I hereby give notice that an ordinary meeting of the Hearings Committee will be held on:

 

Date:                      

Time:

Meeting Room:

Venue:

 

Tuesday, 26 November 2013

10.00am

Committee Meeting Room
Civic 15
1 Greys Avenue
Auckland

 

Hearings Committee

 

OPEN AGENDA

 

 

 

MEMBERSHIP

 

Chairperson

Cr Linda Cooper, JP

 

Deputy Chairperson

Cr Penny Webster

 

Members

Cr Anae Arthur Anae

 

 

Cr Chris Darby

 

 

Cr Calum Penrose

 

 

Cr Wayne Walker

 

 

 

 

Ex-officio

Mayor Len Brown, JP

 

 

Cr Penny Hulse

 

 

(Quorum three members)

 

 

 

Mary Binney

Democracy Advisor

 

18 November 2013

 

Contact Telephone: (09) 373 6211

Email: mary.binney@aucklandcouncil.govt.nz

Website: www.aucklandcouncil.govt.nz

 

 


TERMS OF REFERENCE

 

 

The Hearings Committee will have responsibility for:

 

·         Decision making (including through a hearings process) under the Resource Management Act 1991 and related legislation;

·         Hearing and determining objections under the Dog Control Act 1996;

·         Decision making under the Sale and Supply of Alcohol Act 2012

·         Hearing and determining matters regarding drainage and works on private land under the Local Government Act 1974 and Local Government Act 2002.  This delegation cannot be sub-delegated;

·         Hearing and determining matters arising under bylaws, including applications for dispensation from compliance with the requirements of bylaws;

·         Receiving recommendations from officers and appointing independent hearings commissioners to a pool of commissioners who will be available to make decisions on matters as directed by the Hearings Committee;

·         Receiving recommendations from officers and deciding who should make a decision on any particular matter including who should sit as hearings commissioners in any particular hearing;

·         Monitoring the performance of decision makers including responding to complaints made about decision makers;

·         Where decisions are appealed or where the Hearings Committee decides that the Council itself should appeal a decision, directing the conduct of any such appeals; and

·         Adopting a policy or policies and making any necessary sub-delegations relating to any of the above areas of responsibility to provide guidance and transparency to those involved.

 

Not all decisions under the Resource Management Act 1991 and other enactments require a hearing to be held and the term “decision making” is used to encompass a range of decision making processes including through a hearing.  “Decision making” includes, but is not limited to, decisions in relation to applications for resource consent, plan changes, notices of requirement, objections, existing use right certificates and certificates of compliance and also includes all necessary related decision making.

 

In adopting a policy or policies and making any sub-delegations, the Hearings Committee must ensure that it retains oversight of decision making under the Resource Management Act 1991 and that it provides for Councillors to be involved in decision making in appropriate circumstances.

 

For the avoidance of doubt, these delegations confirm the existing delegations (contained in the Chief Executive’s Delegations Register) to hearings commissioners and staff relating to decision making under the RMA and other enactments mentioned below but limits those delegations by requiring them to be exercised as directed by the Hearings Committee.

 

Relevant legislation includes but is not limited to:

 

Resource Management Act 1991;
Building Act 2004;
Local Government Act 2002;
Local Government Act 1974;
Local Government (Auckland Council Act) 2009;
Local Government (Auckland Transitional Provisions) Act 2010;
Dog Control Act 1996;

Fencing of Swimming Pools Act 1987;

Gambling Act 2003;

Sale of Liquor Act 1989;

Sale and Supply of Alcohol Act 2012
Health Act 1956;
Biosecurity Act 1993;
Related Regulations; and
Council Bylaws.

 


Hearings Committee

26 November 2013

 

 

ITEM   TABLE OF CONTENTS                                                                                        PAGE

1          Apologies                                                                                                                        5

2          Declaration of Interest                                                                                                   5

3          Confirmation of Minutes                                                                                               5

4          Local Board Input                                                                                                          5

5          Extraordinary Business                                                                                                5

6          Notices of Motion                                                                                                          6

7          Determination of a request for direct referral to the Environment Court by Eldamos Investments Limited on an application for resource consent at 87 & 101 Lunn Avenue, Mt Wellington, Auckland                                                                                                    7

8          District and Regional Plans Appeal Status Report at 14 November 2013            29

9          Decision Made Under Urgency                                                                                  39  

10        Consideration of Extraordinary Items 

PUBLIC EXCLUDED

11        Procedural Motion to Exclude the Public                                                                 47

C1       New resource consent appeals: Keefe v Auckland Council and Doyle & Smith v Auckland Council (Weona Walkway, Westmere Park to Lemington Reserve); and Hillman White Limited v Auckland Council and Anthony Paice v Auckland Council (269 Rosedale Road, Albany)                                                                                                                          47

C2       Resource Consent Appeals: Status Report 26 November 2013                            47  

 


1          Apologies

 

At the close of the agenda no apologies had been received.

 

 

2          Declaration of Interest

 

Members are reminded of the need to be vigilant to stand aside from decision making when a conflict arises between their role as a member and any private or other external interest they might have.

 

At the close of the agenda no requests for declarations of interest had been received.

 

 

3          Confirmation of Minutes

 

There are no minutes to be confirmed.

 

 

4          Local Board Input

 

Standing Order 3.22 provides for Local Board Input.  The Chairperson (or nominee of that Chairperson) is entitled to speak for up to five (5) minutes during this time.  The Chairperson of the Local Board (or nominee of that Chairperson) shall wherever practical, give two (2) days notice of their wish to speak.  The meeting Chairperson has the discretion to decline any application that does not meet the requirements of Standing Orders.

 

This right is in addition to the right under Standing Order 3.9.14 to speak to matters on the agenda.

 

At the close of the agenda no requests for local board input had been received.

 

 

5          Extraordinary Business

 

Section 46A(7) of the Local Government Official Information and Meetings Act 1987 (as amended) states:

 

“An item that is not on the agenda for a meeting may be dealt with at that meeting if-

 

(a)        The local  authority by resolution so decides; and

 

(b)        The presiding member explains at the meeting, at a time when it is open to the public,-

 

(i)         The reason why the item is not on the agenda; and

 

(ii)        The reason why the discussion of the item cannot be delayed until a subsequent meeting.”

 


 

Section 46A(7A) of the Local Government Official Information and Meetings Act 1987 (as amended) states:

 

“Where an item is not on the agenda for a meeting,-

 

(a)        That item may be discussed at that meeting if-

 

(i)         That item is a minor matter relating to the general business of the local authority; and

 

(ii)        the presiding member explains at the beginning of the meeting, at a time when it is open to the public, that the item will be discussed at the meeting; but

 

(b)        no resolution, decision or recommendation may be made in respect of that item except to refer that item to a subsequent meeting of the local authority for further discussion.”

 

 

6          Notices of Motion

 

At the close of the agenda no requests for notices of motion had been received.

 


Hearings Committee

26 November 2013

 

 

Determination of a request for direct referral to the Environment Court by Eldamos Investments Limited on an application for resource consent at 87 & 101 Lunn Avenue, Mt Wellington, Auckland

 

File No.: CP2013/25733

 

  

Purpose

1.       To advise the Committee and seek a determination on a request that has been received by the Council from Eldamos Investments Limited seeking that their application for resource consent proceed directly to the Environment Court.

Executive Summary

2.       Eldamos Investments Limited has applied for various resource consents to establish large format retail activities (anchored by The Warehouse), smaller shops, cafes, a drive-through restaurant and a fitness centre on a vacant site on the corner of Lunn Avenue, Ngahue Drive and Abbotts Way, Mt Wellington.

3.       The application was publicly notified and 23 submissions have been received. The applicant has requested, under section 87D of the Resource Management Act 1991 (RMA), that the Council directly refer the application to the Environment Court for determination.

4.       Given the potentially contentious nature of the application for direct referral, this matter has been referred to the Committee to make the direct referral decision. 

5.       The two alternatives are set out in the recommendations below.  If Council agrees with the request, it need give no reasons.  If it decides to exercise its discretion to decline the request, it needs to give reasons for doing so.

6.       The Committee are invited to appoint hearing commissioners if the application is not directly referred.

 

Recommendation/s

That the Hearings Committee:

Either

a)      agree, pursuant to section 87E of the Resource Management Act 1991, with the direct referral request by Eldamos Investments Limited in relation to their application for resource consent (R/LUC/2013/3567) to establish retail activities at 87 & 101 Lunn Avenue, Mt Wellington and the matter be referred to the Environment Court for determination.

And

b)      that if the Committee determine in clause (a) above to direct refer the application, recommend to the Environment Court that a “Friend of the Court” (amicus curiae) be appointed to assist submitters navigate the formal court processes.

Or

a)      decline, pursuant to section 87E of the Resource Management Act 1991, the direct referral request by Eldamos Investments Limited in relation to their application for resource consent (R/LUC/2013/3567) to establish retail activities at 87 & 101 Lunn Avenue, Mt Wellington, for the reasons that:

i)       there is no certainty that a decision made by the Council on this application for resource consent will be appealed to the Environment Court;

ii)       many submitters to the application for resource consent are locals and direct referral to the Environment Court may result in members of the community feeling disenfranchised from the local decision making process;

iii)      a Council hearing would provide for many of the Proposed Auckland Unitary Plan provisions to be clarified before the matter reaches the Environment Court on appeal;

iv)     pre-circulation of expert evidence and pre-hearing meetings can occur prior to a Council hearing and therefore assist with an efficient process and narrow issues for the Council decision makers and any subsequent appeal; and

v)      a Council hearing would provide the opportunity for a clear Council position on the matter should an appeal to the Environment Court eventuate.

And

b)      that if the Committee determine in clause (a) above not to direct refer the application, that three independent commissioners be appointed to hear and determine the application for the Council.

 

 

Discussion

7.       The Council is currently processing a publicly notified application for resource consent, which has been lodged by Bentley and Co Limited on behalf of Eldamos Investments Limited, to establish large format retail activities (anchored by The Warehouse), smaller shops, cafes, a drive-through restaurant and a fitness centre on a vacant site on the corner of Lunn Avenue, Ngahue Drive and Abbotts Way, Mt Wellington.

8.       On 4 November 2013 the Council received a letter from the applicant’s legal counsel, refer Attachment A, requesting the application be directly referred to the Environment Court for decision making. The Council must, within 15 working days of such a request, decide whether it agrees with or declines the request.

9.       A copy of the staff recommendation report which sets out details of the application, the consents required and the number and composition of submitters is provided as Attachment B.  Drawings which illustrate the proposal are set out in Attachment C.  A list of submitters is set out in Attachment D

10.     The recommendation in the staff report is, on balance, to decline the request for direct referral for reasons including that this may deter submitters from having their concerns heard.  The Committee may take the view that the appointment of a “Friend” of the Court (amicus curiae) may go some way to addressing this concern.

11.     The ability to seek direct referral of an application for resource consent to the Environment Court was introduced as part of the Resource Management (Simplifying and Streamlining) Amendment Act 2009.  The expectation of these new sections, 87D and 87E, therefore contemplates these application requests, particularly for projects that have a high likelihood of proceeding to the Environment Court on appeal.  The tenant of these sections is that the direct referral process streamlines decision making for large scale and complex applications therefore saving time and costs for both applicants and submitters.

12.     The Council, since the introduction of direct referral, has received few requests and all but one of the requests have been agreed.  The requests have included a number of supermarkets, quarries, a large landfill and the proposed Matiatia marina.  A number of these have been successfully and effectively dealt with by the Environment Court.

13.     The one direct referral request that was declined by the Council related to the Palace Hotel site brothel, where a large number of submitters sought to raise a large number of moral issues outside of the typical range of resource management issues.  Following the Council’s grant of resource consent, there were no appeals and the matter did not proceed to the Environment Court.

14.     The RMA contemplates that either the standard Council hearing process or the direct referral process achieves the sustainable resource management purpose of the Act.  That said, the profile of submitters, the likelihood of being supported by professionals and the importance of technical evidences in determining a resource management outcome are relevant.  It may be that the observational views of lay submitters, particularly those that are very familiar with their local environment, are best pursued via a Council hearing.  Alternatively, any submitter to the application is able to become a section 274 party to the direct referral with a right to express their views via submissions and evidence at the Environment Court.

15.     If direct referral is agreed no reasons are necessary. If Council determines not to direct refer an application, it must provide reasons for this decision and the recommendations provide for this.

Consideration

16.     Within the framework of the Hearings Committee’s Terms of Reference from the Governing Body, the Hearings Committee, at its meeting on Tuesday 21 December 2010, adopted a hearings policy.  In particular, section 4.2 of that policy refers to “Allocation of decision making responsibility between elected members, independent commissioners and staff”.  This includes procedural decisions such as whether or not to notify in addition to substantive decision making.  Section 4.2.2 states that, in deciding who is the most appropriate decision maker, the Hearings Committee will take into account recommendations from staff, the significance of a particular matter and whether it is contentious.

17.     If the application is not directly referred, the Committee will need to appoint hearing commissioners. The Hearings Policy supports that one member may be an elected representative and, if so, practice has been to appoint a local board member from outside the relevant local board area. The Chair should be an independent planning commissioner and it is recommended that one panel member be an urban designer.

18.     In light of the potentially contentious nature of the application it is appropriate for the Hearings Committee, rather than Council officers, to determine whether the application should be directly referred to the Environment Court.

Local Board Views

19.     To date Council staff have not received any comments from the Orakei Local Board during the consideration of this application.

Maori Impact Statement

20.     The applicant has not undertaken any consultation with Tangata Whenua. The Council are processing the application in accordance with the requirements of the RMA and in particular Part 2 of the Act, which includes the relationship of Maori and their culture and traditions with ancestral lands, water, sites, waahi tapu and other taonga as one of the matters of national importance. To date, no issues relevant to Tangata Whenua have been identified during the processing of the application. No submissions were received from Tangata Whenua.

Implementation Issues

21.     The RMA contemplates either a Council hearing process as well as a direct referral process as achieving the resource management purpose of the Act.

 

Attachments

No.

Title

Page

a

Direct referral request

11

b

Staff recommendation report

13

c

Proposal drawings

21

d

Submitter list

27

      

Signatories

Authors

Peter Kensington - Principal Planner, Hearings and Resolutions

Authorisers

Heather Harris - Manager Resource Consents

Penny Pirrit - Regional & Local Planning Manager

 


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Hearings Committee

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District and Regional Plans Appeal Status Report at 14 November 2013

 

File No.: CP2013/26020

 

  

 

Purpose

1.       To provide an update on the current status of outstanding appeals region-wide.

 

Executive Summary

2.       This report provides a summary of current district and regional plans appeals.  Should Councillors have detailed questions concerning specific appeals, it would be helpful if these could be raised with Warren Maclennan (Mobile 021-64659) or email warren.maclennan@aucklandcouncil.govt.nz, prior to the meeting.

 

 

Recommendation/s

That the Hearings Committee:

a)      receive the report.

 

 

 

Discussion

3.       The summary table is attached as Attachment A.

 

Consideration

Local Board Views

4.       Local board views have not been sought.

Maori Impact Statement

5.       The decision requested of the Hearings Committee is to receive this progress report on appeals rather than to decide each appeal.

6.       All of these appeals relate to Plan Changes or Notices of Requirement that are being processed according to the Resource Management Act.  As each appeal is negotiated or settled, a report is prepared for the Committee’s consideration, which includes a Maori Impact Statement covering matters related to each specific matter.

General

7.       There are no further matters requiring consideration.

 

Implementation Issues

8.       There are no implementation issues.

 

 

Attachments

No.

Title

Page

a

Regionwide Appeals Status Report at 14 November 2013

31

     

Signatories

Authors

Warren Maclennan - Manager North West Planning

Authorisers

Penny Pirrit - Regional & Local Planning Manager

 


Hearings Committee

26 November 2013

 

 









Hearings Committee

26 November 2013

 

 

Decision Made Under Urgency

 

File No.: CP2013/25764

 

  

 

Purpose

1.       To inform the Hearings Committee of a decision made under urgency.

Executive Summary

2.       Under Section 2 and 5.1.1 of the Hearings Committee policy and the Terms of Reference, the appointment of commissioners to make the decision on the notification and determination of a resource consent application by Watercare Services Limited for the Auckland wastewater network discharge consent has been made under urgency as at 11 November 2013 and is being reported to the Committee.

 

 

Recommendation/s

That the Hearings Committee:

a)      note the decision made under urgency, as listed in Attachment A to this report.

 

 

Attachments

No.

Title

Page

a

Report of Decision Made Under Urgency

41

     

Signatories

Authors

Mary Binney - Democracy Advisor

Authorisers

Marguerite  Delbet - Manager Democracy Services

Penny Pirrit - Regional & Local Planning Manager

 


Hearings Committee

26 November 2013

 

 





Hearings Committee

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Hearings Committee

26 November 2013

 

 

Exclusion of the Public: Local Government Official Information and Meetings Act 1987

 

That the Hearings Committee:

a)      agree to exclude the public from the following part(s) of the proceedings of this meeting.

The general subject of each matter to be considered while the public is excluded, the reason for passing this resolution in relation to each matter, and the specific grounds under section 48(1) of the Local Government Official Information and Meetings Act 1987 for the passing of this resolution follows.

This resolution is made in reliance on section 48(1)(a) of the Local Government Official Information and Meetings Act 1987 and the particular interest or interests protected by section 6 or section 7 of that Act which would be prejudiced by the holding of the whole or relevant part of the proceedings of the meeting in public, as follows:

 

C1       New resource consent appeals: Keefe v Auckland Council and Doyle & Smith v Auckland Council (Weona Walkway, Wesmtmere Park to Lemington Reserve); and Hillman White Limited v Auckland Council and Anthony Paice v Auckland Council (269 Rosedale Road, Albany)

Reason for passing this resolution in relation to each matter

Particular interest(s) protected (where applicable)

Ground(s) under section 48(1) for the passing of this resolution

The public conduct of the part of the meeting would be likely to result in the disclosure of information for which good reason for withholding exists under section 7.

s7(2)(i) - The withholding of the information is necessary to enable the local authority to carry on, without prejudice or disadvantage, negotiations (including commercial and industrial negotiations).

In particular, the public conduct of this part of the meeting would be likely to result in the disclosure of information which may prejudice the council's position in relation to these appeals..

s48(1)(a)

The public conduct of the part of the meeting would be likely to result in the disclosure of information for which good reason for withholding exists under section 7.

 

C2       Resource Consent Appeals: Status Report 26 November 2013

Reason for passing this resolution in relation to each matter

Particular interest(s) protected (where applicable)

Ground(s) under section 48(1) for the passing of this resolution

The public conduct of the part of the meeting would be likely to result in the disclosure of information for which good reason for withholding exists under section 7.

s7(2)(g) - The withholding of the information is necessary to maintain legal professional privilege.

In particular, to enable the local authority to undertake without prejudice negotiations of appeals that are before the Environment Court..

s48(1)(a)

The public conduct of the part of the meeting would be likely to result in the disclosure of information for which good reason for withholding exists under section 7.