This section considers the Local Government Act (and other legislation) matters contained in the Terms of Reference, other than those discussed in the previous section pertaining specifically to water.
Regional Councils are bound by many acts covering a wide range of subjects. In addition to the Local Government Act 2002, and in terms of its normal operations the following were seen as significant in the context of the Review.
The subject of the Act is a significant focus for ECan in regard to erosion control and river management. There are 63 river rating districts in the Canterbury region. Christchurch has the highest value land at risk of flooding. A new secondary stop bank system has just been consented. This is an innovative concept to detain and direct the water back into the river and is reported to give 1/1000 year protection. We found no issues of concern in terms of ECan meeting its obligations under this Act.
ECan has met the accreditation requirements that address process and capability and achieved Registered Building Consent Authority status in respect of large dams, which is its major obligation under the Building Act.
Animal pests including rabbits and wallabies are a significant issue. ECan is taking a new collaborative approach district by district. This is getting better support from landowners. Control of weeds (particularly Nassella Tussock) is active with challenges varying across the region. This also requires high levels of landowner collaboration and support with enforcement as a necessary backstop. We found no issues of significant concern in terms of ECan meeting its obligations under this Act.
The Regional Transport Committee is supported and functions effectively. There is some concern expressed by Christchurch City about disproportionate representation however that is the product of the statute. Representation appears not to be detrimental to the city’s funding programme. The Review has revealed nothing to indicate obligations this Act are not being reasonably fulfilled, although questions were raised by Christchurch City Council regarding where public transport best fits between the two agencies. A detailed assessment of this was not undertaken by the Review Group, but we note the concerns raised by Christchurch City Council. Christchurch City Council is strongly of the view that the present arrangement leads to material additional costs due to the overlaps in responsibility between Christchurch City and ECan, and that this resource would be better applied to improving public transport services. Rather than making specific recommendations to address perceived issues, the Review Group feels that it is appropriate that the Commission initiate a review to consider the optimum arrangement for the management and operation of the public transport fleet within the Region. The overwhelming bulk of this activity is within Christchurch, however we note that three other Districts are also serviced by public transport managed by ECan. The Commission we have recommended to replace ECan would act on that review when completed.
This is the legislation under which ECan is duly constituted. The review has found that while most functions of local government are being adequately addressed, those policy and regulatory functions as prescribed by the RMA are not. Performance in this area in relation to water matters was found to be significantly poorer than might be expected of a regional council fulfilling its obligations as a responsible local government. The Review also identified that there are some organisational cultural matters and relationships with territorial authorities that need determined and specific attention by management.
The common theme can be summarised thus: “ECan – the 7-all Council”. The council is currently balanced (7:7) in respect of environmental and economic issues. Another divide noted is about long term versus short term which is allied to the environmental versus economic argument. The differences of view are arguably representative of community differences. There is no inherent problem so long as decisions are able to be made. By all accounts and by reviewing a number of key decisions deadlocks do not occur on substantive motions. We note however, that while we were undertaking this investigation, ECan voted 10:2 in favour of endorsing the CWMS.
Some bitterness remains from the relatively recent political history of ECan and the changing of Chair. Most councillors agreed the styles of the previous and new Chairs are very different. The allocation of portfolio responsibilities seems to be generally working well. The new Chair has recently reallocated some portfolios, so those are still settling down. There appears to be some variation in performance by the portfolio leaders – some are very on top of their portfolios and are managing their committees well. Others are taking a more passive approach.
Committees involving wider representation (e.g. Regional Transport Committee), various hearings committees, Finance and Audit and the Regional Planning Committees meet regularly and formally. A number of other standing/portfolio Committees dealing with operational matters do not meet formally but are expected to be convened informally as required by the portfolio Chair. Examples are the Passenger Transport and the Biosecurity committees. In these cases, matters are formally debated and determined at meeting of council with the agenda items being introduced by the committee/portfolio chairs. This does mean a greater level of debating time in full council. Two portfolio chairs would prefer the more traditional committee approach with regular meetings and formal recommendations to Council. Both Councillors had previous experience with TA’s that operated significant delegations and it was only the exceptions that were debated in the council meeting.
Almost all external parties interviewed had a negative perception of ECan’s governance. There is a widely held view that councillors are so polarised at times that they are dysfunctional as a group. There is insufficient leadership, and the council is too busy protecting individual / Party perspectives and fails to pay sufficient attention to leading the Region. Our investigation did not bear this out. ECan is meeting its legal obligations under the LGA but has been unable to establish a firm planning environment which flows through to poor relationships and decisions under the RMA. The Review found that while the process for debating strongly opposing views has been marred by poor behaviour and reflects past grievances in some cases, the governance of ECan is functional and enables it to meet its statutory obligations. Mostly, the tensions that exist arise from differing political perspectives and not from any fundamental dysfunction.
The Chief Executive, Directors and Chair of ECan consider that the management side has a clear understanding of the respective roles. Those parties also agree that some of the Councillors struggle to stay on the governance side of the line with some seeking information at an inappropriate level of detail. This was confirmed in the councillor interviews. The principle is well understood in theory but for some, particularly first term councillors, the boundary is uncertain and there is a tendency to want to go too far down into the operational detail.
It was universally agreed amongst senior staff that the new Chair has already made a considerable difference in the relationships between senior officers and elected members including:
Several councillors mentioned that undue emphasis was being placed on the CE being Council’s only employee, as if the CE was the only one councillors should talk to. A few Councillors said they were unsure of the degree to which they should be dealing with staff but regardless most had established productive relationships with senior staff related to their committee portfolios.
Staff were generally regarded as highly technically competent and tackling some challenging issues. They were very responsive and supportive with information and at workshops and formal meetings.
The CE has been regarded by some councillors as “the 15th councillor (in that) he has had a tendency to enter the political debate”. This is not regarded well by a number of Councillors. It was conceded that he was doing this less frequently in recent times. He is regarded as a highly competent and respected technocrat who at times has difficulty staying at the more strategic level expected of a CE.
This section makes an assessment of the performance of ECan’s management and decision-making processes across various measures of performance.
The Council has a vision and a purpose statement set out in its Long Term Council Community Plan (LTCCP). It has developed a number of strategies which guide ECan’s activities. In some cases the strategies are jointly developed by a number of parties who are working together to achieve common goals. Two recent and high profile examples are the Canterbury Water Management Strategy (CWMS) and the Greater Christchurch Urban Development Strategy (UDS). At the time of writing, ECan was finalising the Environment Canterbury Strategic Plan 2020. In reviewing ECan’s guiding documents, it appears to us that broadly speaking:
We have reviewed ECan’s general planning and monitoring systems and have concluded the following:
Tri-annual report (4 monthly) – to Directorate and Council
Annual report and summary (annually) – to Directorate and Council
Parent profit and loss (monthly) – to Directorate
Project World performance report (monthly) – to Directorate
CAPEX report (monthly) – to Directorate
There are also reports that are more tailored for frontline management (of both functional teams and projects). Additional planning and reporting occurs at Section and Group level and, in some cases specific operational plans (e.g. annual plan to implement the pest management strategy). There is some variation in how the Directorates approach this, but we took a number of random tests to link activities back to the Council’s agreed work programme and could easily do this in every case. We concluded that the variation in approaches to business planning was healthy and enabled each group to articulate their contribution in a clear and meaningful way.
Planning and monitoring needs to be aligned to an effective performance management system in order to close the loop for accountability purposes. This is covered in the following section.
We conclude that:
It is generally accepted that establishing role clarity and a culture of high performance in any organisation starts at the top. The Directorate came across as a strong and united team of high performers. They value each others’ strengths and complementary skills (openly identified through a strengths based analysis) and the team culture of challenging each other without inflicting damage. We were given a number of examples of ‘border issues’ at lower levels in the organisation being appropriately escalated to Directors and constructively resolved by their joint intervention.
The CE is open in his dealings with the team. The Directors are not afraid of disagreement with the CE and tell it as they see it. Most mentioned that while they rate his strategic leadership very highly, he also has a tendency to the academic and going into too much detail. On the other hand, he is open to their feedback and has responded positively. Several mentioned (and the CE also states) that the CE is happy to stay out of the detail if he is confident that the right thing is happening. Several of the Directors reported that this had galvanised them to (a) ensure that what is happening is in tune with the CE's direction and (b) keep the CE well informed.
The CE’s response if something is off track is to get directly involved. He is aware that he resorted to this frequently in the past. He considers his current executive team to be more capable and his view is that his direct involvement is minimal now. He also states that there was a series of key pieces of work that were major gaps when he arrived and in the absence of the right capability in the organisation at that time, he led them himself.
Each Director has a set of Strategic Issues agreed with the Chief Executive. These are monitored in their regular one on one meetings alongside progress in implementing their group plans. The organisation has recently implemented a new performance management system (Sonar6) which systematically details each individual’s performance expectations (both what and how). The “what” links to the Council’s overall plan and the “how” include a direct link to the organisation’s values. This system, relatively new, is key to embedding the desired performance attributes within the organisation. It is also key (in conjunction with other mechanisms) to enhancing what the organisation calls “line of sight” – the ability for each and every staff member to trace their individual, team, section, group and portfolio contribution to the Council’s overall contribution to community outcomes.
We have also reviewed the Council’s system for setting the Chief Executive’s performance expectations and reviewing performance. A new system was introduced at the time of the most recent performance review. We found it to be clear, comprehensive and rigorous.
ECan’s structure is designed to embed proactive cooperation across the organisation. The way the Portfolio Managers have been set up in the Regional Programmes directory, with a Director assigned to each portfolio, appears to have succeeded in creating an effective matrix without muddying accountability lines. The organisation’s line management is functionally based. Having reviewed the systems to support role clarity and performance management in detail, we conclude the following:
The staff are generally considered by the internal (Councillors and executive) interviewees to be highly committed and professional. It is a “passion driven” organisation – with the advantages and disadvantages that come with that.
ECan has in-depth expertise in environmental sciences, but less so in the planning discipline, as discussed earlier in the Report. This is particularly so in the sciences relating to water resources. This team has expanded significantly in recent years and this is a reflection of the present challenges facing the region around water issues.
Staff attitudes are the area of most concern expressed to the Review Group by those dealing with ECan including TA's, the energy sector, some land holders, public transport operators and to a lesser extent iwi. Many of the stakeholders who participated in this review consider staff to be arrogant. We are also aware of other positive feedback from participants in some of ECan’s collaborative, problem solving approaches to key resource management issues in the region (for example the Urban Development Strategy).
The TA’s told us that that many of the consenting and enforcement staff are very inexperienced, academic in their approach, overzealous and do not understand local issues. This together with historically frequent changes in staff is claimed to cause considerable friction, inconsistency, wasted energy and money even over very minor issues. The TA sector describes ECan as an organisation that is always right, arrogant, overzealous and litigious. The litigious claim is not supported by statistics as noted later in the report.
A paper provided by one of the TA’s also makes it clear that it does not apply this description universally across all ECan functions and states “We would like to record that we have found the environmental science and technical section of the Council to be helpful in providing information for our planning. Where we have dealt directly with these staff they have been knowledgeable and very good at being flexible and working in with our requirements. We have appreciated their efforts in providing an efficient service and quality information.”
The TA’s have also made claims of surprising abatement notices for sometimes minor matters that would have been better dealt with through discussion and collaboration to find a solution. The Review Group wishes to note here that in the cases it has reviewed there has consistently been evidence of advice of non-compliance, sometimes several times, ahead of the issuing of abatement notices.
While there appears to be no physical or equipment inhibitors to working productively, ECan’s staff do have the challenge of the huge territory covered by the region and the logistics of regularly visiting remote sites, constituent TA’s and other stakeholders and the need to balance first hand on-site observation and discussion against time required in the office.
In a labour market that has been generally tight in recent years, ECan has developed an internal training programme to develop the skills of staff. The CE also acted when no water resource management was being taught at a tertiary level in Canterbury. He promoted the establishment of a Water Resource Management Centre which is now being set up jointly by the University of Canterbury and Lincoln University. The CE is chairing the advisory board. Tertiary Education Commission funding has been secured.
The evolution of ECan from July 2003 to its present state is as follows:
We conclude that:
The enabling of quality decision making is highly dependent on receiving robust information in a timely manner. The nature of ECan is such that there are many decisions to be made on often highly complex issues with high levels of scientific and technical detail.
There are mixed views amongst the Directors about the use of workshops. Some find them a valuable means of communicating complex, often technical, information. Others believe there are too many workshops, covering too many topics, at too detailed a level. There is some concern that the workshops are driven by councillors who don’t accept their governance role and want to go too far into the operational detail. “Workshops” may be a misnomer – they appear to be pre-decision information and discussion meetings rather than workshops as such.
Councillor’s feedback has varied as has their interest in the level of detail they are comfortable with prior to decision making. A few newer councillors require a lot of detail to the point where, in the view of some of their colleagues, they are getting into the management realm. A few said that pre-circulation of papers is essential before workshops on complex issues and that this sometimes did not happen (although this was the exception). On the whole, workshops are seen as valuable in enabling councillors to fully understand what are often complicated and highly technical issues.
Workshops and council meetings are well supported by officers able to address technical matters.
For complex issues the process of pre-circulation of papers (with sufficient time to read and note questions), workshop and formal meetings seems to work well.
Agenda papers and associated reports go through the Directorate (a collective term for all the directors) before going on the agenda. The new Chair attends part of the Directorate meeting two weeks before the Council meeting. This occasioned positive comment in a number of staff interviews. Committee and portfolio chairs are involved with the supporting manager in setting agendas and providing briefings. Committee chairs were generally satisfied with the process. Agenda papers are well presented with technical papers attached. For complex and highly technical items the benefit of the preceding workshop assists understanding.
ECan broadly takes into consideration social, economic, cultural and environmental factors under the LGA in two ways:
We were provided with a sample of documents to review specifically in this context. We also assessed other documents in the course of the investigation that were relevant to other aspects of the review. In our view, these confirm that advice to the Council under the auspices of its LGA functions generally takes into consideration economic, social and cultural factors. The degree to which emphasis is given to each of the well-beings varies with the nature of the matters being considered, but for the purposes of the LGA would indicate compliance. Downstream effects of proposed policy are generally clear from the agenda papers examined and able to be taken into account in debating policy proposals.
The nature of ECan’s role in respect of the RMA tends to reinforce a higher emphasis on environmental issues and some councillors and many stakeholders we spoke with argue that insufficient weight is given to the other three well-beings when developing policy. Other councillors argue that environmental sustainability is essential if economic development is to continue over the long term.
It was stated by one councillor that economic issues are not a strong focus for ECan maintaining that it is not an “economic development agency like the TA’s”. Certainly in terms of the Local Government Act, there is no requirement for a regional council to be functionally involved in economic development. That is very different from the requirement to understand, consider and balance economic social and cultural implications of its activities. As discussed in Section 2 of this report, there is a strong perception of a lack of economic perspective at a staff level in RMA (and especially water) decision making. ECan has some economic capability in-house but appears to provide insufficient economic consideration in its RMA decision making in both a planning (including consideration of alternative policies through section 32 analyses) and resource consent context.
The health benefits of the “Clean Heat” programme and social benefits of highly integrated public transport in Christchurch and Timaru are well recognised. Cultural awareness is reinforced through the Maori Advisory Committee of Council, and in the examples of Council agenda papers examined the technical thoroughness of the content is of a high standard and the emphasis was reasonably balanced given the context of the paper. We have noted some areas for improvement in the relationship between Ngāi Tahu and ECan.
Effective consultation, both formal (special consultative process under the LGA) and informal is an essential part of the decision making process. We reviewed the public consultation on the 2009-19 Long Term Council Community Plan, which ran from 28 March 2009 to 29 April 2009:
The Review Group is of the view that the LTCCP consultation process was of a high standard.
From the councillor’s perspective:
From the TA’s perspective the consultation process failed for the original Regional Policy Statement due to ECan not sufficiently taking into account the TA’s perspectives. TA’s are required to give effect to the RPS. It is the view of the TA’s that the RPS is being used as a tool to impose constraints on TA’s and their communities beyond what was ever intended by the RMA. We note that the RMA review found that the consultation for the new RPS appears much more collaborative and is being promoted by ECan as a “document for the Region” rather than ECan’s document.
The last 17 annual Audits undertaken by Audit NZ on behalf of the Office of the Auditor General have been unqualified. Reference to the most recent annual report shows high levels of achievement in most output/outcome areas. The one Community Outcome area with the highest number of targets “not achieved” is Water Quality, Quantity and Ecosystems. The view of the Review Group is that this is the most challenging area of ECan’s current activities and the results do not indicate neglect of the issues but rather reflect the size and complexity of the issues involved.
Under the Local Government Act, the local authorities in a region are required to jointly prepare a Triennial Agreement which sets out the manner in which they will relate to each other in undertaking any activities that will or may affect the functions of other councils.
The Canterbury Triennial Agreement includes an undertaking by all signatories in regard to early notification of policy and proposals, opportunities for involvement, a “no surprises” policy, and joint and collaborative engagement with communities. It is clear that the relationships with the TA’s are strained and have been so for a considerable time. The Review Group has noted tensions between TA’s and ECan going back to the reorganisation of 1989. At the working level a willingness of all the signatories to proactively operate in the spirit of the agreement should have addressed most of the relationship issues. This would not address the political and philosophical aspirations of the constituent councils in regard to regional structure and representation however, and it appears that this factor is impacting at organisational levels, and the worthy principles of involvement, collaboration and “no surprises” have become compromised.
The Review Group considers that the Triennial Agreement should be renegotiated. There are clearly outstanding issues of role clarity and process that need to be addressed. A deeper common understanding and a commitment to move forward in a constructive manner would support more effective collective action for the benefit of the region’s communities. It may be desirable to have an independent facilitator for this process. It is noted that a new agreement will be required following the elections later this year however the Review Group believes a proactive commitment to the relationship by all parties should not wait until then.
The Triennial Agreement also places emphasis on the Mayoral Forum (meeting quarterly) as the primary vehicle for communication and coordination. The forum is to be supported inter alia by meetings of the Chief Executives of the region. While clearly the Mayoral Forum is important for dealing with policy issues that should rise to the political level, communications and coordination between the councils at officer level are critical. It is at that level that the many operational, collaborative and relationship issues should be addressed. There is currently no Chief Executives’ forum and no regular scheduled meetings between ECan’s Chief Executive and each of the TA CE’s. The Review Group see this as a deficiency in the relationship mechanisms.
Relationships at Chief Executive level are not comfortable. The absence of a regularly meeting Chief Executive’s Forum that includes ECan means that there is no clearing house for such sentiments nor the opportunity to build stronger relationships within the peer group.
ECan has allocated responsibilities at Director level for being the key liaison point with specific TA’s. Since late last year joint meetings of the executive teams have been regularly scheduled between ECan and each TA. These are reported by ECan (and the one TA CE who was interviewed individually) to be working well and are being used to address the outstanding issues from the Mayors’ letter to Ministers. We note that the ECan Chief Executive doesn’t generally attend these joint meetings.
The Southern, Northern, Central and Christchurch Area Committees are responsible for District and City Council liaison. It is apparent from discussions with chairs that, while attended by community board members and NGO representatives (e.g. chamber of commerce), the city and district councillors from Christchurch and Timaru seldom, if ever, attend.
Christchurch City’s desire to become a unitary authority and “master of its own (expanded) destiny” continues to detract from the relationship. In relation to transport the city considers itself under represented on the Regional Land Transport Committee LTC considering that its programme dominates the region’s land transport programme. Both of these issues are legislated and outside the control of ECan but still keep surfacing.
There have been a number of references to ECan’s litigious behaviour towards TA’s. This is presumed to relate to the use of abatement notices, a willingness to test matters before the Environment Court and prosecutions. ECan, as a Regional Council, does have enforcement responsibilities set out in the RMA and other legislation. Where a TA is non-compliant and unwilling to remedy the situation ECan is obliged to take action and prosecution may be a necessary resort. Given a responsible and collaborative relationship, prosecution of a TA should be a rare event, as it indeed is. We suspect that the term ‘litigious’ is misleading, and in fact TA’s (and other stakeholders spoken with) mean ’legalistic and rule-bound’.
To provide context the Review Group has noted that for the period 2005/08 NZ local authorities took only three prosecutions of other local authorities. It also notes that of the 174 total prosecutions taken by regional councils, 9.7% of these were taken by ECan. This compares with 9.7% for the Otago Regional Council and 17.4% for the Waikato Regional Council.
The establishment of a new Triennial Agreement that improves role clarity and protocols. We note that the Canterbury Regional Water Authority, once established, will also have a part to play in this.
The formal establishment of a Canterbury Chief Executives’ Forum that parallels the Mayoral Forum.
Undertake a review to consider the optimum arrangement for the management and operation of the public transport fleet within the Region. The Commission would act on that review when completed.