15 |
| Nelson City Council | 13 |
| Northland Regional Council | 60 |
| North Shore City Council | 37 |
All the councils surveyed have developed, or are in the process of developing procedures or guidance notes on the decision-making process and issuing of infringement notices. Some councils commented that there was no guidance when infringement notices were first introduced and that they had struggled with the legal ramifications. Most of these issues have since been ironed out.
The delegation level for determining whether an infringement notice should be issued is not uniform across councils. The levels range from enforcement officer to team leader to manager to a decision panel. The level of delegation does not appear to influence the number of hearing requests.
Some councils expressed concern that the level of fines was quite low. A breach of s9, the most common for city councils, attracts only a $300 fine. One council even commented that they would usually issue an abatement notice first so that the infringement notice can be issued for breach of abatement notice and attract a $750 fine. Another council commented that sometimes the level of fine does not reflect the seriousness of the offence.
The issues that councils have with infringements notices are, on the whole, of a minor nature and largely outweighed by the benefits of this enforcement tool. The issues and benefits are outlined below.
Issues
- Big leap from infringement notices to prosecution.
- Can be considered as a licence for breaching.
- Process not always instant if gathering evidence such as lab results.
- Expensive if a hearing is requested, level of fine not commensurate with the cost of defending.
- Delays with the court recovering fees.
- Some fine levels too low (eg, $300 appropriate for damage to protected tree but not suitable for some large developer infringements).
- Court requirement for date of birth to ensure collection. Difficult to obtain.
Benefits
- Quick.
- Inexpensive.
- Good for dealing with low level offences.
- Have more impact than abatement notices.
- 'Mix and match' option with other enforcement tools allows for greater flexibility and good results.
- Good deterrent.
As noted, the 2001/02 Ministry for the Environment biennial survey of local government reported a high level of infringement notices being 'appealed' to Court. The 2001/02 biennial survey reported 189 hearing requests for the seven councils surveyed for this study. In comparison, for this study the seven councils reported a total of only 13 hearing requests in 2002/03. This equates to 3.4% of all infringement notices issued by the seven councils in 2002/03.
Comparing the 2001/02 biennial survey results and the 2002/03 results from this survey shows a marked difference. The comparison clearly illustrates that the question relating to hearing requests in the 2001/02 Ministry for the Environment survey of councils was misinterpreted.
Many councils have registered infringement notices at the Court for collection and this factor probably contributed to the confusion that has arisen. It would appear that infringement notices referred to Court for collection have been reported as 'appealed' in the 2001/02 Ministry for the Environment survey.
4 Conclusion
All of the councils that responded to the questionnaire commented that infringement notices were an extremely useful tool. They are achieving the goal of being fast, efficient and inexpensive. Many councils stated that they were the most often used enforcement tool and that they are an excellent mechanism for dealing with low-level breaches.
