Describing the lack of any power to infringe operators for breaching trade waste bylaws as a “legal loophole” is generous. It’s more a case of ministerial lethargy and regulatory failure — for nearly two decades. https://www.rnz.co.nz/national/programmes/morningreport/audio/2018780959/minister-facing-pressure-to-act-on-contaminant-dumping

The “loophole” arises from the way bylaw offences are dealt with in the Local Government Act 2002. Breaching a bylaw amounts to an offence:

https://www.legislation.govt.nz/act/public/2002/0084/latest/DLM174042.html

The maximum penalty for breaching a bylaw is $20,000 but, in the case of breaching a trade waste bylaw, the max penalty rises to $200,000.

https://www.legislation.govt.nz/act/public/2002/0084/latest/DLM174049.html

There are also some other powers like injunctions etc which can be used for breaches of bylaws.

But the debate is about the power to issue infringement notices — like parking tickets, the power to issue a fixed penalty that can be imposed without resort to court processes (unless the penalty remains unpaid). A pretty typical tool in the local regulatory environment.

Understandably, the Local Government Act contemplates infringement offences for breaching bylaws.

https://www.legislation.govt.nz/act/public/2002/0084/latest/DLM174056.html

But an infringement offence against a bylaw must first be designated by regulation, specifying the relevant bylaw and prescribing the fixed penalty.

https://www.legislation.govt.nz/act/public/2002/0084/latest/DLM174051.html

The regulation-making power to so specify is relatively simple.

https://www.legislation.govt.nz/act/public/2002/0084/latest/DLM174083.html

The designation requirement presumably comes from likely pluralism of local authority bylaws — bylaws rightly vary from district-to-district. Only some beaches are suitable for the infringement process and, then, a judgement needs to be made about the appropriate fixed penalty.

Over the last 19 years, a handful of bylaw breaches have been prescribed as infringement offences - relating to alcohol bans and harbour navigation/safety.

(Infringements for alcohol band are slightly different as they are already designated as infringement offences in the Act but the fixed penalty is prescribed by regulation.)

So, breaches of trade waste bylaws are not yet prescribed as infringement offences - but could be.

How hard is it? Not very. A regulation could be promulgated pretty swiftly. All that would be needed would be a list of all the trade waste bylaws from each local authority. That’s not hard as local authorities previously had to notify the Min of Health when making such bylaws.

And the Min of Local Govt would need to determine the appropriate fixed penalty for breach.

Pretty straightforward to close this loophole — if the govt was serious about this, they could do it within a month or so.

Whether ad hoc infringement specification is the best approach is another question — there are other ways such as universal specification like for alcohol bans etc. But that might require legislative amendment and would take more time.

Anyways, great work from @AnushaBradley for highlighting the issue. Let’s hope @NanaiaMahuta plugs the gap quickly — it need not wait for the three waters review.