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

 

Date:                      

Time:

Meeting Room:

Venue:

 

Tuesday, 20 May 2014

9.30am

Council Chambers
Auckland Town Hall
301-305 Queen Street
Auckland

 

Regulatory and Bylaws Committee

 

OPEN AGENDA

 

 

 

MEMBERSHIP

 

Chairperson

Calum Penrose

 

Deputy Chairperson

Denise Krum

 

Members

Cr Bill Cashmore

 

 

Cr Linda Cooper, JP

 

 

Cr Alf Filipaina

 

 

Cr Sharon Stewart, QSM

 

 

Member John Tamihere

 

 

Cr John Watson

 

 

Member Glenn Wilcox

 

 

Cr George Wood, CNZM

 

Ex-officio

Mayor Len Brown, JP

 

 

Deputy Mayor Penny Hulse

 

 

(Quorum 5 members)

 

 

 

Rita Bento-Allpress

Democracy Advisor

 

14 May 2014

 

Contact Telephone: (09) 307 7541

Email: rita.bento-allpress@aucklandcouncil.govt.nz

Website: www.aucklandcouncil.govt.nz

 

 


 

TERMS OF REFERENCE

 

 

The Regulatory and Bylaws Committee will be responsible for:

 

·         Considering and making recommendations to the Governing Body regarding the regulatory and bylaw delegations (including  to Local Boards);

·         Regulatory fees and charges in accordance with the funding policy;

·         Recommend bylaws to Governing Body for special consultative procedure;

·         Appointing hearings panels for bylaw matters;

·         Review Local Board and Auckland water organisation proposed bylaws and recommend to Governing Body;

·         Set regulatory policy and controls, and maintain an oversight of regulatory performance;

·         Engaging with local boards on bylaw development and review; and

·         Exercising the Council's powers, duties and discretions under the Sale of Liquor Act 1989 and the Sale and Supply of Alcohol Act 2012

 

Relevant legislation includes but is not limited to:

 

Local Government Act 2002;
Resource Management Act 1991;

Local Government (Auckland Council) Act 2009;

Health Act 1956;

Dog Control Act 1996;

Waste Minimisation Act 2008;

Land Transport Act 1994;

Maritime Transport Act 1994;
Sale of Liquor Act 1989;

Sale and Supply of Alcohol Act 2012; and
All Bylaws.

 

 

 


Regulatory and Bylaws Committee

20 May 2014

 

ITEM   TABLE OF CONTENTS                                                                                        PAGE

1          Apologies                                                                                                                        5

2          Declaration of Interest                                                                                                   5

3          Confirmation of Minutes                                                                                               5

4          Petitions                                                                                                                          5  

5          Public Input                                                                                                                    5

6          Local Board Input                                                                                                          5

7          Extraordinary Business                                                                                                5

8          Notices of Motion                                                                                                          6

9          Lapsing of the Auckland City Council Hazardous Substances Bylaw 2008          7

10        Statement of Proposal for proposed Trading and Events in Public Places Bylaw 2014                                                                                                                                       19

11        Appointments to bylaws hearings panels: outdoor fires, stormwater management, air quality, trading in public places, cemeteries and crematoria, and animal management                                                                                                                                      125  

12        Consideration of Extraordinary Items 

 

 


1          Apologies

 

An apology from Deputy Mayor PA Hulse has 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.

 

3          Confirmation of Minutes

 

That the Regulatory and Bylaws Committee:

a)         confirm the ordinary minutes of its meeting, held on Wednesday, 19 March 2014, including the confidential section, as a true and correct record.

 

 

4          Petitions

 

At the close of the agenda no requests to present petitions had been received.

 

5          Public Input

 

Standing Order 3.21 provides for Public Input.  Applications to speak must be made to the Committee Secretary, in writing, no later than two (2) working days prior to the meeting and must include the subject matter.  The meeting Chairperson has the discretion to decline any application that does not meet the requirements of Standing Orders.  A maximum of thirty (30) minutes is allocated to the period for public input with five (5) minutes speaking time for each speaker.

 

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

 

6          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.

 

7          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.”

 

8          Notices of Motion

 

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

 


Regulatory and Bylaws Committee

20 May 2014

 

Lapsing of the Auckland City Council Hazardous Substances Bylaw 2008

 

File No.: CP2014/04885

 

  

 

Purpose

1.       The purpose of this report is to recommend that the Auckland City Council Hazardous Substances Bylaw 2008 which is now an Auckland Council bylaw, be allowed to lapse, because the provisions of this bylaw are adequately dealt with by a number of pieces of national legislation.

Executive Summary

2.       In 2008 Auckland City Council made a Hazardous Substances Bylaw.  This bylaw:

a.       Requires an application to be made to the council whenever it is intended to install, alter, remove, examine or relocate any tank or pipeline used for storing or transferring of various classes of hazardous substances;

b.       Requires underground storage tanks to be installed in accordance with a 1992 Department of Labour code of practice or in a manner that prevents the contamination of underground water sources;

c.       Requires the storage, use and disposal of any chemical or contaminant to be in such a way that this does not result in a nuisance or risk to public health and safety.  The word contaminant is defined by the bylaw and covers any type of substance that, when discharged to water or land can damage the physical, biological or chemical condition of that water or land. 

3.       Since the bylaw was made there have been a number of legislative changes that have reduced the need for the bylaw.  The council retains its role under section 15 of the Resource Management Act 1991 to manage discharges of contaminants into the environment and it will continue to exercise this function through the proposed Unitary Plan.  However, under the Hazardous Substances and New Organisms Act 1996 the council’s role is only to enforce this act in public places and in places other than work places. 

4.       If the council does not revoke the bylaw prior to 31 October 2015 (i.e. it allows the bylaw to lapse) it will not have to go through the time and expense of revoking the bylaw through the special consultative process of the Local Government Act 2002. 

 

Recommendation

That the Regulatory and Bylaws Committee:

a)      agree that the Auckland City Council Hazardous Substances Bylaw 2008 not be confirmed, amended or revoked so that on 31 October 2015 the bylaw is revoked by section 63 of the Local Government (Auckland Transitional Provisions) Act 2010. 

Discussion

5.         The current Hazardous Substances Bylaw regulates three general areas:

a.       The bylaw requires an application to and approval from council to install, alter, remove, examine or relocate any tank or pipeline used for the storage or transferring of hazardous substances.  This enables the council to monitor sites where hazardous substances are stored and check the contamination of those sites especially when underground tanks or pipes are removed. 

b.       The installation, construction and operation of underground storage tanks holding hazardous substances. 

c.       Standards for the storage of chemicals or contaminants so that any use, disposal or spillage of those chemicals or contaminants does not create a nuisance and there is no risk to public health and safety.  These provisions also allow council officers to take water or soil samples to determine whether or not a site is polluted. 

6.       Staff consider that the bylaw topics are now adequately covered by national legislation which are discussed in detail below.

A.      Approval to install, alter, remove, examine or relocate any tank or pipeline used for storing or transferring of hazardous substances:

7.       This part of the bylaw is dealt with in part by the Resource Management (National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health) Regulations 2011 (the NES). The NES applies to land that has or had an activity or industry on the site that is listed on the Hazardous Activities and Industries List (HAIL) published by the Ministry for the Environment (MfE) and is therefore considered potentially contaminated. If however a detailed site investigation demonstrates that any contaminants in or on the site are below background (naturally occurring) concentrations then the site is not considered contaminated. 

8.       The NES sets permitted activity standards for the removal or replacement of a fuel storage system (storage tanks and ancillary equipment), including the removal or replacement of an underground part of the system and putting back or taking away soil from the site, subject to a number of conditions.  The conditions include that the activity is done in accordance with MfE guidelines, the council is notified on where, when and for how long the activity will be taking place and where any removed soil will be disposed of.  Limits are also set on the amount of soil that can be taken away and a requirement that council will receive results of the investigation done on the site.

9.       The NES also has permitted activity standards for sampling soil, disturbing soil (such as might occur if an underground tank was removed and the hole filled in) and for the subdividing or changing the use of HAIL land.  None of these permitted activities have conditions which require the council to be notified when the activity takes place, but the conditions applied to these activities prevent any danger to the public. Appendix B of the NES includes soil contaminant standards (SCSs) for human health for inorganic and organic compounds for five types of land use scenarios: rural/lifestyle blocks, residential, high-density residential, parks/recreational land and commercial/industrial land. SCSs represent a human health risk threshold above which the effects on human health may be unacceptable over time.

10.     If the owner of a piece of contaminated land or potentially contaminated land (e.g. land on the HAIL list) wishes to subdivide or change the use of a piece of land, it is usually in the best interests of that land owner to decontaminate that land or prove that the land meets the standards of the NES so that the land can be sold.  If however, an owner of a contaminated site or potentially contaminated site does not wish to subdivide or change the use of that site they are still required to meet the proposed Unitary Plan rules for the discharge of contaminates to land and water from that site. 

B.      Requiring underground storage tanks containing hazardous substances to be installed in accordance with a 1992 Department of Labour code of practice or in a manner that prevents the contamination of underground water sources:

11.     These provisions have been superseded by a number of pieces of legislation:

a.       The Hazardous Substances (Emergency Management) Regulations 2001 which came into force in July 2001 require the secondary containment of any liquid hazardous substance that is kept in quantities that exceeds the thresholds outlined in schedule 4 of these regulations.  The regulations apply to both surface containers and below ground containers holding liquids or substances likely to liquefy in a fire. 

b.       Schedule 8 of the Hazardous Substances (Dangerous Goods and Scheduled Toxic Substances)Transfer Notice (2004 and amendments) places obligations and restrictions on stationary container systems (tanks and associated fittings and pipe work) that contain or are intended to contain a hazardous substance that are described in schedules 1 (dangerous goods) and 2 (toxic substances) of the notice.  Part 2 of schedule 8 requires all parts of a stationary container system to be designed, constructed, installed, operated, maintained, tested and repaired so that the system contains any hazardous substance that is put into it without any leakage of that substance when subjected to expected operating temperatures, pressures and stresses, loadings and environmental conditions.

c.       Parts 5 and 6 of schedule 8 specifies standards for both above ground stationary tanks and below ground stationary tanks for hazardous liquids.  Various standards are specified for their design and construction and for the installation and operation of tanks to prevent their damage.  Part 8 has standards for disused below ground tanks.  Part 14 has requirements for pipe work conveying hazardous substances.  Part 17 has standards for the marking of stationary tanks and requirements to have a plan available for inspection which describes the physical position of stationary container systems.  Part 18 includes requirements for the repair, alteration, maintenance and inspection of above ground and below ground tanks to ensure that they continue to meet the standards and codes to which the tank was designed and constructed.  The maintenance requirements for below ground tanks include requirements to undertake inventory control checks and leak-testing. 

d.       The Code of Practice for the Management of Existing Stationary Container Systems up to 60,000 litres Capacity.  This was approved in April 2008 by the Environmental Risk Management Authority as an approved code of practice under the Hazardous Substances and New Organisms Act 1996.  This code of practice applies to stationary tanks used to contain hazardous liquids that were in use at the commencement date of the Transfer Notice and:

•        do not fully meet the requirements of schedule 8 of the Transfer Notice, and/or 

•        do not meet the requirements for secondary containment of the Hazardous Substances (Emergency Management) Regulations 2001.

C.      Requiring the storage, use and disposal of any chemical or contaminant to be in such a way that this does not result in a nuisance or risk to public health and safety:

The word contaminant is defined in the bylaw and covers any type of substance that, when discharged to water or land can damage the physical, biological or chemical condition of that water or land. 

Storage

12.     As noted above the Hazardous Substances (Emergency Management) Regulations 2001 which came into force in July 2001 requires the secondary containment of any liquid hazardous substance that is kept in quantities that exceeds the thresholds outlined in schedule 4 of these regulations.  The regulations apply to both surface containers and below ground containers for liquids or substances likely to liquefy in a fire.  Schedule 9 of the Hazardous Substances (Dangerous Goods and Scheduled Toxic Substances) Transfer Notice which regulates the storage of dangerous goods and toxic substances, also has requirements for secondary containment systems for the storage of class 3.1 (flammable liquids) as does the Code of Practice for the Management of Existing Stationary Container Systems up to 60,000 litres capacity. 


Use

13.     The use of chemicals or contaminants in a way that does not result in a nuisance or risk to public health and safety is controlled by a number or instruments:

•        The Resource Management Act e.g. section 15: discharges of contaminants into the environment.

•        The proposed Auckland Unitary Plan e.g. Chapter H section 4.6: Managing Hazardous Substances and section 4.8: Industrial and Trade Activities.

14.     The chief executive of a local authority is only required to ensure that the provisions of the Hazardous Substances and New Organisms Act 1996 are enforced in public places and in places other than work places.  He/she can however enforce the provisions of the Act in other places for the purpose of enforcing the provisions of the Resource Management Act. 

Disposal

15.     The disposal of chemicals and contaminants is controlled by instruments such as:

The Hazardous Substance (Disposal) Regulations 2001.

16.     These regulations which came into force in July 2001 have disposal requirements for hazardous substances, packages and containers for class 1, 2, 3, 4, 5, 6, 8 and 9 substances.  For each class of substance the regulations describe what are suitable means of treatment for disposal, and what is not.  Note that class 7 is an unallocated class.  These regulations also require any one who manufactures, imports or supplies a hazardous substance to another person in a quantity that exceeds that of schedule 1 of the regulations to provide that person with information on the appropriate method of disposal of that substance in accordance with the regulations. 

The Resource Management (National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health) Regulations 2011.

17.     The provisions/requirements of this standard are discussed above. 

National Environmental Standard for Air Quality

18.     This standard bans the burning of tyres, copper wire and oil in the open air, the burning of bitumen used in road maintenance, the deliberate use of landfill fires and controls the use of school and healthcare incinerators.  The standard also bans the construction of new high temperature hazardous waste incinerators.  

The Auckland Council Trade Waste Bylaw 2013

19.     The Trade Waste Bylaw seeks to protect people and the environment from the adverse effects of harmful substances discharged to the wastewater system.  

The Auckland Council Solid Waste Bylaw 2012

20.     The provisions of this bylaw prevent the disposal of prohibited waste in a public place for collection.  Prohibited waste in this bylaw includes any hazardous waste that contains hazardous substances at sufficient concentrations to exceed the minimum degrees of hazard specified by the Hazardous Substances (Minimum Degree of Hazard) Regulations 2000 or meets the definition for infectious substances included in the Land Transport Rule: Dangerous Goods 1999 and NZ Standard 5433:1999 – Transport of Dangerous Goods on Land.


Consideration

Local Board Views

21.     The view of all local boards that were within the legacy Auckland City Council area where the Auckland City Council Hazardous Substances Bylaw 2008 applies, was sought and they all resolved to recommend to the committee that the Auckland City Council Hazardous Substances Bylaw 2008 not be confirmed, amended or revoked so that on 31 October 2015 the bylaw is revoked by section 63 of the Local Government (Auckland Transitional Provisions) Act 2010. 

Maori Impact Statement

22.     Consultation with Maori occurred during the development of the Proposed Auckland Unitary Plan and resulted in a new set of standards for the management of hazardous substances in Auckland.  Analysis of the current bylaw, national environmental standards and other legislation, relevant iwi management plans and consultation indicates that the revoking of this bylaw will not have any impact on the way that hazardous substances are managed by Auckland Council. 

 

General

23.     The chief executive of a local authority is only required to ensure that the provisions of the Hazardous Substances and New Organisms Act 1996 are enforced in public places and in places other than work places.  Despite the lapsing of this bylaw the council can however enforce the provisions of the Act for the purpose of enforcing the provisions of the Resource Management Act.  Section 15 of the Resource Management Act allows the council to manage discharges of contaminants into the environment and the council will continue to exercise this function through the proposed Auckland Unitary Plan. 

 

24.     The lapsing of this bylaw has been discussed with the relevant operational division.  They support the lapsing of the bylaw and can continue their operational roles without this bylaw.

Implementation Issues

25.     There are no implementation issues if this bylaw is allowed to lapse.

 

Attachments

No.

Title

Page

aView

Auckland City Council Hazardous Substances Bylaw 2008

13

      

Signatories

Authors

Colin Craig - Principal Policy Analyst – Planning Policies and Bylaws

Authorisers

Andrew Simon Pickering - Manager, Planning, Policies and Bylaws

Roger King - Manager Bylaws, Business Development and Support

 


Regulatory and Bylaws Committee

20 May 2014

 







Regulatory and Bylaws Committee

20 May 2014

 

Statement of Proposal for proposed Trading and Events in Public Places Bylaw 2014

 

File No.: CP2014/05040

 

  

 

Purpose

1.       The purpose of this report is for the Regulatory and Bylaws Committee to recommend that the governing body adopt the Statement of Proposal (including a Summary of Information, the proposed trading and events in public places bylaw and a revocation of the legacy trading in public places bylaws) for consultation using the special consultative procedure.

Executive Summary

2.       Following the amalgamation of the seven former territorial authorities and the Auckland Regional Council on 1 November 2010, Auckland Council and Auckland Transport inherited a number of legacy bylaws that address issues relating to trading in public places (also known as ‘street trading’).

3.       The issues relating to trading and events in public places have been identified through a review of the legacy bylaws and pre-consultation with political, internal and external stakeholders. These stakeholders include elected members of the Governing Body (Regulatory and Bylaws Committee workshops), 21 local boards, the Disability Strategic Advisory Group, council departments and units, and a wide range of industry stakeholders including business associations, fundraising and promotional marketing agencies.

4.       The proposed bylaw has been prepared on the basis of those activities considered appropriate for regulation.  Where regulatory approaches have been effective for the legacy councils they have generally been retained in the proposed new bylaw. This means that these approaches have been harmonised and extended across Auckland.  The issues covered in the draft bylaw were common to the legacy trading in public places bylaws.

5.       A regional approach to managing trading activities and events will ensure that standards of convenience, safety, pedestrian and vehicle access and visual amenity are maintained for the well-being and enjoyment of Auckland’s citizens and visitors. The proposed bylaw is intended to complement other approaches, undertaken by the council and other agencies, for managing commercial and not-for-profit activities across the region. 

6.       The review of the bylaws on trading in public places is a joint project between Auckland Council and Auckland Transport. The legal responsibility for making bylaws lies with both organisations. The bylaw deals exclusively with trading activities undertaken in public places that are owned, controlled or managed by the council, including council controlled organisations such as Auckland Transport, Regional Facilities Auckland and the Waterfront Development Agency.

7.       A bylaw has been determined to be the most appropriate mechanism to manage the conduct and activities of any person selling goods or offering commercial services in a public place (which also includes parks and beaches) and will ensure that acceptable standards of convenience, accessibility, safety and visual amenity are maintained for the well-being and enjoyment of Auckland’s citizens and visitors. The bylaw also ensures that trading activities and events do not create a nuisance, impact on public safety, create an obstruction or result in the damage or mis-use of a public place.

 

 

 

 

Recommendation

That the Regulatory and Bylaws Committee:

a)         recommend to the Governing Body of Auckland Council that it resolves (i) to (vii) as follows:

i)          That pursuant to section 155(1) of the Local Government Act 2002, a bylaw is the most appropriate way of addressing the issues relating to the following activities:

   i)   markets and stalls;
   ii)  mobile shops;

  iii)  outdoor dining areas;
  iv)  fundraising;

   v)  offering commercial services;
  vi)  distributing promotional material and / or goods;

  vii) street performances / busking and pavement artists

  viii) events and filming in public places

   ix)  trading activities in parks and reserves.

ii)         That pursuant to section 155(2)(a) of the Local Government Act 2002, the proposed trading and events in public places bylaw (Attachment C) is the most appropriate form of bylaw to address problems related to trading and events in public places identified as in scope;

iii)         That pursuant to section 155(2)(b) and section 155(3) of the Local Government Act 2002, the proposed trading and events in public places bylaw is not inconsistent with the New Zealand Bill of Rights Act 1990;

iv)        That pursuant to section 62 of the Local Government (Auckland Transitional Provisions) Act 2010, the Auckland Council proposes to revoke those clauses of the existing eight legacy bylaws that deal with the issues of trading and events in public places (and replace them with a new region-wide bylaw on trading and events in public places);

v)         That pursuant to sections 145, 146 and 149 of the Local Government Act 2002, the proposed trading and events in public places bylaw is for the purposes of:
i)          regulating trading activities and the conduct of persons selling or offering            goods or services in public places by requiring approval from the council,      Auckland Transport or other council controlled organisation;

ii ) regulating events and filming in roads and other public places by             requiring operators to obtain an approval;

iii) setting general and specific conditions for trading and events in public places to ensure that appropriate standards of health and safety, pedestrian and vehicle access and visual amenity are maintained;

iv) prescribing for fees in respect of any approval obtained for undertaking any trading activity or events in a public place.

vi)        That pursuant to sections 83 and 86 of the Local Government Act 2002, Attachment  A: Statement of Proposal be adopted for public consultation (noting that portions of this Statement of Proposal relate to Auckland Transport and that decisions relating to those portions will be made by Auckland Transport’s board);

vii)       That the Manager, Policies and Bylaws be authorised to make any minor edits or amendments to the Statement of Proposal to correct any identified errors or typographical edits or to reflect decisions made by the Regulatory and Bylaws Committee or the Governing Body.

Discussion

8.       Auckland Council (the council) is empowered under the Local Government Act 2002 to make bylaws to:

·   protect the public from nuisance – s145(a);

·   protect, promote and maintain public health and safety – s145(b);

·   minimise the potential for offensive behaviour in public places – s145(c);

·   regulating trading in public places – s146(a)(iii);

·   manage, regulate or protect from damage, misuse, or loss reserves and recreation grounds (including regional parks) – s146(b)(vi) and s149(b).

 

9.       In addition, Auckland Transport is empowered under the Land Transport Act 1998 to make bylaws that:

·   regulate road related activities, including safety and environmental protection – s22AB.

 

10.     The Committee should note that the Statement of Proposal (Attachment A) is a combined Auckland Council and Auckland Transport proposal however references relating to Auckland Transport are provided for their information only – only the Committee is empowered to make recommendations on the proposed Auckland Council bylaw.

11.     Activities involving trading or events in public places can add to the character of a local area as well as provide a useful service to residents and generate income from visitors. Activities such as markets, outdoor dining, mobile shops and street performers can add considerably to the visual amenity of a public place. Left unregulated these activities give rise to effects and problems in public places depending on the nature, scale and style of the operation and its location.

12.     The proposed bylaw (Attachment C) aims to regulate trading activities and events in public places and define ‘public places’ as those areas owned, managed or controlled by the council or one of its council controlled organisations such as Auckland Transport, Auckland Tourism, Events and Economic Development (ATEED) or the Waterfront Development Agency.

13.     A regional approach to managing trading activities will ensure that acceptable standards of convenience, safety, pedestrian and vehicle access and visual amenity are maintained for the well-being and enjoyment of Auckland’s citizens and visitors. The proposed bylaw is intended to complement other approaches, undertaken by the council and other agencies, for managing commercial and not-for-profit activities across the region. 

14.     Trading in public places encapsulates a range of activities, which involves offering a good or commercial service in exchange for payment, reward or otherwise. These activities have been identified through a review of the legacy bylaws as well as pre-consultation engagement with internal and external stakeholders including surveys with members of the People’s Panel and business associations (Appendix one of Attachment A discusses in more detail the stakeholder engagement undertaken throughout the course of the review and development of the proposed bylaw). 

15.     Activities proposed to be regulated by the draft bylaw include the following:

·   markets and stalls

·   mobile shops

·   outdoor dining

·   offering commercial services

·   fundraising (including soliciting or collection of subscriptions or donations)

·   distribution of promotional material and /or goods

·   street performances and pavement art

·   outdoor display of goods.

 


16.     These trading activities are proposed to be controlled by:

·   Requiring approval for certain forms of trading, including outdoor dining areas, markets and stalls, mobile shops and fundraising.  Approval conditions may relate to the nature of the activity (location, size, and number), payment of fees, occupation charge, hours of operation, duration of permit, rubbish, public liability insurance, and traffic and waste management procedures. Through an approval system the council has the opportunity to charge operators for the occupation of a public place.

 

·   Allowing benign forms of such as outdoor business displays, without requiring an approval provided the activity complies with any specific conditions or standards.

 

17.     Additionally, the proposed bylaw provides the regulatory support for events and filming by requiring organisers to obtain approval under the bylaw. While parks and reserves are covered under the definition of ‘public place’ the bylaw acknowledges that any there is a joint application process for any trading activity in a park (i.e trading application plus landowner approval is required).

18.     The proposed bylaw enables the council to designate areas ,by resolution, where all trading activities or a specified category of trading are prohibited to ensure public safety, prevent nuisance, minimise obstructions or the damage or mis-use of public place.

 

Review of legacy bylaws

 

19.     Following the amalgamation of the seven former territorial authorities and the Auckland Regional Council on 1 November 2010, Auckland Council is required to review all of the legacy bylaws by 31 October 2015. After this time the current bylaws will be revoked pursuant to the Local Government (Auckland Transitional Provisions) Act 2010.

20.     Auckland Council and Auckland Transport inherited eight legacy bylaws that address issues relating to trading in public places including regional parks. These bylaws operated reasonably effectively for the legacy areas.

21.     Only two of the legacy bylaws made a specific reference to events in public places (Auckland City and Manukau City councils), while the remaining bylaws had general clauses referring to ‘assemblies or gatherings’. Five bylaws required organisers to get approval for gatherings, although for some that was only applied if it was likely to impede people or traffic in the proposed location. Controls on filming were contained only in Auckland City and Manukau City councils’ legacy bylaws which included the definition of filming as an event.

22.     There was generally a consistent approach taken by the legacy councils, with most issues covered by all or most of the legacy bylaws. These bylaws were intended to

·   minimise obstruction of footpaths and other public places and the impacts on accessibility

·   minimise the loss of public places which would lead to perceptions of the privatisation of these areas

·   ensure that public places were well maintained and that impacts on visual and environmental amenity were minimised

·   control the impact of the activity on public place, and other users, through the implementation of an approval or permitting regime or compliance with standards.

 


23.     The legacy bylaws were generally consistent in their definition of a public place, noting that it includes every place that is either owned, managed or under the control of the council.  The review has considered whether the proposed bylaw should continue to apply only to areas owned, managed or controlled by the council or its council controlled organisations. While in terms of public perceptions it is often difficult to differentiate between private and council owned public spaces, the review identified that from an compliance and enforcement perspective the proposed bylaw could only apply to council owned areas – the requirement of someone wanting to trade in a private area (such as a Westfield carpark) and requiring them to obtain two levels of permission (from the council and the private landowner) was impractical.

24.     The perceived problems have been identified through a review of these legacy bylaws. This review has considered the approaches used by the former councils, covering both the regulatory approaches in their bylaws and the non-regulatory approaches used to address particular issues. Through this review, staff have recommended whether regulation of trading and events in public places through a bylaw is necessary, or whether the council should rely on alternative regulatory or non-regulatory options.

 

25.     In summary, the options for each trading activity and event are:

·   Option A: Regulate the activity through an Auckland Council and an Auckland Transport region-wide bylaw;

·   Option B: Rely on non-regulatory approaches such as education initiatives and public information strategies;

·   Option C: No role for council - due either to existing legislation or to the fact that the problem is no longer considered significant enough to warrant regulation.

 

A summary of the recommended approach and reason for the recommendation is set out in table 1 below. Appendix two of Attachment A contains a comparison of the issues addressed in the legacy bylaws and what is proposed to be covered in the new region-wide Auckland Council trading and events bylaw.

 


Table 1: summary of the recommended approach and reason for recommendation

 

 

 

 

 

Activities requiring council management

 

Recommended option:

 

Option A: include in a new region-wide bylaw

 

 

 

 

 

Reason for recommendation

 

Markets and stalls

ü

The proposed bylaw enables appropriate controls on markets and stalls are in place while still guaranteeing that this does not affect their operations. Requiring approval ensures that market and stalls operators are aware of the conditions under which they must operate. The approval would set out conditions such as minimum standards of materials used and visibility etc.

Mobile shops

ü

The review of the trading bylaws enables appropriate controls on mobile traders, while maintaining public safety and accessibility and ensuring that this does not affect their operations. Any reference to mobile shops selling food directs operators to comply any food hygiene regulations in addition to any standard mobile shop requirements specified in the trading and events in public places bylaw.

Outdoor dining

ü

The review of the trading bylaws enables appropriate controls and guidelines defining the requirements for outdoor dining. Requiring businesses to obtain approval ensures awareness of the rules and promotes efficient use of the available allocated space.

Fundraising

ü

The council’s enforcement staff confirm that the current bylaws are effective tools for managing fundraising activities and advise that the absence of any bylaw provisions would limit enforcement.  The bylaw would continue to regulate fundraising through reasonable approval conditions.   Requiring fundraising groups to obtain approval is a way to ensure that this activity is being undertaken by legitimate groups in a responsible way. It also allows the council to manage the location and frequency of fundraising activities.

Offering commercial services

ü

The review of the trading bylaws enables appropriate controls on people offering commercial services in public places in order to maintain public safety and accessibility. Requiring most service providers to obtain an approval ensures that traders offering services are aware of the conditions under which they must operate. It will also ensure the appropriate amount of control and provide for the appropriate use of special or vulnerable public places, such as regional parks and residential areas.

Distributing promotional materials or goods

 

 

ü

The current review enables a consistent set of rules and criteria for undertaking promotional activities.  Requiring approval for larger promotional activities would ensure that organisations wanting to undertake promotional activities would be aware of the rules and impacts relating to those activities. Smaller promotional activities (e.g. a single person handing out flyers for a limited period of time) will be guided by the standards and guidelines rather than having to obtain formal approval.  The distribution of religious or not-for-profit organisations cannot be prohibited for reasons covered by the New Zealand Bill of Rights Act. However there are ways to manage this activity by ensuring they do not cause an obstruction or a nuisance in a public place.

Street performances and pavement artists

ü

The review of the trading bylaws and current street performance policy (ACC) enables a set of guidelines for street performance and pavement artists to be developed. This will allow the council to create an environment that encourages vibrant streetscapes and town centres and creative / artistic expression, while establishing a consistent approach and ensuring public safety and accessibility.  Requiring street performers and pavement artists to obtain approval would give the council the ability to control the number and location and to ensure that those undertaking these activities are aware of the conditions imposed on their activities.

Outdoor display of goods

ü

Some of the legacy councils allowed shop displays (without approval) where there was sufficient space on the footpath, subject to standard conditions. This approach would reduce administration costs as licensing staff could concentrate on checking compliance rather than processing applications. The main concern with this approach is the quality of displays and ensuring they leave sufficient clear space on the footpath. This will be managed by ensuring that shop owners are aware of the standard conditions for outdoor displays.

Events and filming in public places

ü

The review of the bylaws on events is designed to align with the council’s Events Policy, as well as any Unitary Plan provisions on temporary activities and the Major Events Strategy. Any bylaw would be consistent with the council’s Events Policy and the Major Events Strategy.  Requiring people to obtain approval for smaller events will in many cases be to ensure that certain public places are not overused or overcrowded. It will also give people the assurance that the space will not be used for other events at the same time. For larger events it will ensure compliance with requirements such as a traffic management plan or waste management and minimisation plan. For small events (e.g. wedding ceremony or school class picnic in a park), booking a space may be considered equivalent to approval.

Trading activities in parks and reserves

ü

Given the special character of parks and reserves, specific mention of this type of public space in the trading and events in public places bylaw would help the public and potential operators understand the specific requirements for these particular public places. Landowner consent for local and sports parks has been delegated to local boards, with officer delegation as discussed above.            

Exemptions from the requirement to obtain approval

ü

Council staff have identified the need to contain provisions within any new bylaw exempting certain activities (such as those that have a low impact or a low probability of causing a problem) from being required to obtain a trading or events permit.  While discussed in detail under ‘Outdoor displays of goods’, this activity is exempted from the requirement to obtain approval however must comply with the conditions of the proposed bylaw.  Some activities may still be required to contact the council to advise of their activities – but for space management purposes rather than formal “approval”.

 

26.     As per the table above, the recommended option for the issues identified is to retain provisions relating to trading and events in public places in a new Auckland Council bylaw and complementary Auckland Transport bylaw. Retaining the legacy bylaws is not an appropriate way to address the issues identified, as they lack regional consistency. Therefore this report recommends that the council revokes the clauses which will be replaced by the proposed bylaw. The proposed region-wide bylaw brings all the trading activities into a single regulatory control.

27.     In determining the most appropriate form of the bylaw, staff have reviewed legacy public places bylaws. Where regulatory approaches have been effective for the legacy councils, they have generally been retained in the proposed new bylaw. This allows these approaches to be harmonised and extended Auckland-wide. The proposed bylaw will continue to provide reasonable controls to protect the public from nuisance, promote public safety and minimise offensive behaviour. The proposed bylaw does not cover any issues not previously included in the legacy bylaws reviewed. The proposed bylaw will continue to support the non-regulatory approaches that have consistently worked well in parts of Auckland.

 

Outcomes sought

 

28.     Auckland Council recognises that, in order to provide a high quality of life to its residents and make it an attractive destination for visitors acceptable standards of convenience, safety, pedestrian and vehicle access and visual amenity must be maintained. The Auckland Plan’s vision is for Auckland to become the world’s most liveable city. Key outcomes relating to trading in public places are “an Auckland of prosperity and opportunity” and “a culturally rich and creative Auckland”. One of the priorities of the plan is to grow a business-friendly and well-functioning city. Activities in public places such as trading, street performance (busking), events and filming can contribute to this while also adding to the character of local business areas, providing services to local residents and income from visitors.


29.     A regional approach to enabling trading and events in public places, with reasonable controls, will ensure that acceptable standards of convenience, accessibility, safety and visual amenity are maintained for the well-being and enjoyment of Auckland’s citizens and visitors. The outcomes sought by the proposed bylaw are:

·   to ensure safe access for pedestrians and other users of public places

·   to maintain a quality environment, heritage and character for Auckland's public places

·   to ensure appropriate and effective regulation of trading activities and events including where necessary, approval

·   to ensure there is an equitable balance in the allocation of space for appropriate trading activities

·   to encourage diversity of trading activities.

 

30.     The outcomes sought for each specific trading activity and event include, but are not limited to:

·   providing for an appropriate level of market and stall activity offering a range of products and services, which contribute to vibrant public places while maintaining public safety and amenity

·   providing for an appropriate level of mobile trading activities and to ensure that they are carried out in a safe manner

·   providing for outdoor dining and drinking activity which:

·     ensures safe access for pedestrians and other legitimate street users

·     maintains a quality street environment, heritage and street character

·   protecting the safety of other users (e.g. smoke-free dining areas, sturdy furniture and barriers). To provide for appropriate levels of fundraising activities in public places and to ensure that they are carried out in a safe manner by legitimate charitable and community organisations

·   providing for the provision of appropriate services in public places, while maintaining public safety and amenity

·   providing for an appropriate level of promotional activities while maintaining public safety and amenity. Promotional activities that are engaging, appropriate to the location, add to the vibrancy of the area and are of benefit to users of the public place would be given preference

·   providing for an appropriate level of street performance activity and pavement art, balancing the need to maintain public safety and accessibility with the benefits of encouraging artistic and cultural endeavours which contribute to a vibrant, liveable city.

·   ensuring appropriate regulation that enables events to take place while protecting public safety and amenity

·   ensuring appropriate regulation that supports the film-friendly aspiration of the Auckland Film Protocol, while protecting public safety and amenity. Waitakere City Council’s district plan provided extensively for the control of filming activities

·   providing for an appropriate level of display of goods outside resident businesses, that maintains a quality street environment and ensures adequate access for pedestrians and other legitimate street users

·   providing for appropriate trading activities in parks and reserves

·   ensuring that desirable activities of limited scale and impact can take place without incurring prohibitive costs or administrative requirements.

 


Revoking legacy bylaws

 

31.     The council and Auckland Transport propose to revoke, either in full or in part, the following bylaws relating to trading and events in public places:

Auckland Regional Council

Parks Bylaw (2007)

Auckland City Council

No. 20 – Public Places Bylaw (2008)

Franklin District Council

Trading in Public Places Bylaw (2007)

Manukau City Council 

Chapter 7- Events and Trading in Parks and Public Places (2008)

North Shore City Council   

Part 3 - Trading in Public Places Bylaw (2007)

Papakura District Council 

Trading in Public Places Bylaw (2008)

Rodney District Council 

Chapter 9 – Trading in Public Places

Waitakere City  Council 

Public Places Bylaw (2010)

 

Consideration

Local Board Views

32.     The views of the local boards were sought through two rounds of local board workshops to discuss the review and, obtain feedback on the Issues and Options paper respectively (refer to Attachment B of this report for a summary of the local boards’ feedback on specific activities). Staff presented at a Local Board Chairs forum and local board members were also encouraged to provide feedback on the People’s Panel survey. The majority of local boards supported the outlined approach - providing regulatory support for the various activities through the trading and events in public places bylaw, requiring approval and charging a fee based on the type of activity.

Māori  Impact Statement

33.     The Auckland Plan’s vision is for Auckland to become the world’s most liveable city. Key outcomes relating to trading in public places are “an Auckland of prosperity and opportunity” and “a culturally rich and creative Auckland. Trading and events can ensure that the Māori heritage of Tāmaki Makaurau is valued and protected. Events such as Matariki are an important part of strengthening cultural identity for Māori. Māori businesses (such as a café specialising in selling Māori cuisine or a mobile shop selling hangi food) are uniquely identifiable, visible and prosperous.

34.     One of the five key directions of the Māori Plan is to develop vibrant communities – a city/region that caters for diverse Māori lifestyles and experience. Participation in trading activities (such as mobile vehicles selling fruit and vegetables) supports the concept of autonomy and self-sufficiency by enabling Māori to use their own resources, contribute to, and be part of the local economy. Encouraging trading activities can also support iwi with developing a sustainable economic base within their own rohe (area). Activities such as cafés with outdoor dining, markets and mobile shops are vital for contributing to local economic growth and providing opportunities for developing the skills base to sustain these activities.

35.     Council staff presented at two hui in 2013 to discuss the trading and events in public places. No issues were identified as having a significant impact on Māori and most of the feedback focused on ensuring that the any bylaw and associated controls would enable participation in trading activities and events and support individuals and communities to develop and sustain both managerial and entrepreneurial capabilities.

General

36.     The Regulatory and Bylaws Committee has the delegated authority to recommend that a bylaw is the most appropriate way of addressing the issues relating to trading and events in public places.  The Committee can also recommend that the proposed Auckland Council bylaw (Attachment A: Appendix two) is the most appropriate form of the bylaw and should be recommended to the Governing Body for formal public consultation via the special consultative procedure.

37.     The attached Statement of Proposal discusses issues covering both Auckland Council and Auckland Transport’s areas of responsibility. The Auckland Transport board has the delegated authority to approve an Auckland Transport bylaw for consultation. Auckland Council will have the ability to comment on the Auckland Transport bylaw during the Special Consultative Procedure process.

38.     The list of issues and the proposed bylaw have been developed through pre-consultation with political, internal and external stakeholders, including elected members of the Governing Body (Regulatory and Bylaws Committee Working Party), all local boards, the Disability Strategic Advisory Group, council departments and units, and a wide range of industry stakeholders. See Attachment A: Appendix one for stakeholders consulted to date.

Implementation Issues

39.     The proposed bylaw has been prepared on the basis of those activities considered appropriate for regulation.  Where regulatory approaches have been effective for the legacy councils they have generally been retained in the proposed new bylaw. This means that these approaches have been harmonised and extended across Auckland.  The issues covered in the draft bylaw were common to the legacy trading in public places bylaws.

40.     There is one trading activity which was contained in Auckland City Council’s legacy bylaw and has been included in the proposed bylaw in recognition of the fact that it is becoming increasingly popular. This is the distribution of promotional material or goods and will mean that legacy areas where this was not controlled through regulation will now be subject to the new bylaw.

41.     Work is underway by Licensing and Compliance Services to implement this proposed bylaw and this will involve the development of an operational procedures policy manual and extensive training of council staff.

 

 

Attachments

No.

Title

Page

aView

Statement of Proposal - Trading and Events in Public Places Bylaw 2014

29

bView

Local Board Feedback

101

cView

Proposed Trading and Events in Public Places Bylaw 2014

105

     

Signatories

Authors

Rebekah Stuart-Wilson - Principal Policy Analyst - Planning, Policies & Bylaws.

Authorisers

Andrew Simon Pickering - Manager, Planning, Policies and Bylaws

Roger King - Manager Bylaws, Business Development and Support

 


Regulatory and Bylaws Committee

20 May 2014

 



































































Regulatory and Bylaws Committee

20 May 2014

 


Regulatory and Bylaws Committee

20 May 2014

 


Regulatory and Bylaws Committee

20 May 2014

 


Regulatory and Bylaws Committee

20 May 2014

 


Regulatory and Bylaws Committee

20 May 2014

 



Regulatory and Bylaws Committee

20 May 2014

 




Regulatory and Bylaws Committee

20 May 2014

 





















Regulatory and Bylaws Committee

20 May 2014

 

Appointments to bylaws hearings panels: outdoor fires, stormwater management, air quality, trading in public places, cemeteries and crematoria, and animal management

 

File No.: CP2014/08995

 

  

 

 

Purpose

1.       To endorse the appointment of hearings panels to hear submissions, deliberate and make recommendations to the governing body of Auckland Council on the review of four proposed bylaws: outdoor fires, stormwater management, air quality, trading in public places.

2.       To appoint hearings panels to hear submissions, deliberate and make recommendations to the governing body of Auckland Council on the review of two proposed bylaws: cemeteries and crematoria, and animal management.

Executive summary

3.       The chairperson of the Regulatory and Bylaws committee was delegated the power to appoint hearings panels for the review of the following bylaws:

Resolution number RBC/2013/9:

·           Outdoor fires

·           Stormwater management

·           Air quality

·           Trading in public places

4.       The chairperson has concluded the appointments and these are now presented to the Regulatory and Bylaws committee for endorsement.

5.       At the Regulatory and Bylaws committee meeting of March 2014, the committee agreed to appoint hearings panels for the review of the following bylaws:

Resolution number RBC/2014/16:

·           Cemeteries and crematoria

·           Animal management

6.       The Regulatory and Bylaws committee is now requested to appoint members to these hearings panels.

 

 


 

Recommendations

That the Regulatory and Bylaws Committee:

a)      endorse the following appointments to the hearing panel to hear submissions, deliberate and make recommendations to the governing body of Auckland Council on the review of the outdoor fires bylaws: Cr R Clow, Cr C Penrose (Chair), Cr S Stewart, and one member of the Independent Māori Statutory Board.

b)      endorse the following appointments to the hearing panel to hear submissions, deliberate and make recommendations to the governing body of Auckland Council on the review of the stormwater management bylaws (including any proposed new bylaw): Cr R Clow, Cr C Penrose (Chair), Cr S Stewart, and one member of the Independent Māori Statutory Board.

c)      endorse the following appointments to the hearing panel to hear submissions, deliberate and make recommendations to the governing body of Auckland Council on the review of air quality issues (including any proposed new bylaw): Cr C Brewer, Cr R Clow, Cr A Filipaina, Cr D Krum (Chair), and one member of the Independent Māori Statutory Board.

d)      appoint the following members to the joint hearings panel with Auckland Transport to hear submissions, deliberate and make recommendations to the governing bodies of both Auckland Council and Auckland Transport on the review of their respective trading and events in public places bylaws (including any proposed new bylaw): Cr Cathy Casey, Cr Denise Krum (Chair), Cr C Penrose, Cr Penny Webster, one member of the Independent Māori Statutory Board, and members to be determined by Auckland Transport.

e)      appoint the following hearing panel to hear submissions, deliberate and make recommendations to the governing body of Auckland Council on the review of the cemeteries and crematoria bylaws (including any proposed new bylaw): Cr C Casey, Cr L Cooper, Cr C Penrose (Chair), Cr G Wood, and one member of the Independent Māori Statutory Board.

f)       appoint the following hearing panel to hear submissions, deliberate and make recommendations to the governing body of Auckland Council on the review of the animal management bylaws (including any proposed new bylaw): Cr B Cashmore (Chair), Cr C Casey, Cr L Cooper, Cr C Penrose, Cr S Stewart, and one member of the Independent Māori Statutory Board.

g)      agree that in the event that any member appointed by the committee under resolutions (a) to (f) is unavailable, the chairperson of the Regulatory and Bylaws Committee be delegated the power to make a replacement appointment.

 

 

Attachments

There are no attachments for this report.    

Signatories

Authors

Andrew Simon Pickering - Manager, Planning, Policies and Bylaws

Authorisers

Roger King - Manager Bylaws, Business Development and Support