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

 

Date:                      

Time:

Meeting Room:

Venue:

 

Thursday, 9 February 2017

9.30am

Room 1, Level 26
135 Albert St
Auckland

 

Regulatory Committee

 

OPEN AGENDA

 

 

MEMBERSHIP

 

Chairperson

Cr Linda Cooper, JP

 

Deputy Chairperson

Cr Wayne Walker

 

Members

Cr Fa’anana Efeso Collins

 

 

Cr Richard Hills

 

 

Cr Daniel Newman, JP

 

 

Cr Dick Quax

 

 

Cr Sharon Stewart, QSM

 

 

IMSB Member David Taipari

 

 

Cr John Watson

 

 

IMSB Member Glenn Wilcox

 

Ex-officio

Mayor Hon Phil Goff, JP

 

 

Deputy Mayor Bill Cashmore

 

 

(Quorum 5 members)

 

 

 

Tam White

Senior Governance Advisor

 

3 February 2017

 

Contact Telephone: (09) 890 8156

Email: tam.white@aucklandcouncil.govt.nz

Website: www.aucklandcouncil.govt.nz

 

 


 


 

TERMS OF REFERENCE

 

Responsibilities

 

The committee is responsible for regulatory hearings (required by relevant legislation) on behalf of the council.   The committee is responsible for appointing independent commissioners to carry out the council’s functions or delegating the appointment power (as set out in the committee’s policy).  The committee is responsible for regulatory policy and bylaws.  Where the committee’s powers are recommendatory, the committee or the appointee will provide recommendations to the relevant decision-maker.

 

 

The committee’s key responsibilities include:

 

·    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 cannot be sub-delegated)

·    hearing and determining matters arising under 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 Regulatory 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 regulatory decision-making

·    where decisions are appealed or where the committee decides that the council itself should appeal a decision, directing the conduct of any such appeals

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

·    regulatory fees and charges

·    recommend bylaws to Governing Body for consultation and adoption

·    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, including performing the delegations made by the Governing Body to the former Regulatory and Bylaws Committee, under resolution GB/2012/157 in relation to dogs and GB/2014/121 in relation to alcohol.

·    engage with local boards on bylaw development and review

·    adopting or amending 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 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 Regulatory Committee.

Relevant legislation includes but is not limited to:

 

All Bylaws

Biosecurity Act 1993
Building Act 2004
Dog Control Act 1996
Fencing of Swimming Pools Act 1987
Gambling Act 2003;Land Transport Act 1998

Health Act 1956
Local Government Act 1974
Local Government Act 2002
Local Government (Auckland Council Act) 2009
Resource Management Act 1991
Sale and Supply of Alcohol Act 2012
Waste Minimisation Act 2008

Maritime Transport Act 1994
Related Regulations

Powers

(i)      All powers necessary to perform the committee’s responsibilities.

Except:

(a)   powers that the Governing Body cannot delegate or has retained to itself (section 2)

(b)   where the committee’s responsibility is limited to making a recommendation only.

(ii)     Power to establish subcommittees.

 

 

 

 

 

 

 

 

 

Exclusion of the public – who needs to leave the meeting

 

Members of the public

 

All members of the public must leave the meeting when the public are excluded unless a resolution is passed permitting a person to remain because their knowledge will assist the meeting.

 

Those who are not members of the public

 

General principles

 

·           Access to confidential information is managed on a “need to know” basis where access to the information is required in order for a person to perform their role.

·           Those who are not members of the meeting (see list below) must leave unless it is necessary for them to remain and hear the debate in order to perform their role.

·           Those who need to be present for one confidential item can remain only for that item and must leave the room for any other confidential items.

·           In any case of doubt, the ruling of the chairperson is final.

 

Members of the meeting

 

·           The members of the meeting remain (all Governing Body members if the meeting is a Governing Body meeting; all members of the committee if the meeting is a committee meeting).

·           However, standing orders require that a councillor who has a pecuniary conflict of interest leave the room.

·           All councillors have the right to attend any meeting of a committee and councillors who are not members of a committee may remain, subject to any limitations in standing orders.

 

Independent Māori Statutory Board

 

·           Members of the Independent Māori Statutory Board who are appointed members of the committee remain.

·           Independent Māori Statutory Board members and staff remain if this is necessary in order for them to perform their role.

 

Staff

 

·           All staff supporting the meeting (administrative, senior management) remain.

·           Other staff who need to because of their role may remain.

 

Local Board members

 

·           Local Board members who need to hear the matter being discussed in order to perform their role may remain.  This will usually be if the matter affects, or is relevant to, a particular Local Board area.

 

Council Controlled Organisations

 

·           Representatives of a Council Controlled Organisation can remain only if required to for discussion of a matter relevant to the Council Controlled Organisation.

 

 


Regulatory Committee

09 February 2017

 

ITEM   TABLE OF CONTENTS                                                                                        PAGE

1          Apologies                                                                                                                        9

2          Declaration of Interest                                                                                                   9

3          Confirmation of Minutes                                                                                               9

4          Petitions                                                                                                                          9

4.1     Save Te Arai - Aaron McConchie                                                                       9  

5          Public Input                                                                                                                  10

5.1     Request for Direct Referral by Ambury Properties Limited - 72 Tidal Road, Mangere                                                                                                                               10

6          Local Board Input                                                                                                        10

7          Extraordinary Business                                                                                              10

8          Notices of Motion                                                                                                        11

9          Request for Direct Referral by Ambury Properties Limited - 72 Tidal Road, Mangere                                                                                                                                       13

10        Request to Appoint Independent Hearing Commisioners for the Northern Interceptor Phase 3-6 Hearing                                                                                                        87

11        Appointment of a Commissioner to consider submissions made pursuant to s.24 of the Reserves Act 1977                                                                                                       93

12        Statement of Proposal: Draft Air Quality Bylaw for Indoor Domestic Fires        97

13        Update on regulatory policy and bylaws work programme                                 167

14        Regional Wide Resource Consent Appeals Report at 9 February 2017             175

15        Noting the urgent decisions of 18 January 2017 : Surjit Juneja v Auckland Council - 89 Kinross Street, Blockhouse Bay (ENV-2016-AKL-000280)  and Metlifecare Limited v Auckland Council - 65 Hibiscus Coast Highway, Silverdale (ENV-2016-AKL-000282)                                                                                                                                         185  

16        Consideration of Extraordinary Items 

PUBLIC EXCLUDED

17        Procedural Motion to Exclude the Public                                                               187

C1       Local Alcohol Policy update                                                                                     187

C2       New Resource Consent Appeal - Kauri Bay Farm Limited v Auckland Council: 777 Clevedon Kawakawa Road, Clevedon                                                                    187

C3       New Resource Consent Appeals: Aotea Station to North Auckland Line Section of the City Rail Link:
Qambi Properties limited v Auckland Council
William Dacre McKenzie v Auckland Council                                                       
188

C4       New Resource Consent Appeal: Charles Wedd v Auckland Council - 782 Haruru Road, Wainui                                                                                                                         188  

 


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.

 

3          Confirmation of Minutes

 

That the Regulatory Committee:

a)         confirm the ordinary minutes of its meeting, held on Thursday, 1 December 2016, including the confidential section, as a true and correct record.

 

 

4          Petitions

 

4.1       Save Te Arai - Aaron McConchie

Purpose

1.       Aaron McConchie, representing Save Te Arai, will present a petition. The petition was received by email as follows:

The petition currently has over 6100 signatures.

Request of the Petition

i.    Auckland Council immediately revoke the subdivision consent relating to the creation of lots 12-20 from lot 400 of the DP 483489 (SLC-65973 and REG-66297). We would also like it noted that Lot 20 completely crosses the existing easement and its positioning is the main cause of for this petition.

ii.    The council to vest the current Pacific Road (when deposited in DP 483489 on 18/12/2015) into a public road on lot 400 and include the pre-existing carpark located on council land (lot 301) in this vestment.

iii.   After the road is public the developers would be welcome to re-submit for the subdivision and scheme for ALL FUTURE development in regards to access roads (both public and private), subdivisions, location of the balance of house lots and their boundaries. We request that this application and all future consent applications relating to the development of North and South Te Arai with the developer or any subsequent owner be subject to FULL PUBLIC NOTIFICATION.

2.       As of Friday 3 February 2017 no signatures accompany the petition.

 

Recommendation/s

That the Regulatory Committee:

a)      receive the petition from Save Te Arai and thank Aaron McConchie for his attendance.

 

 

 

5          Public Input

 

Standing Order 7.7 provides for Public Input.  Applications to speak must be made to the Democracy Advisor, in writing, no later than one (1) clear working day 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.

 

5.1       Request for Direct Referral by Ambury Properties Limited - 72 Tidal Road, Mangere

Purpose

1.       Ms Helen Andrews of Berry Simons Environmental Law on behalf of the Ambury Properties Limited wishes to address the committee in support of the Ambury’s proposal regarding  72 Tidal Road, Mangere – Request for direct referral under section 87D of the Resource Management Act 1991.

2.       Refer to Item 11 of the agenda.

 

Recommendation/s

That the Regulatory Committee:

a)      receive Ms Helen Andrews presentation in support of the Ambury’s proposal regarding  72 Tidal Road, Mangere – Request for direct referral under section 87D of the Resource Management Act 1991 and thank Ms Andrews for her attendance.

 

 

 

6          Local Board Input

 

Standing Order 6.2 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 one (1) day’s 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 6.1 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 Committee

09 February 2017

 

Request for Direct Referral by Ambury Properties Limited - 72 Tidal Road, Mangere

 

File No.: CP2017/00350

 

Purpose

1.       To advise the Regulatory Committee of a request for direct referral to the Environment Court of the resource consent applications lodged by Ambury Properties Limited and to seek a determination on whether or not to agree to the request.

Executive summary

2.       Ambury Properties Limited has lodged resource consent applications for a bed and foam manufacturing facility (the facility) which would use and store hazardous substances, and discharge contaminants into the air at 72 Tidal Road, Mangere.

3.       The applicant has requested that the applications be publicly notified. Notification is yet to occur as the applications are currently on hold awaiting a response to further information requested under section 92 of the Resource Management Act 1991 (the RMA).

4.       The applicant has also requested under s87D of the RMA that the Council agree to the applications being directly referred to and determined by the Environment Court in accordance with s87E of the RMA.

5.       Staff recommend that the Council rejects the request for direct referral to the Environment Court.

Recommendation/s

That the Regulatory Committee:

a)      reject the request by Ambury Properties Limited for direct referral of the application to the Environment Court pursuant to section 87E of the Resource Management Act 1991 for the following reasons:

i)        the resource consent is predominantly a local issue, with submitters likely to be from the local Mangere area.

ii)       those submitters will be able to participate in a decision-making process at a Council hearing on this local project and with a Manukau venue for the hearing.

iii)      if the submitters are lay people, they will likely be unfamiliar with the Environment Court process, and will be required to become s.274 parties to participate in this more formal process, including possible cross-examination.

iv)      the determination of the application is dependent upon a mix of both technical expert evidence and non-technical evaluative assessment that is suitably heard at first instance at Council level;

v)      there is insufficient indication of a Council decision being appealed to the Environment Court, either by the applicant or any potential submitters given the nature of feedback received through pre-lodgement public consultation process; and

vi)      if the decision made by the Council is appealed, the Council hearing process would have led to a refinement of the issues to then allow for a more focused and efficient Environment Court process such as mediation and caucusing that may avoid the need for hearing.

 

Comments

6.       Sections 87C to 87I were inserted into the RMA by the Resource Management (Simplifying and Streamlining) Amendment Act 2009 and provide an alternate process and streamlined decision-making process for notified applications.

7.       Section 87D of the RMA allows an applicant to make a request to Council for a resource consent application to be determined by the Court, bypassing the Council hearing stage.

8.       Section 87E of the RMA sets out how a request under section 87D is to be handled by the consent authority being the Council (refer Attachment B).

9.       In summary, Council must make a decision on the direct referral by either:

(a)     Agreeing to direct referral of the application to the Court where the applicant, Council and all submitters will be heard. The Court will then make the final decision relating to the proposal; or

(b)     Declining to refer the application to the Court and the decision is therefore made by the Council (in the first instance). The applicant can then object to this decision under the provisions of section 357A(1)(e) of the RMA.

10.     The 15 working day timeframe under Section 87E(6) within which to make a decision on the request has been extended by 5 working days to 9 February 2017 pursuant to s37A(4)(b)(ii) of the RMA .

11.     The RMA does not provide any criteria for determining whether or not to agree to a direct referral. However, matters for consideration based on previous cases where direct referral has been sought are discussed within this report.

The applications

12.     The applications prepared for Ambury Properties Limited propose to construct a bed and foam manufacturing facility at 72 Tidal Road, Mangere (refer Attachments C and D). The operation of which will be undertaken by the New Zealand Comfort Group Limited (the NZCGL). The establishment of this facility will assist NZCGL improve its economic yield as both its existing facilities in Otahuhu and Avondale are operating beyond their respective capacities.

13.     The intended development will use and store hazardous substances, and discharge contaminants into the air which comprises of a building of approximately 53,000m2 gross floor area that consists of a factory, foam plant, manufacturing base, warehouse storage, staff amenities, trade showroom and offices.

14.     Infrastructure connections and measures for water supply, fire protection, air quality controls, wastewater, and stormwater management, treatment and drainage are also proposed. Along with these there will be five vehicle crossings, internal carriageways, four main loading / delivery areas, 337 car parking spaces and 12 bicycle spaces.

15.     Comprehensive landscaping along the perimeter of the site is also proposed. This includes a natural vegetation buffer along the western riparian margin, a 4 metre wide landscape strip along the front yard and a 5 metre wide landscape strip along the southern boundary. Mitigation planting is proposed within the site, in the car park, and in the area west of the office and dispatch building as well as in the south-eastern corner.

16.     Three wall mounted signs on the northern and western elevations of 10m in length and 3.6m in height, a roof sign and four (three 3m and one 4m) high illuminated sign pillars next to the vehicle crossings are proposed. A 2m high vertical rail fence along the road frontage, and 2.4m high galvanised post and wire mesh with barbed wire along the remaining boundaries.

17.     Site security measures include access controls such as gates and gate houses, alarm systems and illumination – LED lighting poles in parking areas and along Tidal Road.

18.     The facility will staff a maximum of 350 people and operate 24 hours, Monday to Friday for the manufacturing component, 8am to 6pm for the officer/showroom and outside operational hours for security monitoring.

19.     The application overall is a discretionary activity under the AUP (OP). 

20.     The application was received on 10 January 2017. A further information request under section 92 of the RMA was made on 26 January 2017 and the applications were put on hold. At the time of writing this report no response to the request for further information had been received. Once all matters of the request are satisfied, these applications will be publically notified.

Background to the applications

21.     The subject site is zoned Business Light Industry in the AUP (OP). This zoning had been secured through the development of the Puhinui Structure Plan including public and stakeholder participation within this process. A submission to the notified version of the Proposed Auckland Unitary Plan by the New Zealand Comfort Group Limited (NZCGL) also supported this zone change.

22.     There have been four packages of consent applications underpinning the subject proposal, and those include:

·    Package 1, Stage 1 enabling works – approved.

·    Package 2, Stage 2 enabling and stream works – currently being processed.

·    Package 3, Tree removals within an outstanding natural feature – currently being processed.

·    Package 4, Main facility – being processed.

23.     Package 1 works were approved for earthworks and remediation of soil contamination. This Package is referenced 49765, P49765 & 49771.

24.     Following approval of Package 1, Package 2 applications were submitted for further earthworks, stream works, and infrastructure and vegetation restoration. These applications are currently on hold and are referenced 51959, P51967 & P51968.

25.     An application to fell a row of shelter belt trees along the south-western boundary within an outstanding natural feature (being the Crater Hill) was received. This is identified as Package 3, is also on hold and referenced 52104.

Request for Direct Referral

26.     On 22 December 2016, the applicant’s solicitor requested that the subject applications by Ambury Properties Limited be referred to the Court for determination under s87D of the RMA (refer Attachment B). The request for direct referral was received within the statutory timeframes set out under section 87D(2)(b) of the RMA.

27.     The reasons for the request by the applicant are as follows:

·   “The project is very substantial with significant economic benefits upon completion, but with significant economic downsides associated with delay. Direct referral…[will] enable a more rapid determination of the applications than if a council consent decision is the subject of appeal…[and will] eliminate the possibility of Environment Court appeals…”

·   “The direct referral will benefit Ambury Properties Limited / NZCGL, its employees and the Auckland economy…”

·   “The project is very large in scale and involves a broad range of resource management issues. Close evaluation of a large amount of technical expert evidence under direct referral will enable this evidence to be efficiently and effectively managed via the Environment Court mediation / dispute resolution and caucusing and tested via cross-examination in a more efficient manner…”

·   “The opportunity for substantive council input and the quality of that input would not be compromised by the direct referral to the Environment Court.

·   “There will be no adverse effects on submitter participation by the use of the direct referral process. Submitters are likely to derive benefit from Court processes in relation to complex air and risk related issues.”

Assessment of the Request

28.     A basic tenet of this section of the Act is that the direct referral process streamlines decision making for large scale and /or complex applications that are likely to come before the Environment Court on appeal, saving time and costs for both applicants and submitters.

29.     In determining whether to agree with the request by the applicant for direct referral in this instance, matters which the Committee may wish to consider include:

·      the reasons that the applicant has provided in making the application, including likelihood of appeal, and volume of expert evidence as set out in paragraph 27  above.;

·      whether the consent would be required to go through a hearing process and may subsequently be appealed;

·      whether there are procedural or technical advantages in direct referral;

·      what effects there may be as a result of the referral on Council or submitters; and

·      whether costs and timeframes will be reduced by direct referral.

30.     The reasons provided by the applicant for seeking direct referral are outlined above and set out in their letter of request at Attachment B.  Beyond those reasons the RMA contains no criteria or other matters to be considered in making a decision under section 87E.

31.     The Council has not set any policy framework for its own consideration of direct referral requests but has considered a small number of other requests in recent years.  Matters raised in those requests along with those of this referral are canvassed below. They have stated that potential for appeal to the Court exists, and have shown that the role and importance of technical evidence in determining the consents are relevant.

32.     Council staff generally agree with the applicant’s reasons for their request, however believe there is lack of evidence to indicate appeals are probable given the findings outlined in the application materials for the pre-lodgement public consultation.  The notification process is yet to commence and thus staff do not agree with providing a decision on the direct referral request based on the information to hand and recommend that the request be refused.

33.     If this request is refused, there is nothing in the Act to prevent the applicant from making a further request for direct referral once the submission period closes if they still wish to pursue that course of action and the number or content of the submissions appear to support their assertion regarding the likelihood of appeal.

Likelihood of Appeal

34.     The public notification of the applications is yet to occur with outstanding further information matters requested under section 92 of the RMA. The further information matters are necessary to allow a full assessment and understanding of the effects associated with the proposal, and for the application to be fully notified.

35.     Given the uncertainty relating to potential submissions and their content, and the lack of evidence which indicate likely appeals to the Council’s decision on the proposal, there is nothing to suggest that the applications will proceed to the Court.

Procedural or Technical Advantages of Direct Referral

36.     The direct referral process would avoid the duplication of process whereby there would be first a Council hearing, then a hearing by the Court. The Court’s assisted mediation and processes can be advantageous in dealing with issues of complexity and contention in relation to the proposal.

37.     The complexity of the application may bring forward competing specialist evidence that will have a strong bearing on the decision to be made, particularly with regards to air quality and hazardous substances matters. The Court’s expert caucusing processes can be better suited to narrowing the range of matters that are in contention prior to a Court hearing than those of a council hearing process.

38.     However, the requirement in s103B of the Act for technical evidence to be pre-circulated prior to a council hearing has resulted in a more thorough testing of technical evidence and overall a more efficient hearing process. Likewise the opportunity for a pre-hearing meeting, if the applicant chooses, improves the understanding of the application by submitters and efficiency of the council hearing. 

39.     With regards to previous applications where Council has agreed to the request for direct referral, the direct referral process does not appear to have resulted in a more timely determination. Having a first instance Council hearing can narrow the issues in contention making for a timely and cost-efficient Court process if the decision were to be appealed. In these situations most appeals are resolved by consent between the parties rather than being reheard by the Court. The reality of direct referral avoiding a two hearing process is not one borne out by experience.   

Implications for Submitters and Council

40.     Submitters will have an opportunity to become involved in the Court process by lodging an application to become a ‘section 274 party’ or party to the Court proceedings. 

41.     Despite the best efforts of the Court, submitters can find Court proceedings a more daunting prospect than Council hearings and given that the submitters will likely be located in Mangere, having to travel in to the Environment Court for all mediations and meetings may prove problematic for submitters to be actively involved.

42.     Generally, the observational views of lay submitters, particularly those familiar with their local environment, are best pursued via a Council hearing. However, the history of the zone change through the development of the Puhinui Structure Plan and the Auckland Unitary Plan demonstrate extensive community involvement through the entirety of development of these plans including active participation at the appeal stage.

43.     This indicates that submitters may not be deterred by the cost and formality of the Court process.

44.     Where there is no “first instance” hearing at Council level, Council’s position at a Court hearing is a bit ambiguous. As there is no Council decision and position to defend the Council becomes reliant on its planner and experts in forming its position supported by legal submission.  The submitters also do not have a Council decision to support or oppose and therefore more may get involved at the Environment Court, to defend a particular position. A direct referral can result in extensive cross-examination by multiple parties with a far longer and more expensive hearing to allow for participation by all affected parties.

45.     There should be no implications for council in regards to costs. Experience to date shows that the Court will expect the applicant to pay for the typically more extensive processing and legal oversight with council’s cost application. Such can be challenged and not fully certain. 

Process from Here

46.     Should the Council accept the direct referral request from the applicant and enter into the required process, the applicant must still decide after receipt of a Council report whether to proceed to the Court. Should the applicant determine not to do so, the application would fall back to the Council for determination.

47.     Should the Council accept the officer recommendation to reject the direct referral request from the applicant, the applicant will be able to object and could make a further request at a later date, after the submission period closes.

Consideration

Local board views and implications

48.     The Mangere-Otahuhu Local Board relationship manager (Carol McKenzie-Rex) was notified of the application on 25 January 2017. At the time of writing this report, no formal comments from the Mangere-Otahuhu Local Board have been received.

Māori impact statement

49.     Prior to lodging the resource consent applications for this site, the applicant undertook consultation with mana whenua groups who have an interest in this area. Consultation with Te Akitai Waiohua, Ngati Te Ata and Ngati Tamaoho has continued thereafter and throughout the earlier packages of consents.

50.     The applicant has also entered into a memorandum of understanding with Te Akitai Waiohua to formalise their ongoing relationship and engagement.

51.     As part of the resource consent process, council notified all mana whenua groups of these applications who have an interest in the Mangere-Otahuhu Local Board area. The groups included:

·      Te Rūnanga o Ngāti Whātua

·      Ngāti Whātua o Ōrākei

·      Ngāi Tai Ki Tāmaki

·      Te Kawerau a Maki

·      Ngāti Tamaoho

·      Te Akitai Waiohua

·      Te Ahiwaru Waiohua

·      Ngāti Te Ata Waiohua

·      Ngāti Paoa

·      Ngāti Maru

·      Ngāti Whanaunga

·      Ngāti Tamaterā

·      Waikato-Tainui

52.     At the time of writing, the following responses had been received:

·    Te Rūnanga o Ngāti Whātua defer interest to Te Akitai Waiohua.

·    Ngāi Tai Ki Tāmaki rely upon haukaunga mana whenua to engage with council and assess the proposal, and confirmed no further interest.

·    Ngāti Whātua o Ōrākei confirmed the proposal being outside their primary area of interest and confirmed no further engagement is necessary.

53.     No further communications have been received.

Implementation

54.     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 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.

55.     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.

56.     In light of the implications of the request for direct referral, it is considered appropriate for the Regulatory Committee to determine whether the application should be directly referred to the Environment Court, rather than Council officers.

 

 

Attachments

No.

Title

Page

a

s87E of the RMA

21

b

Request for Direct Referral - 72 Tidal Road, Mangere

23

c

Location Plan

81

d

Site Plan and Elevations

83

      

Signatories

Authors

Natalie Bedggood - Principal Planner Hearings & Resolutions

Robert Andrews - Resolutions Team Manager

Authorisers

Ian Smallburn - General Manager Resource Consents

Penny Pirrit - Director Regulatory Services

 


Regulatory Committee

09 February 2017

 

Section 87E of the Resource Management Act 1991

Under section 87E, Council must make a decision on a request for direct referral as follows:

(1)                      If the consent authority determines under section 88(3) that the application is incomplete, it must return the request with the application without making a decision on the request.  Section 88(4) and (5) apply to the application.

(2)                      If the consent authority receives the request after it has determined that the application will not be notified, it must return the request.

(3)                      If the consent authority receives the request before it has determined whether the application will be notified, it must defer its decision on the request until after it has decided whether to notify the application and then apply either subsection (4) or (5).

(4)                      If the consent authority decides not to notify the application, it must return the request.

(5)                      If the consent authority decides to notify the application, it must give the applicant its decision on the request within 15 working days after the date of the decision on notification.

(6)                      In any other case, the consent authority must give the applicant its decision on the request within 15 working days after receiving the request.

(7)                      No submitter has a right to be heard by the consent authority on a request.

(8)                      If the consent authority returns or declines the request, it must give the applicant its reasons, in writing or electronically, at the same time as it gives the applicant its decision.

(9)                      If the consent authority declines the request under subsection (5) or (6) the applicant may object to the consent authority under section 357A(1)(e).

 


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Regulatory Committee

09 February 2017

 

Request to Appoint Independent Hearing Commisioners for the Northern Interceptor Phase 3-6 Hearing

 

File No.: CP2016/24068

 

Purpose

1.       To request the appointment of independent hearing commissioners to hear submissions on a notice of requirement from Watercare Services Ltd (Watercare) for the Northern Interceptor Phases 3-6 Project and to make a recommendation to Watercare.

Executive summary

2.       Watercare has lodged a notice of requirement for the Northern Interceptor Phase 3-6 project (see Attachment A). The project is part of a series of projects (phases 1-6) to improve wastewater infrastructure in the northwest of Auckland. It is appropriate to appoint independent hearing commissioners to hear any submissions on the notice because Watercare Services Ltd is a council controlled organisation.

Recommendation/s

That the Regulatory Committee:

a)      appoint a panel of three independent commissioners, one to be a chairperson, to hear submissions and make a recommendation under section 171 of the Resource Management Act on notices of requirement by Watercare Services Limited for the Northern Interceptor Phases 3-6 project;

b)      delegate to the chairperson appointed in (a) the authority to make recommendations on the notices of requirement, should a hearing not be required;

c)      delegate authority to the chairperson of the Regulatory Committee to make a replacement appointment should any of the independent commissioners in (a) above be unavailable.

Comments

3.       Watercare has lodged notices of requirement for the Northern Interceptor Phases 3-6 project. The project involves the construction and operation of major wastewater infrastructure, being a pipeline and related infrastructure, from The Concourse in Henderson to the Rosedale Wastewater Treatment Plant.

4.       The Northern Interceptor Phases 3-6 is part of a series of related projects to improve wastewater infrastructure to service urban growth in west and north Auckland. Resource consent has been granted for phase 1.  Resource consents and notices of requirement are being processed for phase 2. Phases 3-6 are intended to service longer-term growth.

5.       The notices of requirement include a new designation for the pipeline and new pumping stations, and also an alteration to an existing designation to provide for wastewater pumping. The notice of requirement for the new designation was publicly notified on 10 November 2016. Submissions closed on 8 December 2016. Eleven submissions were received. The notice of requirement to alter an existing designation was not notified because the effects were less than minor.

6.       Staff recommend that the Regulatory Committee appoints independent commissioners to make recommendations to Watercare on these notices of requirement.  It is recommended that the commissioners appointed have general planning and also construction related traffic management expertise.  Consideration could also be given to the previously appointed commissioners for the earlier project phases to facilitate continuity in decision-making.

Consideration

Local board views and implications

7.       Watercare has advised that its staff engaged with the Henderson Massey Local Board in March 2016, and the Upper Harbour Local Board in April 2016. Local board comments included concerns about disruption from construction, the uncertainty of timing, the extent of the proposed designation boundary and pumping station footprints within parks, and the possibility of improving the walking network around parks following the completion of works.

8.       An information memo was sent to both of the above local boards on 3 November 2016.  The memo offered an opportunity for the local boards to provide comment on the notices of requirement.  Henderson Massey Local Board comments included: lack of time for local board comment, request for full notification for the new designation and limited notification for the designation alteration, the route should be redesigned to make use of road corridors rather going through parks and the Manutewhau Stream, the effects on future use of parks, compensation for loss of parks, effects on ecology and reinstatement, effects on private property, and effects of noise and vibration from pumping stations. The concerns raised by the local boards will be considered in the reports that staff will prepare on the notices of requirement.  The reports will be subsequently considered by the commissioners appointed by the Regulatory Committee.

Māori impact statement

9.       Watercare has advised that its staff have engaged with 19 mana whenua entities during development of the project. Eight mana whenua entities indicated their interest at the start of the projects, and to date, the six mana whenua groups listed as follows have been actively involved in hui and site visits with Watercare: Ngāti Manuhiri, Ngāti Whātua o Ōrākei, Te Kawerau a Maki, Ngāti Maru, Te Akitai, Te Rūnanga o Ngāti Whātua; Ngaati Whanaunga; and Ngāti Paoa.  Issues raised related to erosion and sediment control matters, accidental discovery protocols and the management of construction activity.  These matters will be discussed in the staff report for the consideration of the Commissioners. Consultation has built on the outcomes of engagement on previous phases of the project.

10.     Mana whenua were notified of the notices of requirement and no submissions have been received from mana whenua.

Implementation

11.     Following the decision to appoint a hearings panel and if submitters wish to be heard, staff will set a hearing date.  In the event that no submitters wish to be heard, it is proposed that the recommendation on the notices of requirement be made by the chairperson of the appointed hearings panel.

12.     All costs associated with processing of the notices of requirement are recoverable from Watercare.

 

Attachments

No.

Title

Page

a

Attachment A: Northern Interceptor Route

91

     

Signatories

Author

Christopher Turbott - Principal Planner

Authorisers

John Duguid - General Manager - Plans and Places

Penny Pirrit - Director Regulatory Services

 


Regulatory Committee

09 February 2017

 

PDF Creator


Regulatory Committee

09 February 2017

 

Appointment of a Commissioner to consider submissions made pursuant to s.24 of the Reserves Act 1977

 

File No.: CP2017/00405

 

Purpose

1.       To request the Regulatory Committee to appoint an independent commissioner to consider submissions received pursuant to s.24 of the Reserves Act 1977 to revoke the reserve status of land at 49 Nihill Crescent, Mission Bay and 161R Maraetai Drive, Maraetai.

Executive summary

2.       In 2016 the Regional Strategy and Policy Committee resolved to dispose of two parcels of reserve land, subject to the uplifting of the reserve status in accordance with s.24 of the Reserves Act 1977.

3.       The properties are located at 49 Nihill Crescent, Mission Bay and 161R Maraetai Drive, Maraetai.  Prior to the Regional Strategy and Policy Committee’s resolutions, each property had been through the rationalisation process managed by Panuku Development Auckland.

4.       Following public notification of the revocation proposals and separate engagement with mana whenua, seven submissions have been received on 49 Nihill Crescent and two submissions on 161R Maraetai Drive.

5.       It is proposed that an independent commissioner be appointed to consider the objections and submissions received for each property, and provide a recommendation report to Council on each revocation proposal.

6.       It is recommended that one commissioner is required to consider these submissions rather than a panel of commissioners, and Legal Services have confirmed that this would comply with the requirements of the Reserves Act 1977.

7.       The reports would then be submitted to the Environment and Community Committee for a resolution on each revocation proposal.

Recommendation/s

That the Regulatory Committee:

a)      appoint an independent commissioner to consider the submissions received following the notifications of the proposal to revoke the reserve status of land at 49 Nihill Crescent and at 161R Maraetai Drive under s.24 of the Reserves Act 1977, and

b)      direct that the commissioner will provide to the council a recommendation report on the consideration of the submissions in respect of each revocation proposal; and

c)      delegate to the Chairperson of the Regulatory Committee the authority to make replacement appointments should the independent commissioner appointed under a) above be unavailable.

Comments

49 Nihill Crescent, Mission Bay

8.       49 Nihill Crescent, Mission Bay (Lot 2 DP 21200) is an irregularly shaped, steeply sloping parcel of land totalling 875 square metres.  It is unmaintained and overgrown, with a number of mature bushes and trees.  The site is landlocked and has no public access. The lower lying area is an overland flow path and is subject to flooding.  The land was vested as plantation reserve in 1928.

9.       On 7 April 2016 the Regional Strategy and Policy Committee resolved to revoke the reserve status and dispose of 49 Nihill Crescent, Mission Bay, subject to the satisfactory conclusion of any required statutory processes and confirmation that it is not required as part of the Greenways Plan.  It has been confirmed that the property is not required for the Greenways Plan.

10.     Notification of the proposal to revoke the reserve status on Lot 2 was published on 11 November 2016 and the submission period closed on the 13 December.  Separate engagement with mana whenua on the proposal began on 26 October. One objection and one submission have been received from individual iwi and five objections have been received from members of the public.

161R Maraetai Drive, Maraetai

11.     161R Maraetai Drive, Maraetai is a vacant, 1,057m2 section with a frontage of 30 metres, narrowing to 10 metres.  It slopes steeply down from the road frontage and is generally grassed, with a few bushes along the boundaries.  The land is vested as recreation reserve.

12.     On 4 August 2016 the Regional Strategy and Policy Committee resolved to revoke the reserve status and dispose of 161R Maraetai Drive, Maraetai, (Lot 12 DP 34466) subject to the satisfactory conclusion of any required statutory processes.

13.     Notification of the proposal to revoke the reserve status on 161R Maraetai Drive was published on 18 November 2016 and the submission period closed on the 20 December. Separate engagement with mana whenua began on 17 November.  One objection has been received from Ngati Te Ata Waiohua and one objection has been received from an adjoining owner.

Consideration

Local board views and implications

14.     The Orakei Local Board endorsed the reserve revocation and disposal of 49 Nihill Crescent at its November 2015 business meeting, with the proviso that Panuku considers all disposal options for the property as it was the board’s opinion that there will be interest from parties other than the adjoining landowners.

15.     The Franklin Local Board endorsed the proposed reserve revocation and disposal of 161R Maraetai Drive at its June 2016 business meeting.

Māori impact statement

49 Nihill Crescent, Mission Bay

16.     As part of the rationalisation process twelve iwi authorities were contacted regarding the potential sale of 49 Nihill Crescent, Mission Bay.  No issues of cultural significance were raised. 

17.     As part of the notification process iwi authorities were again contacted regarding the proposal to uplift the property’s reserve status. One objection and one submission have been received from iwi.

161R Maraetai Drive, Maraetai

18.     As part of the rationalisation process eleven iwi authorities were contacted regarding the proposed divestment of 161R Maraetai Drive.  No issues of cultural significance were raised. 

19.     As part of the notification process iwi authorities were again contacted regarding the proposal to uplift the property’s reserve status. One objection has been received from Ngati Te Ata Waiohua.

Implementation

20.     There are no financial or legal implications beyond those normally associated with the appointment of hearing commissioners.  The costs of the hearings commissioner will be met by Auckland Council.

21.     Legal Services has advised that the appointment of a single commissioner to consider both cases will satisfy the requirements of the Reserves Act 1977.

22.     The reports on the consideration of submissions and objections will be submitted to the Environment and Community Committee for a resolution on each revocation proposal.

23.     If the Committee resolves that the reserve status should be uplifted, council officers will forward the resolutions, the commissioner’s reports and the submissions to the Department of Conservation. The Department will notify the decision in the New Zealand Gazette, if revocation of the reservation is approved by the Department.

 

Attachments

There are no attachments for this report.    

Signatories

Author

Nigel Hewitson - Team Leader Property Disposals

Authorisers

Ian Wheeler - Director Portfolio Management, Panuku

Penny Pirrit - Director Regulatory Services

 


Regulatory Committee

09 February 2017

 

Statement of Proposal: Draft Air Quality Bylaw for Indoor Domestic Fires

 

File No.: CP2016/25312

 

Purpose

1.       To seek a decision on whether to make a bylaw to re-establish the regional rules for indoor domestic fires and recommend approval of a draft air quality statement of proposal.

Executive summary

2.       Auckland Council (“the council”) is responsible for managing the region’s air quality. 

3.       Central government established maximum levels for key air pollutants (“National Air Quality Standards”) and it is the council’s responsibility to ensure Auckland meets these standards.

4.       Until recently, the council regulated the use of indoor domestic fires through the Auckland Council Regional Plan: Air, Land and Water (“former Regional Plan”). These rules have now expired as parts of the Unitary Plan have come into effect.

5.       This means there is currently a gap in the regulation of indoor domestic fires in Auckland.

6.       This report provides policy options for the Regulatory Committee to determine its response to the regulatory gap.

7.       The report outlines the following two options for determining whether to fill the gap:

·    choose not to re-establish the regional rules

·    make a bylaw to re-establish the regional rules.

8.       Staff recommend the council should re-establish the regional rules through a bylaw (Option A2). This would help the council to manage Auckland’s air pollution levels, particularly in winter when the risk of exceeding the National Air Quality Standards is greatest.

9.       Staff consider that a bylaw is the most appropriate response to the problem as it will enable the council to re-establish the rules in time for winter 2017.

10.     The report also outlines three options for applying the regional rules to urban Auckland.  The former Regional Plan differentiated between urban and rural areas when regulating new indoor domestic fires. However, the definition of urban used is now outdated as Auckland’s urban form has changed. 

11.     Staff recommend the council should adopt a new definition of urban for the purposes of the bylaw, based on Unitary Plan zones (Option B3). This option would most accurately reflect Auckland’s current urban form.

12.     Staff intend to consult with the public on all options, using the attached statement of proposal (Attachment A).

13.     Following the Regulatory Committee meeting, staff will present the statement of proposal to the Governing Body for adoption. If the Governing Body adopts the statement of proposal, the council would accept written submission on the proposal throughout March 2017.

 

 

 

Recommendation/s

That the Regulatory Committee:

a)      agree that its preferred approach for the draft Air Quality Bylaw for Indoor Domestic Fires is to make a bylaw to re-establish the regulations for indoor domestic fires that were in the Auckland Council Regional Plan: Air, Land and Water 2010, and to define the “Auckland Urban Air Quality Area” as follows:

EITHER

(i)    Option B1: Retain the former Regional Plan definition – use the definition for “Urban Air Quality Management Area” that was in the Auckland Council Regional Plan: Air, Land and Water 2010.

OR

(ii)   Option B2: Use the Auckland Urban and Township Air Sheds definition use the definition for “Auckland Urban Air Shed and the Township Air Shed” that was gazetted by the Ministry for the Environment in 2005.

OR

(iii)   Option B3: Use the urban zones in the Unitary Plan use the urban zones set out in Attachment A, including the Unitary Plan and Hauraki Gulf Islands urban zones and those parts of the “Urban Air Quality Management Area” from the Auckland Council Regional Plan: Air, Land and Water 2010 that are located within the Unitary Plan Waitakere Foothills and Waitakere Ranges zones.

b)      recommend that the Governing Body adopt the statement of proposal (Attachment A), which includes the draft Air Quality Bylaw for Indoor Domestic Fires, for public consultation under section 83 of the Local Government Act 2002.

c)      recommend that the Governing Body forward the statement of proposal (Attachment A) to local boards for their views.

d)      appoint a hearing panel comprised of three members of the Regulatory Committee, including one member of the Independent Maori Statutory Board, to hear submissions on the draft Air Quality Bylaw for Indoor Domestic Fires, deliberate and make recommendations to the Governing Body, subject to the Governing Body adopting the statement of proposal as per recommendation (b).

e)      appoint one member of the hearing panel established under resolution (c) as chairperson of the hearings panel.

f)       delegate authority to the chairperson of the Regulatory Committee to make replacement appointments to the hearings panel in the event that a member of the hearings panel is unavailable.

g)      delegate authority, through the Chief Executive, to the Manager, Social Policy and Bylaws, 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 Committee or the Governing Body.

 

 

Comments

Background

Managing air quality in Auckland

14.     Like the rest of New Zealand, Auckland’s air quality is impacted by air pollution from several sources, including transport, indoor domestic fires and industry.  Natural sources, such as sea spray and windblown dust, also play a role. 

15.     Auckland Council (“the council”) is responsible for managing the region’s air quality.  Central government has established maximum levels for key air pollutants (“the National Air Quality Standards”) and it is the council’s responsibility to ensure these are met[1].

16.     Auckland’s air quality has improved over the last two decades.  However, it sometimes exceeds the National Air Quality Standards. 

17.     The risk of exceeding the National Air Quality Standards is greatest in winter, when smoke from Auckland’s indoor domestic fires increases.

Regulating indoor domestic fires

18.     The use and installation of indoor domestic fires in Auckland has been regulated through a combination of national and regional controls.  The regulatory framework is summarised below.

19.     Central government regulates the types of wood burners that can be installed through the “National Wood Burner Standards.” The National Wood Burner Standards

·    set minimum thermal efficiency and maximum emissions standards for wood burners 

·    apply to all properties that are smaller than two hectares.  

20.     The council is responsible for implementing the standards. The council will only grant building consent to install a wood burner if the appliance meets the National Wood Burner Standards.

21.     The installation of other types of indoor domestic fires in Auckland has been regulated by the Auckland Council Regional Plan: Air, Land and Water (the “former Regional Plan”).  The former Regional Plan established its own technical standards for these other appliances.

22.     The standards were implemented through the council’s building consent process, i.e. only compliant appliances were approved for installation.

23.     The former Regional Plan also established rules about the operation of indoor domestic fires, including:

·    rules to prevent nuisance to neighbouring properties e.g. from smoke

·    prohibitions on burning certain materials.

24.     Outdoor fires are regulated separately through the Auckland Council Outdoor Fire Safety Bylaw 2014 and the Unitary Plan.


Problem definition

25.     The regulations for indoor domestic fires contained in the former Regional Plan have now expired. When the Unitary Plan came into effect, it replaced the former Regional Plan.  While the Unitary Plan regulates other matters previously covered by the Regional Plan, it does not regulate indoor domestic fires. 

26.     The National Wood Burner Standards are not affected by the Unitary Plan. These standards continue to regulate the type of wood burners that can be installed at properties smaller than two hectares. 

27.     However, the former Regional Plan rules that regulated the installation of other types of indoor domestic fires no longer apply.  The rules that restricted what Aucklanders can burn in their indoor domestic fires have also expired. 

28.     This has created a gap in the regulation of Auckland’s indoor domestic fires. 

29.     When developing the Unitary Plan, the council indicated its preference for a bylaw to manage air quality issues from indoor domestic fires.   This was a considered decision that a bylaw was the most appropriate regulatory tool as:

·    more restrictive bylaw rules about the use of open fires and burners were proposed at the time (no longer proposed)

·    a bylaw would provide an efficient decision making and enforcement process.

30.     The risk of increased pollution is greatest in winter, when smoke from Auckland’s indoor domestic fires increases.  Without effective regulation, Auckland’s air quality is more likely to deteriorate.  This could impact public health as it increases the risk of Auckland’s air quality exceeding the acceptable pollution levels set in the National Air Quality Standards. 

Decisions for the Regulatory Committee

31.     In response to the regulatory gap, the council needs to determine the following:

·    whether to address the regulatory gap by re-establishing regional rules

·    and if so, how to apply those regional rules spatially to Auckland.

32.     This report provides options for the Regulatory Committee’s consideration in relation to each of these decisions.

33.     Staff are seeking decisions on the Regulatory Committee’s preferred options for public consultation.  The council will consult with the public on all options.  However, the Committee’s decisions will be reflected in the statement of proposal, which forms the basis of consultation. 

Policy options to address gap in regulation

34.     Staff have identified two options for responding to the gap in regulation of indoor domestic fires.  Under both options, the council would continue to apply the National Wood Burner Standards.  The options differ as follows:

·    Option A1: No regional rules for indoor domestic fires the council would accept the regulatory gap and choose not to re-establish the rules for indoor domestic fires that were in the former Regional Plan

·    Option A2: Address regulatory gap by re-establishing regional rules the council would adopt regional rules to regulate indoor domestic fires. 

This would involve re-establishing the rules contained in the former Regional Plan.  The council could introduce the rules through a public plan change or by making a bylaw.

Analysis of Options A1 and A2

35.     The following section provides further detail about the options proposed, as well as their advantages and disadvantages.  

Option A1: No regional rules for indoor domestic fires

36.     Under this option, the council would continue to apply the National Wood Burner Standards.  However, the council would choose not to regulate the:

·    installation of other indoor domestic fires

·    nuisance effects of indoor domestic fires on neighbouring properties

·    type of materials that can be burnt in indoor domestic fires.

37.     The regulatory gap created by the Unitary Plan would continue and the rules from the former Regional Plan would not be reinstated.

·                     Table 1: Analysis of Option A1

 

Analysis

Advantages

·      the council would still be empowered to regulate enclosed wood burners by applying the National Wood Burner Standards.  These rules apply to properties smaller than two hectares.  The council would also regulated air pollution through the Unitary Plan, though not specifically in relation to indoor domestic fires

·      this would be a simpler regulatory framework to apply and communicate.

Disadvantages

·      the council could not regulate other types of indoor domestic fires and its ability to address complaints about local air pollution from smoky fires would be limited   

·      the Auckland Urban Air Shed is categorised as “polluted”, due to several exceedances of the national standards in 2013. Most exceedances have occurred in winter, when emissions from indoor domestic fires are greatest.  Not reinstating the regional rules would likely result in higher levels of winter air pollution, with negative impacts on public health and a higher risk of further exceedances 

·      accepting the regulatory gap now would make it harder to reintroduce regional rules at a later date, and would create uncertainty and confusion.    

 

Option A2: Address regulatory gap by re-establishing regional rules

38.     Under this option, the council would continue to apply the National Wood Burner Standards.  In addition, the council would re-establish the regional rules for indoor domestic fires that were in the former Regional Plan. 

39.     The council could implement these regional rules as follows:

·    it could amend the Unitary Plan through a public plan change.  However the plan change process is costly and lengthy i.e. one to two years.  It would involve full public consultation as well as potential appeals to the Environment Court.  It is not feasible to complete a plan change process prior to winter 2017

·    alternatively, the council could make a bylaw.  This process also involves formal public consultation, but the decision would not be subject to appeals.  The council could complete this process and implement the bylaw prior to winter 2017.

 

 

40.     The bylaw would replicate the regional rules as outlined in the table below.

·                     Table 2: Comparison of former Regional Plan rules and draft bylaw

 

former Regional Plan

Draft bylaw

Rule description

Rule ref.

Included?

Clause description

Clause ref.

Rules about ALL fires

Discharge rule: Prohibited discharge of contaminants that would have significant impacts on human health and safety and on other properties 

4.5.1(a)-(c) and 4.5.6

 

ü

Intent same as former Regional Plan, drafting updated

6(1)

Prohibited fuels: Prohibited burning the following:

 

Same as former Regional Plan

 

·      wet wood – wood with a moisture content of more than 25 per cent

4.5.10

ü

6(2)(a)

·      any fuel with high sulphur content greater than 0.5 per cent – e.g. high sulphur coal

4.5.10

ü

6(2)(b)

·      treated wood and wood products

4.5.9

ü

6(2)(d)

·      rubbish or green waste

4.5.9

ü

6(2)(c) &(e)

Rules about NEW fires

National Wood Burner Standards: The Regional Plan complemented the National Wood Burner Standards, which apply to properties smaller than two hectares.  Wood burners installed after 1 September 2005 must meet:

Noted in Section 4.5

ü

Same approach as former Regional Plan

Noted at Cl. 7

·      design emission standard of less than 1.5 g/kg of fuel burned 

ü

·      thermal efficiency standards of at least 65%. 

ü

Use of indoor fires in urban areas: Permitted use of new solid fuel burners in the Urban Air Quality Management Area, but only for appliances that meet the following emission standard: 

4.5.7 and 4.5.1 (a)-(c)

ü

Same as former Regional Plan [2]

7(1)

·      4 g/kg of fuel burned[3]

ü

Use of indoor fires in rural areas: Permitted use of solid fuel burners in the Rural Air Quality Management Area, subject to the discharge rule.

4.5.5 and 4.5.1 (a)-(c)

ü

Use permitted in rural areas by default, but still subject to discharge rule.

6(1) and 6(2)

New gas or liquid burners: Permitted use of new liquid fuel burners, subject to the discharge rule

4.5.4 and 4.5.1 (a)-(c)

ü

Same as former Regional Plan

6(1) and 6(2)

 


·                     Table 3: Analysis of Option A2

 

Analysis

Advantages

re-establishing the regional rules would:

·      enable to council to regulate indoor domestic fires not covered by the National Wood Burner Standards

·      allow the council to address complaints about local air pollution problems from smoky fires  

·      protect the city’s air quality in winter, when air pollution increases with the use of indoor domestic fires; most of Auckland’s exceedances of the National Air Quality Standards have occurred in winter 

·      help to protect public health and reduce the risk of further exceedances.  This is especially important as the city continues to grow 

·      maintain certainty and consistency in how Auckland’s indoor domestic fires are regulated.

Disadvantages

·      the combination of national and regional regulations is complex.  The council would need to continue communicating these measures to Aucklanders

·      establishing non-compliance and enforcement of the rules will be difficult.

Summary of Options A1 and A2

41.     Staff have assessed each option against the following criteria to help determine the best option for responding to the regulatory gap.  The first three criteria measure each option’s alignment with the policy intent for regulating indoor domestic fires.  The fourth measures the impact on Aucklanders in terms of regulatory certainty and continuity.

·    Impact on compliance with National Air Quality Standards – whether the option would support the council’s obligation to meet the National Air Quality Standards in order to protect public health

·    Ability to minimise nuisance impacts of indoor domestic fires – the extent to which the option would minimise nuisance to neighbouring properties

·    Impact on the environment – the extent to which the option would minimise the environmental impacts of indoor domestic fires

·    Level of certainty and continuity – the extent to which the option provides certainty for Aucklanders to make decisions about the use and installation of indoor domestic fires. 

42.     Table 4 compares Options A1 and A2 against the criteria.

·                     Table 4: Criteria assessment

Criteria

Option A1:

No regional rules

Option A2:

Re-establish regional rules

1

Ensures compliance with national standards and protects public health

û

ü

2

Minimises the nuisance impacts

û

üü

3

Ensures environmental protection  

û

ü

4

Ensures regulatory certainty and continuity 

û

ü

Key: 

Rating against criteria 

üü

ü

û

Good rating

Medium rating

Poor rating

Recommended approach for addressing gap in regulation

43.     Staff recommend the preferred option in the statement of proposal should be to re-establish the regional rules that were in the former Regional Plan (Option A2). 

44.     Staff also consider a bylaw would be the most appropriate way of regulating domestic indoor fires and addressing the regulatory gap. It is an efficient regulatory approach that includes public consultation, but is not subject to lengthy appeal process. A bylaw approach has an efficient enforcement response to issues and avoids lengthy consenting and appeal processes in situations where non-compliance occurs.

45.     This approach aligns with following previous council decisions:

·    In 2012, the Regional Development and Operations Committee agreed, in principle, that a bylaw approach should be considered as the preferred method for regulating domestic air pollution in Auckland, supplemented by Unitary Plan objectives and policies (resolution: RDO 2012/4). This position was recommended by the council’s Environment and Sustainability Forum in December 2011 (resolution: ES/2011/174)

·    In June 2015, the Regulatory and Bylaws Committee directed staff to develop an air quality bylaw to retain the operative rules in the former Regional Plan that would expire once the Unitary Plan came into effect (resolution: RBC/2015/17).

46.     Despite these earlier decisions, as part of the bylaw making process under the Local Government Act 2002, the council is required to determine whether a bylaw is the most appropriate way of addressing the perceived problem.  The reasons for the staff recommendation are summarised as follows.

·    reinstating the regional rules for indoor domestic fires would help to manage Auckland’s air pollution levels, particularly in winter 

·    the council has an obligation to maintain air pollution at a safe and acceptable level in accordance with the National Air Quality Standards

·    ensuring that Auckland’s air pollution does not exceed the National Air Quality Standards is important for public health reasons

·    a bylaw approach is more timely than a plan change process, and has an efficient enforcement approach.

47.     Staff have prepared the statement of proposal in line with these recommendations.  The statement of proposal includes a draft Air Quality Bylaw for Indoor Domestic Fires to re-establish the regional rules as outlined in Table 2. If the Committee chooses not to make a bylaw, the statement of proposal would not proceed.

Policy options for applying regional rules to urban Auckland

48.     In the former Regional Plan, the rules:

·    for installing new indoor domestic fires differed between urban and rural areas

·    were generally more restrictive for urban areas due to higher population and housing densities in these locations.  These characteristics mean there is a greater risk of increased pollution from indoor domestic fires in urban areas. 

49.     The Urban Air Quality Management Area used in the former Regional Plan represented Auckland’s urban area in 2010, but it is now out of date. 

 

50.     Staff have identified three options for defining Auckland’s urban area for the purposes of the bylaw (“Auckland Urban Air Quality Area”). This will impact the spatial application of the regional rules in the proposed bylaw, particularly in relation to the rules for new indoor domestic fires. The rules that apply to all indoor domestic fires would continue to apply, regardless of property location.

51.     All options would re-establish the regulations for indoor domestic fires that were in the former Regional Plan as described in Table 2 above. 

52.     The options differ as follows:

·    Option B1: Retain the former Regional Plan definition – this option would define the Auckland Urban Air Quality Area for the purposes of the bylaw, using the former Regional Plan’s definition of urban (“the Urban Air Quality Management Area”). This definition would provide a 2010 snapshot of Auckland’s existing and planned urban form (Map 1 and Map 2 in Appendix 2 of the statement of proposal)   

·    Option B2: Use the Auckland Urban and Township Air Sheds definition – this option would apply the “Auckland Urban Air Shed and the Township Air Shed” boundaries, as gazetted by the Ministry for the Environment in 2005, to the bylaw (Map 1 in Appendix 2 of the statement of proposal)   

·    Option B3: Use the urban zones in the Unitary Plan – this option would update the definition of Auckland Urban Air Quality Area using the urban zones in the Unitary Plan and in the Auckland Council District Plan: Hauraki Gulf and Islands Section.  The definition would also cover the small urban areas in the Unitary Plan Waitakere Foothills and Waitakere Ranges zones, that were previously included in the Urban Air Quality Management Area, in the former Regional Plan (Map 2 in Appendix 2 of the statement of proposal).  

Analysis of Options B1 to B3

53.     The following section provides further detail about the options proposed, as well as their advantages and disadvantages.  

Option B1: Retain the former Regional Plan definition

54.     Under this option, the bylaw would use the former Regional Plan’s Urban Air Quality Management Area to define the Auckland Urban Air Quality Area.  There would be no change to the geographic application of the regional standards. 

55.     The former Regional Plan’s definition of the Urban Air Quality Management Area was adopted in 2010 and is an outdated snapshot of Auckland’s urban form.  New urban areas that were not anticipated in 2010 would not be captured by this definition.  Areas that were projected for urban development in 2010, that have to date remained rural, would be included in this definition. 

56.     The table below outlines the advantages and disadvantages of this option.

·                     Table 5: Analysis of Option B1

 

Analysis

Advantages

·      strictly aligns with the Regulatory and Bylaws Committee resolution to retain the operative rules in the former Regional Plan. 

Disadvantages

·      adopted in 2010, the former Regional Plan’s Urban Air Quality Management Area is an outdated snapshot of Auckland’s urban form 

·      Auckland’s urban form has expanded, and therefore there will be discrepancies between the air quality standards that apply to different properties in urban areas 

·      the definition would become more outdated as urban form in Auckland continues to expand therefore not responsive to changes in the region.   

 

Option B2: Use the Auckland Urban and Township Air Sheds definition

57.     In 2005, The Ministry for the Environment gazetted the Auckland Urban Air Shed and the Township Air Shed (“the Air Sheds”).  The Air Sheds are used for air quality monitoring, reporting and consenting purposes.

58.     Under this option, the bylaw would use the Air Sheds boundaries to define the Auckland Urban Air Quality Area.  Any property outside the Air Sheds would be treated as rural by the draft bylaw.  

59.     The Air Sheds are generally urban in character, though they do not reflect Auckland’s urban development post-2005. Under this option, the areas within the Air Sheds would continue to be regulated. 

60.     Current urban areas that were not apparent in 2005, and therefore not reflected in the Air Shed boundaries, would not be regulated by the bylaw.

61.     The table below outlines the advantages and disadvantages of this option.

·                     Table 6:  Analysis of Option B2

 

Analysis

Advantages

·      as these areas are used to monitor compliance with the 2004 National Standards, it would be desirable to use these areas as the basis for the Auckland Urban Air Quality Area for the proposed bylaw 

·      when the Ministry for the Environment updates the gazette of Auckland’s Air Sheds, this option could be a good reflection of Auckland’s urban form.    

Disadvantages

·      gazetted in 2005, these Air Sheds are an outdated snapshot of Auckland’s urban development

·      Auckland’s urban form has expanded since 2005, so there are discrepancies between the air quality restrictions that apply to different properties within the urban area

·      the Air Sheds were established for monitoring compliance with the 2004 National Standards, rather than Auckland’s regional air quality objectives   

·      the definition would become more outdated as urban development in Auckland continues to expand, therefore not responding to changes in the region 

·      any changes to air quality areas will need to be gazetted by the Ministry for the Environment, taking it out of council’s control. 

 

Option B3: Use the urban zones in the Unitary Plan

62.     This option would use the urban zones in the Unitary Plan and the Auckland Council District Plan: Hauraki Gulf Islands, to define the Auckland Urban Air Quality Area. The urban rules under the bylaw would apply to the following zones:

·    Unitary Plan residential zones: large lot; rural and coastal; single house, mixed housing suburban zone; mixed housing urban zone and terrace housing and apartment buildings zone 

·    Unitary Plan business zones: city centre zone; metropolitan centre zone; town centre zone; local centre zone; neighbourhood centre zone; mixed use zone; general business zone; business park zone; heavy industry zone; light industry zone  

·    Urban zones (i.e. residential and business zones) in the Auckland Council District Plan: Hauraki Gulf Islands, as the Unitary Plan zones do not apply to the Hauraki Gulf Islands. 

63.     A few pockets of urban areas in the Unitary Plan Waitakere Foothills and Waitakere Ranges zones that were previously included in the Urban Air Quality Management Area in the former Regional Plan, would also be included as Urban Air Quality area in the proposed draft bylaw. 

64.     This would ensure that the urban air quality area in the proposed draft bylaw closely resembles the Urban Air Quality Management Area in the former Regional Plan, as requested by the Regulatory and Bylaws Committee.

65.     Open space zones and special purpose areas would be regulated by the air quality regulations of the surrounding zone.

66.     Also, this option includes transitional provisions in the proposed draft bylaw for any properties potentially affected by a change from the former Regional Plan.  These provisions will apply to properties that are currently seeking a building consent, or have recently received a building consent, for the installation of a new indoor domestic fire.  

67.     The table below outlines the advantages and disadvantages of this option.

·                     Table 7:  Analysis of Option B3

 

Analysis

Advantages

·      most accurate reflection of Auckland’s urban form as the Unitary Plan was adopted in 2016 and therefore most closely aligns with the intent of the former Regional Plan to focus on urban air quality

·      updating the definition to reflect Auckland’s current urban development would create consistency; all properties in Auckland’s urban area would have to meet the same standards when installing a new indoor domestic fire 

·      longevity is assured because as future urban zones become urban zones, it will automatically be included in the Auckland Urban Air Quality Area

·      the Auckland Urban Air Quality Area will always reflect the most updated urban form in Auckland.

Disadvantages

·      on adoption of the proposed bylaw, approximately 5639 extra properties would fall under the urban air quality regulations and would have to meet more restrictive standards for installing a new indoor domestic fire

·      the council will need to ensure that for any plan changes affecting urban zoning, the consultation process will need to highlight any impacts on air quality regulation.   

Summary of Options B1 to B3

68.     In order to determine the appropriateness of each option against the intent and form of the former Regional Plan, staff assessed the options against the following criteria:

·    Consistency with the former Regional Plan definition of urban – how closely the option aligns with the Urban Air Quality Management Area boundaries in the former Regional Plan 

·    Alignment with the intent of the rules in the Auckland Council Regional Plan: Air, Land and Water – how closely it aligns with the intent of the former Regional Plan, particularly for the urban area 

·    Impact on properties – the number of properties impacted by a change in the definition of urban air quality area

·    Longevity/future proofing – how often the definition would need to be updated to reflect actual urban and rural form

·    Ease of implementation and communication – how easy it would be to implement the rules for the urban air quality area, including communications to public and property owners.  

69.     Table 8 compares Options B1 to B3 against the criteria.

·                     Table 8:  Criteria assessment

Criteria

Option B1

Former Regional Plan

Option B2

Air sheds

Option B3

Unitary Plan

1

Consistency with former Regional Plan definition of urban

üü

û

ü

2

Alignment with intent of former Regional Plan 

ü

û

üü

3

Impact on properties

ü

û

ü

4

Longevity

û

û

üü

5

Ease of implementation

ü

ü

ü

Key: 

1.        

Rating against criteria

üü

ü

û

Good rating

Medium rating

Poor rating

 

70.     Option B1 would retain the Urban Air Quality Management Area from the former Regional Plan. However, this is not an accurate reflection of Auckland’s current urban form. This option would reduce the effectiveness of the draft bylaw, as some of Auckland’s current urban areas would be subject to less restrictive air quality rules than other urban areas.   

71.     Option B2 provides the most outdated snapshot of Auckland’s urban form.  It would have similar implications in terms uneven application to urban areas. This option also jeopardises the intent of the proposed bylaw and air quality management in the region.

72.     While the Air Sheds can be updated to reflect urban form in Auckland, the Ministry for the Environment will be required to gazette these areas. This limits the ability of Auckland Council to update its urban air quality area, as it needs to.

73.     Option B3 seeks to update the definition of urban air quality area to the urban zones in the Unitary Plan and the Auckland Council District Plan: Hauraki and Gulf Islands.

74.     This option most closely reflects Auckland’s current urban form and aligns most closely with the intent of the former Regional Plan. 

75.     Also, as areas of Auckland rezone, properties will be subject to the correct urban or air quality standards. This option will also include the pockets of urban areas in the Unitary Plan Waitakere Foothills and Waitakere Ranges zones that were previously defined as Urban Air Quality Management Area in the former Regional Plan.

76.     However, this approach will require the council to consult and communicate on the consequences of changes in air quality regulation, as zone changes occur. 

77.     All the options above retain the regional standards for air quality in the former Regional Plan, but seek to define the urban air quality area in different ways.   All options (as with the former Regional Plan) will present difficulties in terms of compliance and enforcement.

Recommended approach for defining Auckland Urban Air Quality Area

78.     Staff recommend Option B3 as it: 

·    most accurately reflects current urban form in  Auckland

·    aligns well with the intent of the former Regional Plan i.e. to regulate the installation of new indoor domestic fires in Auckland’s urban environment

·    it would be easy to maintain, and will remain current as zones are updated using the plan change process

·    easy to communicate as information about air quality standards can refer to existing Unitary Plan zones.

Consideration

Local board views and implications

79.     Setting air quality standards for the region is a governing body decision. 

80.     If the statement of proposal is approved by the Governing Body, it will be forwarded to local boards for their views. 

Māori impact statement

81.     The proposed bylaw seeks to regulate emissions from indoor fires for the protection of Auckland’s air quality and protect this valuable resource/taonga from degradation. This is in line with the principle of kaitiakitanga in the Māori Plan.

82.     Staff recommend that an Independent Māori Statutory Board member be represented on the hearings panel for the draft bylaw to ensure consistency with the principle of kaitiakitanga as outlined in the Māori Plan.

Implementation

83.     As per previous practice, the proposed draft bylaw and the statement of proposal are drafted with the recommended options (i.e. Options A2 and B3). The statement of proposal will not proceed or will be amended to reflect the decisions of the Committee.

84.     In accordance with Section 83 of the Local Government Act 2002, the statement of proposal, including the draft bylaw, will undergo public consultation. The council would accept written submissions throughout March 2017.

85.     Staff will conduct targeted consultation with the areas affected by changes to the definition of Auckland Urban Air Quality Area.

Attachments

No.

Title

Page

a

Statement of Proposal for draft Air Quality Bylaw for Indoor Domestic Fires

111

Signatories

Authors

Jasmin Kaur - Policy Analyst

Catherine Temple - Policy Analyst

Belinda Hansen - Team Leader Social Policy and Bylaws

Authorisers

Michael Sinclair - Manager Social Policy and Bylaws

Kataraina Maki - GM - Community & Social Policy

Penny Pirrit - Director Regulatory Services

 


Regulatory Committee

09 February 2017

 

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Regulatory Committee

09 February 2017

 

Update on regulatory policy and bylaws work programme

 

File No.: CP2017/00483

 

Purpose

1.       To provide an overview of the regulatory policy and bylaws work for the 2017 calendar year. 

Executive summary

1.       This report provides an overview of the upcoming decisions for the Regulatory Committee in 2017.

2.       New bylaws will be investigated for:

·   Air Quality - indoor domestic fires

·   Freedom Camping

·   On-site waste water

·   Smokefree public places.

3.       Bylaw and policy reviews will be progressed for:

·   Public Safety and Nuisance

·   Gambling

·   Dogs

·   Solid Waste.

Recommendation/s

That the Regulatory Committee:

a)      receive the report on the regulatory policy and bylaws work programme for 2017.

 

Comments

4.       The Regulatory Committee delegations include:

·   recommending bylaws to Governing Body for consultation and adoption

·   hearing and determining matters arising under bylaws

·   setting regulatory policy and controls.

5.       Between November 2010 and October 2015, Auckland Council reviewed 140 legacy bylaws and replaced them with 20 integrated, region-wide bylaws. The council also adopted four regulatory social policies. A list of these regulatory policies and bylaws is included in Attachment A.

6.       In 2017, staff will be investigating the development of up to four new bylaws and progress the review of three bylaw and two regulatory policies. 

7.       Table 1 provides an overview of the regulatory policy and bylaw work scheduled for 2017 and provides an indicative timeframe for the next reporting to the Regulatory Committee on these projects. 

 

 

 

Table 1: Regulatory policy and bylaw work scheduled for 2017.

New bylaws being investigated

Air Quality - indoor domestic fires

8.       In mid-2015, the Regulatory and Bylaws Committee decided to progress the development of a new air quality bylaw. This bylaw will incorporate provisions relating to the use of domestic indoor fires that were previously included in the Auckland Region Plan: Air, Land and Water; as this plan lapses when the Unitary Plan becomes fully operative.

9.       A draft Air Quality Bylaw is presented as a separate item on this meeting agenda. If approved, this will be publically notified and hearings and deliberations will be scheduled in late-April to May 2017.

Freedom Camping

10.     The Freedom Camping Act was introduced in August 2011. It enables local authorities to develop bylaws that specify:

·   areas in its district or region where freedom camping is prohibited

·   areas in its district or region where freedom camping is restricted

·   what restrictions apply in areas where freedom camping is restricted. 

11.     Research and a freedom camping pilot are underway to inform options for the future regulation of freedom camping in Auckland. Findings will be reported to the Regulatory Committee in July 2017.

On-site Wastewater

12.     The council is currently developing a strategy for managing on-site wastewater systems.  Bylaw regulation may be a potential management option. Staff are working to determine whether the development of a regional bylaw is necessary or appropriate and will report the findings of this initial investigation to the relevant committee in July 2017.

Smokefree

13.     In August 2016, the council completed a review of its non-regulatory smokefree policy. 

14.     The Regional Strategy and Policy Committee directed staff to “progress the investigation of a smokefree bylaw – commence the statutory process for investigating a draft smokefree bylaw to complement the council’s smokefree policy” (resolution number: REG/2016/67).

15.     Work has started and will be reported to the Regulatory Committee in August 2017.

Bylaw and regulatory policy reviews

Public Safety and Nuisance Bylaw

16.     In May 2016, the Regulatory and Bylaws Committee directed staff to “commence the review of the Public Safety and Nuisance Bylaw 2013 at an early date” (resolution number: RBC/2016/12). 

17.     An initial report will be provided to the Regulatory Committee in March 2017.

Local Alcohol Policy

18.     In May 2015, the council adopted the provisional Local Alcohol Policy. The policy has not yet come into force as it is subject to appeal before the Alcohol Regulatory and Licensing Authority. The public hearing is expected to take place in February 2017. Depending on the outcome of the appeals, the Regulatory Committee may be required to make a decision about the policy in 2017. 

19.     An update has been prepared for consideration at this meeting.

Gambling venue policies

20.     The Gambling Act 2003 and Racing Act 2003, requires the council to review the effectiveness of its Class 4 gambling (pokie) venues and TAB venues every three years.

21.     Auckland Council adopted the Class 4 Gambling (Pokie) Venue Policy and Racing Board (TAB) Venue Policy in 2013. These policies were reviewed in 2016 and the findings of this review will be reported to the Regulatory Committee in May 2017. 

Other scheduled bylaw reviews

22.     The Local Government Act 2002 requires the council to review new bylaw within five years of adoption.  If the council does not undertake the review of a bylaw within seven years of its adoption, it will be deemed revoked. 

23.     Bylaws that were adopted in 2012 are now due for review. In 2017, we will start:

·   a review of the Policy on Dogs and Dog Management Bylaw 2012

·   a review the Solid Waste Bylaw 2012.

24.     We will also provide advice to:

·   Auckland Transport on the review of its speed limit and traffic bylaws

·   Watercare on its Trade Waste Bylaw 2012.

Dog controls

25.     The council has controls for dog access. Local boards are decision makers for local areas and the Regulatory Committee is the decision maker for regional parks, beaches and foreshore areas.

26.     A report is being presented to the next meeting of this committee about taking a pragmatic and cohesive approach to dog management: the policy, bylaw and controls.

Related work being reported to other committees

27.     Several of the projects described above also have non-regulatory initiatives associated with them. The following projects have components that will be reported to the Environment and Community Committee:

·   Air quality: includes non-regulatory activities which will be captured in an Air Quality Action Plan. 

·   Smokefree: includes an update of the councils non-regulatory smokefree policy and the development of a targeted action plan (including Maori, Pasifika and vulnerable populations).

Consideration

Local board views and implications

28.     This information report does not raise any specific issues relating to local boards.

Māori impact statement

29.     This information report does not raise any specific issues relating to Māori.

Implementation

30.     The report identifies a work programme and timelines that can be delivered within current resourcing and budgets. Bringing projects forward or adding to the identified work programme would require work to be reprioritised or additional resources to be identified.

31.     The next work programme update will be presented to the committee in August 2017.

 

 

Attachments

No.

Title

Page

a

Auckland Council's bylaws and regulatory policies.

173

     

Signatories

Author

Michael Sinclair - Manager Social Policy and Bylaws

Authorisers

Kataraina Maki - GM - Community & Social Policy

Penny Pirrit - Director Regulatory Services

 


Regulatory Committee

09 February 2017

 

Attachment A:  Auckland Councils bylaws and regulatory policies.

 

Bylaws:

·    Auckland Transport Traffic Bylaw 2012

·    Dog Management Bylaw and Policy on Dogs 2012

·    Solid Waste Bylaw 2012

·    Auckland Transport Speed Limits Bylaw 2012

·    Trade Waste Bylaw 2012 (administered by Watercare Services)

 

·    Auckland Transport Election Signs Bylaw 2013

·    Food Safety Bylaw 2013

·    Health and Hygiene Bylaw 2013

·    Public Safety and Nuisance Bylaw 2013

 

·    Alcohol Control Bylaw 2014

·    Cemeteries and Crematoria Bylaw 2014

·    Navigation Safety Bylaw 2014

·    Outdoor Fires Bylaw 2014

 

·    Animal Management Bylaw 2015

·    Auckland Council Traffic Bylaw 2015

·    Property Maintenance and Nuisance Bylaw 2015

·    Signage Bylaw 2015

·    Stormwater Bylaw 2015

·    Trading and Events in Public Places Bylaw 2015

·    Waste Water and Water Supply 2015 (administered by Watercare Services).

 

Regulatory policies

·        Class 4 Gambling (Pokie) Venue Policy 2013

·        Racing Board (TAB) Venue Policy 2013

 

·        Local Approved Products Policy 2015

·        Provisional Local Alcohol Policy 2015

 

Note:  The  Provisional Local Alcohol Policy is currently subject to appeals and will not become operative until these appeals have been resolved.


Regulatory Committee

09 February 2017

 

Regional Wide Resource Consent Appeals Report at 9 February 2017

 

File No.: CP2017/00551

 

Purpose

1.       To provide an update on the current status of outstanding district and regional plan appeals.

Executive summary

2.       This report provides a summary of current resource consent appeals (refer Attachment A).

3.       Should members have detailed questions concerning specific appeals, please contact Robert Andrews, Team Manager, Resolutions prior to the meeting by email: Robert.andrews@aucklandcouncil.govt.nz

Recommendation/s

That the Regulatory Committee:

a)      note the summary of current resource consent appeals in Attachment A of the agenda report.

Comments

4.       The summary table is attached as Attachment A.

Consideration

Local board views and implications

5.       Local Board views have not been sought as this report is a report on current resource consent appeals and does not seek any specific decisions in relation to the appeals.

Māori impact statement

6.       All of the appeals are being processed according to the Resource Management Act 1991. 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.

Implementation

7.       There are no implementation issues.

 

Attachments

No.

Title

Page

a

Region-wide resource consent appeals report

177

     

Signatories

Author

Veena Krishna - Principal Planner Hearings and Resolutions

Authoriser

Penny Pirrit - Director Regulatory Services

 


Regulatory Committee

09 February 2017

 

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Regulatory Committee

09 February 2017

 

Noting the urgent decisions of 18 January 2017 : Surjit Juneja v Auckland Council - 89 Kinross Street, Blockhouse Bay (ENV-2016-AKL-000280)  and Metlifecare Limited v Auckland Council - 65 Hibiscus Coast Highway, Silverdale (ENV-2016-AKL-000282)   

 

File No.: CP2017/00440

 

Purpose

1.       To advise the Regulatory Committee of the decisions made under urgency to delegate authority for council staff to progress in the Environment Court the Surjit Juneja v Auckland Council – (ENV-2016-AKL-000280) and Metlifecare Limited v Auckland Council – (ENV-2016-AKL-000282) resource consent appeals.

Executive summary

2.       On 18 January 2018 the Regulatory Committee members Councillor Linda Cooper and Independent Maori Statutory Board member Glenn Wilcox resolved, under urgency, the delegated authority to the council’s Legal Services Senior Solicitor (Litigation and Regulatory) and Principal Planner Hearings and Resolutions, in regards to the appeals : Surjit Juneja v Auckland Council - ENV-2016-AKL-000280  and Metlifecare Limited v Auckland Council - ENV-2016-AKL-000282  to enter into mediation on behalf of the Auckland Council.

3.       The Council’s position on the original resource consent applications can be viewed on the Auckland Council website at this link  Hearings agenda and minutes

4.       The urgency was necessary for the reason that the Environment Court set deadlines by which the Council was required to confirm its position on court-assisted mediation that were before the 9 February meeting of the Regulatory Committee .

5.       For the Surjit Juneja v Auckland Council appeal , the deadline was on 19 January 2017; and for the Metlifecare Limited v Auckland Council appeal, the deadline was on 26 January 2017.

Recommendation/s

That the Regulatory Committee:

a)      note the decision made under urgency, delegating to council staff the authority to progress in the Environment Court the Surjit Juneja v Auckland Council - ENV-2016-AKL-000280  and Metlifecare Limited v Auckland Council - ENV-2016-AKL-000282: resource consents appeals.

 

Attachments

No.

Title

Page

a

Notice of Appeal_89 Kinross Street_Blockhouse Bay (Under Separate Cover)

 

b

Aerial photo - 89 Kinross St (Under Separate Cover)

 

c

Site plan - 89  Kinross St (Under Separate Cover)

 

d

Court directions-december2016_89 Kinross St (Under Separate Cover)

 

e

Notice of appeal_ 65 Hibiscus Coast Red Beach (Under Separate Cover)

 

f

Location map and aerial photo_65 Hibiscus Coast Red Beach (Under Separate Cover)

 

g

Case track directions_65 Hibiscus Coast Red Beach (Under Separate Cover)

 

     

Signatories

Author

Tam White - Senior Governance Advisor

Authoriser

Penny Pirrit - Director Regulatory Services

      

 


Regulatory Committee

09 February 2017

 

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

 

That the Regulatory Committee:

a)      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       Local Alcohol Policy update

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.

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 report contains information that has been prepared for the purposes of litigation, and policy positions that would disadvantage the council if they were to be made public prior to the conclusion of legal proceedings.

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       New Resource Consent Appeal - Kauri Bay Farm Limited v Auckland Council: 777 Clevedon Kawakawa Road, Clevedon

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 report contains information regarding the strategy for dealing with the appeal.

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.

 


 

C3       New Resource Consent Appeals: Aotea Station to North Auckland Line Section of the City Rail Link:
Qambi Properties limited v Auckland Council
William Dacre McKenzie v Auckland Council

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 report contains information that could compromise the council in undertaking without prejudice negotiations of this appeal that is 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.

 

C4       New resource consent appeal: Charles Wedd v Auckland Council - 782 Haruru Road, Wainui

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 report contains information relating to an Environment Court appeal and the disclosure of information may prejudice the council's position with regard to negotiations and the potential settment of the appeal.

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.

 

   



[1] The national air quality standards are specified in the Resource Management (National Environmental Standards for Air Quality) Regulations 2004.  These regulations also contain national standards about the installation of wood burners.

[2] The draft bylaw includes transitional provisions for properties that are affected by any change in the definition of urban for the purposes of the bylaw. 

[3] The national wood burner standard trumps the regional emission standard, as it is more restrictive. This means the emissions standard for the installation of wood burners in Auckland is less than 1.5 g/kg of fuel burnt (for installation in properties less than two hectares).