Guidance on applying for an enforceable undertaking
This guidance includes information for drinking water suppliers who wish to apply for an enforceable undertaking.
For some drinking water suppliers, it may be difficult to comply with some requirements of the Water Services Act 2021 (the Act). For example, a supply may need significant work, consents or investment to meet the requirements, which may take time to complete or obtain.
An enforceable undertaking allows you to acknowledge areas of actual or possible non-compliance and commit to specific actions designed to assure compliance in the future. It is a legally binding agreement between you and Taumata Arowai. Enforceable undertakings are accepted at the discretion of the Chief Executive or their delegate.
While an enforceable undertaking is in place and after it has been fulfilled, you cannot be prosecuted for the non-compliance (including a behaviour or incident) covered by the enforceable undertaking. If you do not meet the terms of an enforceable undertaking, Taumata Arowai can apply to the High Court for an order directing compliance, an order discharging the undertaking, or a civil pecuniary penalty.
The application process
Contact your local Taumata Arowai team to discuss your interest in applying for an enforceable undertaking.
Log into Hinekōrako and register your interest. You still need to do this step even if one of our team has suggested enforceable undertakings as an option.
We will do an initial assessment to see if you have adequately addressed the relevant matters below. We will consider if an enforceable undertaking is the right tool for you and let you know the outcome. Please note, an enforceable undertaking cannot be made in relation to behaviour which is reckless or for a contamination offence.
Once you receive our initial assessment, you can choose to apply for an enforceable undertaking through Hinekōrako. See what information is required below to support your application.
Generally, we will assess your application within three months. If the application requires extra details or amendments, the timeframe could be longer.
If your application is accepted, your enforceable undertaking will come into effect on an agreed date.
What information is required?
Your application for an enforceable undertaking should include the following. If you do not adequately address these matters your application may not be accepted.
Extent Te Mana o te Wai will be given effect to
You must demonstrate how you will give effect to Te Mana o te Wai in carrying out the enforceable undertaking. The application should:
- Demonstrate how the proposed enforceable undertaking will give effect to Te Mana o te Wai, to the extent that it applies to the areas of identified non-compliance.
- Provide the details of any engagement with iwi, hapū and wider consumer communities that has been carried out.
Ability to meet commitments
You must include a credible implementation plan, with acceptable timeframes to achieve the necessary changes, and a viable financial plan, including:
- Confirmed funding or have a plan to access the funds needed to implement the enforceable undertaking with contingencies for increases.
- Realistic timeframe for completion with contingencies for delays.
- Organisational commitment – for example, signed by the Chief Executive, owner endorsement or Board agreement (whichever is applicable).
- Technical capability of staff or consultant to allow necessary equipment to be acquired, installed, tested, and operated.
While offering an enforceable undertaking is not an admission of guilt, you must acknowledge the actual or possible non-compliance and demonstrate a willingness to improve and correct it. The application should include:
- Details of the actual or possible/alleged non-compliance event or situation.
- The time period in which it occurred and whether it is still occurring.
- Compliance history, including notifications and any consumer advisories.
- The behaviour or event for which the enforceable undertaking is being proposed must constitute a contravention or alleged contravention of the Act, a legislative requirement (regulations, rules, compliance orders or directions), or a drinking water safety plan.
Ability to manage risks in the interim
While outlining how and when you propose to meet your obligations in the long term, you should also indicate how risks to consumers will be managed in the interim. The application should provide for:
- A schedule for monitoring and reporting on progress. This will support us to intervene at the earliest possible opportunity where commitments are not being delivered on.
- Consequential updating of the drinking water safety plan and identification of the resources needed to do this.
- Details of how the proposed actions will ensure that the event or behaviour will not recur in future.
- Assurance that the matters which might constitute non-compliance are being addressed with appropriate speed, given the scale and cost of investment required.
- Details of how affected consumers will be informed about the enforceable undertaking, its purpose and implications for supply of safe and sufficient drinking water.
- The potential consequences for consumers if an enforceable undertaking is granted, taking into account the scale, complexity and risk profile of the particular supply/supplies.
- The nature and consequence of conditions that are proposed as part of the enforceable undertaking, and that the conditions are as easy as possible to monitor and report on.
Better outcomes than minimal compliance with the Act
You should demonstrate why an enforceable undertaking will result in a better outcome than if we were to take enforcement action. An application should include details of:
- How the proposal will achieve results which meet or exceed the legislative requirements.
- How you will support continuous improvement objectives during the period of the enforceable undertaking and beyond this time.
- Any actions that will contribute to uplifting the capability and capacity of the water sector, for example:
- Good practice resources that can be shared with other suppliers
- Investment in new technology
- Investment in staff training or apprenticeships
- Promoting careers in the water services sector
- Improving the resilience of the system.
- Any additional actions that will benefit the wider community or the environment, for example:
- Public education campaigns on water related issues
- Commitments to freshwater or source water improvement.
Other factors we will consider when assessing your application
- The nature and seriousness of the non-compliance.
- Views expressed by members of the relevant community, i.e., consumers, mana whenua, or other community representatives.
- Views of victims if the non-compliance resulted in harm.
- Taumata Arowai statutory operating principles.
- Taumata Arowai Statement of Intent and Statement of Performance Expectations.
- Taumata Arowai Compliance, Monitoring and Enforcement Strategy.
The decision making process
Once you have applied for an enforceable undertaking, we will acknowledge this and let you know how long it may take to consider and decide on your application. Generally, this will be within three months. However, if the application requires extra details or amendments, the timeframe could be longer.
We will contact you if there are areas for improvement before making a decision. You have the option to revise your application or correct any errors before a final decision is made. Once a final decision has been made, we will let you know in writing the decision and the reasons for the decision.
If accepted, the enforceable undertaking will be prepared in the form of an agreement between you and us and published on our website. For transparency purposes, we will publish the entire agreement, including its conditions, monitoring, and reporting provisions. If not accepted, we will not publish the decision on our website.
Meeting the terms and intent of an enforceable undertaking
An enforceable undertaking is a legally binding agreement between you and Taumata Arowai.
While it is in place and after it has been fulfilled, you cannot be prosecuted for the non-compliance (including a behaviour or incident) covered by the enforceable undertaking. However, if you don’t meet the terms of an enforceable undertaking, the Chief Executive of Taumata Arowai can apply to the High Court for an order directing compliance, an order discharging the undertaking or a civil pecuniary penalty. A court order may be accompanied by an order for the reasonable costs of monitoring compliance with the undertaking in the future.
We will monitor enforceable undertakings against the key milestones and reporting schedule outlined in your application. This will help us determine whether an enforceable undertaking is being complied with, and whether the anticipated benefits are being delivered. It is your responsibility to demonstrate you are meeting the terms and intent of the enforceable undertaking.