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

 

Date:

Time:

Meeting Room:

Venue:

 

Friday, 16 November 2018

9:30am

Room 1, Level 26
135 Albert St
Auckland

 

Komiti Whakahaere ā-Ture

 

Regulatory Committee

 

OPEN AGENDA

 

 

 

MEMBERSHIP

 

Chairperson

Cr Linda Cooper, JP

 

Deputy Chairperson

Deputy Mayor Cr Bill Cashmore

 

Members

Cr Josephine Bartley

 

 

Cr Fa’anana Efeso Collins

 

 

Cr Richard Hills

 

 

Cr Daniel Newman, JP

 

 

Cr Sharon Stewart, QSM

 

 

IMSB Chair David Taipari

 

 

Cr Wayne Walker

 

 

Cr John Watson

 

 

IMSB Member Glenn Wilcox

 

 

 

 

(Ex-officio)

Mayor Hon Phil Goff, CNZM, JP

 

 

(Quorum 5 members)

 

 

 

Maea Petherick

Senior Governance Advisor

 

12 November 2018

 

Contact Telephone: (09) 890 8156

Email: maea.petherick@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

16 November 2018

 

 

ITEM   TABLE OF CONTENTS                                                                                         PAGE

1          Apologies                                                                                                                        9

2          Declaration of Interest                                                                                                   9

3          Petitions                                                                                                                          9  

4          Public Input                                                                                                                    9

5          Local Board Input                                                                                                          9

6          Extraordinary Business                                                                                                9

7          Objections to St Marys Bay and Masefield Beach improvement project              11  

8          Consideration of Extraordinary Items 

PUBLIC EXCLUDED

9          Procedural Motion to Exclude the Public                                                                 95

C1       Deliberations on objections to St Mary's Bay and Masefield Beach Improvement Project                                                                                                                           95  

 


1          Apologies

 

At the close of the agenda apologies had been received from Mayor P Goff, Deputy Mayor B Cashmore and Cr R Hills for absence on council business.

 

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          Petitions

 

There are no petitions in this section.

 

4          Public Input

 

There is no public input in this section.

 

5          Local Board Input

 

There is no local board input in this section.

 

6          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.”


Regulatory Committee

16 November 2018

 

 

Objections to St Marys Bay and Masefield Beach improvement project

 

File No.: CP2018/16354

 

  

 

Te take mō te pūrongo / Purpose of the report

1.    To hear and determine fifteen objections to a component of the St Marys Bay and Masefield Beach improvement project; a tunnelled storage and conveyance pipeline.

Whakarāpopototanga matua / Executive summary

2.    Auckland Council is seeking to deliver the St Marys Bay and Masefield Beach water quality improvement project. The project involves upgrading the stormwater outfall network to reduce wastewater contamination of these beaches.

3.    A resource consent hearing for the project was held in September 2018 and a decision is expected by the time of the Regulatory Committee meeting on 16 November 2018.

4.    A major component of the project is a storage and conveyance pipeline proposed to be constructed between the existing overflow point at the corner of London and New Streets, St Marys Bay, and new infrastructure at 94A and 94B Shelly Beach Road in Point Erin (see project overview map in Attachment A).

5.    The council considered a range of options for the alignment of this project (see options analysis in Attachment B). All of the practical options involved installing a pipeline below properties. The proposed pipeline alignment was selected as it creates the least disruption to residents and is the most effective at capturing overflows discharging to St Marys Bay.

6.    The entire pipeline will be constructed well below ground level using a tunnel boring machine.

Objections to the project

7.    The pipeline passes underneath 24 land parcels comprising 61 properties with various ownership and leasing or cross leasing arrangements. In total, 109 property owners were separately served notice under section 181 of the Local Government Act (see Attachment C).

8.    Fifteen objections have been received. A map of the properties is shown in Attachment A and copies of the objections in Attachment D. The scope of the objections is varied and includes:

·      concerns over property and cliff stability and soundness during and after construction

·      concerns over the council’s liability to make good any damage caused by the project

·      concerns over the potential for the pipeline to prevent future development of properties

·      concern over potential diminution of property values as a result of the pipeline

·      a desire for compensation as a result of having the pipeline installed under their property.

9.    The council undertook negotiations and further consultation with objectors to attempt to resolve these objections (see list of communications in Attachment E). Negotiation has not been successful in resolving these 15 objections.

10.  The council’s advice from engineering experts is that there will not be any impacts on the properties as a result of construction or operation of the project. This is due to the depth at which the pipeline will be installed, the construction methodology and monitoring and the technology used. Potential development or redevelopment of properties will also not be prevented by the pipeline.


 

11.  Potential impacts on properties during construction will measured through pre and post-construction surveys and intensive monitoring set out in the resource consent conditions.

12.  Council is legally obliged to make good any damage caused by the project, which the monitoring and surveys are designed to pick up. The surveys will provide a sound baseline against which any claims against the project can be measured.

13.  There are no known instances where the test for compensation for injurious affection under the Public Works Act is likely to be met. In any case, staff’s recommended determination that the Regulatory Committee proceed with the proposed works under the Local Government Act will not prevent an objector making a claim for injurious affection under the Public Works Act.

14.  Clause 1(d) of schedule 12 of the Local Government Act provides a right for objectors to be heard by a committee of the council. Delegation to undertake the hearing of these objections lies with the Regulatory Committee

15.  The Regulatory Committee must hear the objections and determine to abandon or proceed with the works, namely the construction of a tunnelled pipeline as part of the St Marys Bay and Masefield Beach improvement project.

Ngā tūtohunga / Recommendations

That the Regulatory Committee:

a)      hear and determine the objections by the owners according to clause 1(e) of Schedule 12 of the Local Government Act 2002, and

b)      determine to proceed with the construction of the pipeline (as shown in Attachment A) according to clause 1(e) of Schedule 12 of the Local Government Act 2002.

Horopaki / Context

Water quality in the western isthmus

16.  A combined network (which carries both stormwater and wastewater) services approximately 15,000 households in central Auckland, including St Marys Bay. The network is very close to capacity and combined overflows are frequent, with increasing public concern regarding these.

17.  To address these issues in June 2018 Auckland Council adopted a Long-term Plan which includes a new water quality improvement targeted rate.

18.  The Western Isthmus Water Quality Improvement Work Programme is the largest workstream funded through the targeted rate. It aims to progressively reduce overflows into the Waitematā Harbour from hundreds of events to six or less per outfall each year.

St Mary’s Bay and Masefield Beach water quality improvements

19.  The St Marys Bay and Masefield Beach improvement project is the first project to be delivered as part of the Western Isthmus Water Quality Improvement Work Programme.

20.  The project will have major benefits through:

·      reducing combined stormwater and wastewater overflows in this area from over 200 to around 20 per year, which will be discharged into a more dynamic receiving environment further out into the harbour

·      reducing risks to public health from water contact and improving beach aesthetics

·      improving operation of the stormwater system

·      contributing to restoring the mauri of the harbour.


 

21.  The project also reduces implementation risk for the full Western Isthmus Water Quality Improvement Programme as, through undertaking this project, further improvements to the combined network can take place without continued contamination of these beaches. This is important as the full suite of proposed solutions will take some time to implement.

22.  In the short-term the project will provide a combined outfall for both stormwater and wastewater. Long-term, however, as separation works are completed across the catchments its use will be primarily for stormwater management and dispersal.

23.  A key objective of this project is to achieve completion of construction by December 2020 before the America’s Cup, APEC and Te Matatini in 2021. This will enable use of St Marys Bay and Masefield Beach by locals and tourists during these major events without the risk of frequent sewerage discharges. This requires construction to start in early 2019.

Infrastructure requirements, including pipeline

24.  As outlined above, the project involves the construction of a storage pipeline to capture and store current overflows and divert them to a new outfall structure at Point Erin. A new pump station within this structure will return flows to the sewer. When the capacity of the sewer is such that flows cannot be received, the system will discharge through a new sea outfall from Point Erin to a more dispersive receiving environment in the harbour (see Attachment A).

25.  The above ground infrastructure required includes a pump station, overflow structure, odour control facilities and ancillary services and access.

26.  The proposed storage and conveyance pipeline is the focus of the objections described in this report because it passes beneath 61 private properties. It will be constructed between the existing engineered overflow point at the corner of London and New Streets, St Marys Bay, and new infrastructure to be constructed at 94A and 94B Shelly Beach Road in Pt Erin (see map of alignment in Attachment A).

27.  The entire pipeline is to be constructed below ground level using a tunnel boring machine. The shallowest depth of the pipeline immediately below a dwelling is slightly less than 12 metres.

Resource consent and notification process

28.  Throughout 2017 the project was widely publicised in the St Marys Bay and Herne Bay catchments. Residents were invited to take part in project open days or request individual meetings, which included information and opportunities for feedback about potential pipeline alignments.

29.  The resource consent application for the project was publicly notified in May 2018 and the hearing for the project was held in September 2018. A decision on the consent is expected to be available by the time of the Regulatory Committee Hearing on 16 November 2018.

30.  Concurrently with the resource consent process, the Local Government Act process to gain consent to build under properties was initiated in March 2018. All impacted property owners were notified of the pipeline proposed underneath their property by mail in March 2018. Formal notice was served on 22 May 2018 (see formal notices in Attachment C).

Tātaritanga me ngā tohutohu / Analysis and advice

Options considered for locating the pipeline

31.  A St Marys Bay water quality improvement programme took place in 2016 with input from the council, Watercare Services Limited, Panuku and various other stakeholders. This looked at a wide range of potential projects and options for improving water quality in this area.

32.  The St Marys Bay and Masefield Beach improvement project was identified as a preferred initiative in 2016 to improve water quality, able to be delivered in the short term, while providing long term water quality benefits.

33.  In developing this project, the option of surface trenching a pipeline (which would mean construction in the street corridor, avoiding tunnelling under private properties) was considered but discounted for the following reasons.

·   Construction needs to be technically feasible. St Marys Bay is a highly constrained environment with narrow streets that already contain a large number of services.

·   The size of the pipe needed to provide conveyance and storage for current overflows makes surface trenching infeasible. A smaller pipeline was considered between London/New St and St Marys Road Reserve, however a pipeline sized for conveyance only would still be large. Trenching such a pipe would be more technically challenging, slow, disruptive and expensive to construct than a straight tunnelled alignment.

·   Trenchless construction of a pipeline in the streets would result in more surface construction sites than the current proposal (which has only one site in public streets, with the remainder being in NZTA land). This would significantly increase the cost, time to construct and disruption to residents of the project.

·   The existing combined sewer network in this area, which mainly runs below the streets, will also require major upgrading and asset replacement and renewal in future. This means council needs to avoid creating too much ‘below street clutter’ in this area of St Marys Bay with this outfall network upgrade. Deep tunnelling means there is sufficient space below the street for networks separation and installation of new pipes should this be undertaken in the future.

34.  An options analysis was also carried out to determine the preferred location for the above ground infrastructure to collect stormwater flows. Confirming this location was key to determining the pipe alignment.

35.  This options analysis was previously provided to the Environment and Community Committee in September 2018 as part of a confidential item relating to land acquisition (see Attachment B). It is also summarised below.

Options analysis

36.  Three main options were considered:

·   Option A: 94A and 94B Shelly Beach Road: This area comprises two land parcels currently owned by the NZTA. The land is currently unused by the NZTA and is subject to a ‘Licence to Occupy’ granted to Auckland Council for recreational use.

·   Option B: Corner of Curran and Sarsfield Street, within Point Erin Park and public roadway. This area is publicly owned by Auckland Council and Auckland Transport.

·   Option C. In Point Erin Park. This area is owned by Auckland Council and operated by Community Facilities.

37.     All of these options required a straight pipe alignment and some tunnelling under private properties to connect to outfall points, as it is difficult for a tunnel boring machine to move in a curved line (see options analysis in Attachment B).

38.     As Attachment B outlines, Option A: 94A and 94B Shelly Beach Road was preferred for various reasons. Some factors considered in selecting this location included:

·   Public feedback on the options was sought at a Project Open Day held June 2017. Overall, no firm preference for a particular alignment was shown. In general, people preferred alignments that were not passing beneath their properties, although most who commented preferred 94A and 94B Shelly Beach Road in Point Erin as a location for infrastructure.

·   Feedback on the options was also sought and received from other infrastructure providers and, as detailed in Attachment B, an assessment against many other criteria such as constructability, time to construct and impacts on local traffic and open spaces was undertaken. This assessment resulted in the selection of Pt Erin as the preferred location for new infrastructure.

39.     Once the preferred location at Point Erin was selected, the pipeline alignment needed to fit within the constraints of the location of the existing overflow points, allow for gravity operation and minimise construction and construction impacts in residential areas.

40.     It is also important to minimise construction in a highly constrained and complex environment close to the top ground layer adjacent to a cliff top susceptible to instability. It is preferable to construct well below ground level in sound material.

41.     For all these reasons, the proposed pipeline route was selected as the most practical in order to capture overflows discharging to St Marys Bay.

Notification and information provided to impacted Property Owners

42.     All 109 impacted property owners and occupiers on the selected pipeline alignment were provided with the following communications, as per the examples in Attachment C.

·    Letter dated 6 March 2018 outlining the project, informing the owner that their property is above the pipeline and they will be served notice.

·    Letter 21 May 2018 serving notice under s181 of the Local Government Act for intent to construct the pipeline under the property.

·    Letter 12 June 2018 reminding property owners of the closing date for objections (22 June).

43.     The letters were mailed to all regionwide addresses and PO Boxes and hand delivered to all local addresses. In addition, email copies of letters were distributed to all parties who were on the project database already and who subsequently requested this.

44.     All letters invited recipients to meet with the project team to discuss any concerns and to meet with technical specialists. This offer was taken up by a number of residents.

Summary of objections received

45.     As a result of this notice and further consultation period, a total of 15 objections were received. The objecting properties are shown in the map in Attachment A. The full objections are included in Attachment D and summarised in Table 1 below.

Table 1. Summary of objections received by property owner

No.

Name

Address

Summary of concerns relevant to  Local Government Act

1

Susan Young

17 London Street

1.  Impact on future development or redevelopment

2.  Impact on property values

3.  Construction impacts on property

4.  Compensation

2

Trevor and Ann Hackett

19 London Street

1.  Decrease in value of property

2.  Construction impacts on property

3.  Stability of the cliff

3

Julia Winterbottom

21a London Street

1.  Impact on future development

2.  Stability of the cliff

3.  Compensation

4

Candy Tauber

25E Ring Terrace

1.  Stability of the cliff

2.  Construction impacts on property and trees

5

Liza Jones
Sue Mihakis-Tierney
c/o Doug Cowan

25C, 25G and 25D Ring Terrace

1.  Historical building standards of properties

2.  Stability of the cliff

3.  Construction impacts on property

6

Darrin Johannink and Anjala Natali

23 London Street

1.  Stability of the cliff

2.  Alternative route options

3.  Construction disruption

4.  Construction impacts on property

7

Leo van Veenendaal

111 Shelly Beach Road

1.  Construction impacts on property

2.  Impact on future development

3.  Compensation

8

Sheryl Glasse

85a Shelly Beach Road

1.  Stability of the cliff

2.  Construction impacts on property

9

Russ and Lynda Bowler

(Lake Ltd) c/o Steve Mutch

2/17 Ring Terrace

1.  Stability of the cliff

2.  Construction impacts on property

3.  Council responsibility to make good any damage caused

10

Christine Heather

3/99 Shelly Beach Road

1.  Stability of the cliff

2.  Council responsibility to make good any damage caused

11

Jeanette Henry

19 Ring Terrace

1.  Stability of the cliff

2.  Council responsibility to make good any damage caused

12

Margaretha and Allan Cooper

6/79 Shelly Beach Road

1.  Construction impacts on property

2.  Stability of the cliff

3.  Council responsibility to make good any damage caused

13

Kevin Pollock

25a Ring Terrace

1. Stability of the cliff
2. Council responsibility to make good any damage caused

14

Brian William Putt and Suzanne Linda Ashmore

27 Ring Terrace

1.  Council responsibility to make good any damage caused

2.  Construction impacts on property

15

Allan Tyler

21 Ring Terrace

1. Construction impacts on property

46.     As shown in Table 1, objections were primarily based around the following topics:

·       Concern over property and cliff stability during and after construction, how this would be monitored and any damage remediated.

·       Concern over the council’s liability to make good any damage caused during construction.

·       Concern over the potential for the pipeline to prevent future development or redevelopment of properties.

·       Concern over potential diminution of property values as a result of the pipeline passing beneath.

·       A desire for compensation as a result of having the pipeline installed under the property either as a result of injurious affection or just generally.

47.     Subsequent to receiving the objections a number of different meetings, communications and negotiations were held with objectors to provide further information about the Local Government Act process and try to resolve queries and concerns. Attachment E provides a register of significant communications undertaken with all objectors.

48.     The project team also worked with the project engineers to assess each of the submitters concerns and to develop a detailed understanding of local geography and conditions. This work included:

·    Obtaining detailed and up to date ground level data along the proposed alignment

·    Undertaking a detailed cliff and tree survey along the entire proposed pipeline alignment to improve knowledge of exact contours and look for any areas of instability or trees of interest. Baseline monitoring of the cliff and trees has commenced so that the natural extent of ground movement and any developing areas of instability can be recorded.  These areas are not anticipated to be affected by the construction of the pipeline, this monitoring is being undertaken by the council to make sure that the ‘background’ risk posed by the clifftop is well monitored.

·    Requested access to all individual properties along the proposed alignment to carry out a preliminary inspection and scan of individual properties.

·    Undertook detailed design and analysis of the proposed pipeline alignment

49.     This work confirmed the engineering assessments summarised below in relation to the submitters’ concerns.

Cliff stability

50.     Extensive technical assessments relating to ground conditions, groundwater, cliff stability, impacts on trees and construction impacts have been carried out as part of the process for designing and consenting the project. The assessments have concluded that the clifftop is already naturally susceptible to instability. This unstable behaviour will continue.

51.     Construction of the project will not have any impact on the behaviour of the cliff (i.e., it will not make it better or worse). The project is not being constructed in the unstable cliff top ground layer, it is well below ground in sound unweathered material. Appropriate monitoring conditions are proposed in the resource consent conditions to ensure that construction does not impact the cliff.

Construction impacts

52.     The project engineers Aurecon have undertaken an assessment of the potential for impacts on individual properties along the pipeline alignment. Aurecon advise that that there will be very little or no construction impact on properties (in terms of vibration, noise, land instability, settlement or building movement), including those with piled foundations.

53.     This is because the pipeline is well below ground level and constructed in sound material as it passes below properties along the alignment. The proposed monitoring in the resource consent conditions, if granted, will ensure limits for vibration, noise etc are not exceeded. The proposed pre- and post-conditions surveys of properties will also provide a mechanism for assessing potential damage.

54.     Several objectors requested ‘evidence’ of proposed monitoring and technical assessment in the resource consent conditions. All objectors have been provided with the proposed conditions along with an offer to meet with the team to go through how these apply to their property.

55.     The proposed resource consent conditions are publicly available, but a delay in receiving the consent decision means that the final proposed conditions will not be available until shortly before the Regulatory Committee hearing on 16 November 2018.

56.     Assessment of construction impacts have been updated since the consent was submitted to include new information (as described in paragraph 42, above). Also, much of the proposed pipeline has been lowered slightly during detailed design (to improve hydraulic performance).

57.     The combined effect of these changes is that the new alignment is generally slightly deeper than earlier designs. This information is shown on updated property drawings that have been provided to all objectors. The deeper alignment means that the assessments undertaken for the resource consent and pipeline design were conservative and the risk of any impact on properties is even less than previously analysed.


 

Council’s obligation to make good any damage caused by construction

58.     A concern has also been raised over liability for damage caused by the work and whether neighbours could claim compensation from each other if one had ‘not objected’ under the Local Government Act.

59.     This concern is unfounded, the council and its contractors are legally liable for any damage caused by the project.

60.     Council will not provide indemnification against future cliff stability problems. As discussed above, the cliff is inherently unstable, but the project will not impact on this situation.

61.     As explained above, technical assessments show that there is not expected to be any impact on the cliff from the construction and operation of the project. The cliff is however inherently unstable and likely to cause ongoing issues for property owners, but this is a natural phenomenon.

Potential to prevent future development or redevelopment of properties

62.     The project team has reviewed the proposed design against existing development controls, including zoning, for each individual property (see engineering assessment and review of development controls by property in Attachment F).

63.     In general, development or redevelopment of properties on the cliff edge will present significant technical challenges to property owners as construction will impact significantly on the unstable surface of the cliff top. However, construction activity in the surface ground layer of the cliff top will not impact on the pipeline.

64.     Construction of piled foundations to support dwellings and structures was further analysed as this could potentially impact on the pipe. There are no properties where development will be prevented as a result of the pipeline. For most properties, the depth of the pipeline and rock cover means that future foundations are unlikely to extend to the depth of the pipeline. Even if they did, designing around the pipeline would not be problematic, due to its relatively small size.

65.     There are three properties where, depending on the nature and extent of any future redevelopment, care may need be needed to design foundations so as not to impact the new pipeline. There are no technical difficulties forseen with respect to designing foundations in this way as the pipeline is not large enough to prevent a selection of sites and angles for new foundations.

66.     There are no known current development proposals (e.g. with Resource Management Act or Building Act approval) that could be assessed for specific impacts.

Reduction in property values and compensation

67.     Injurious Affection: The process that the council is carrying out under section 181(3)(b) / Schedule 12 of the Local Government Act does not constitute the acquisition (or "taking") of land.  However, compensation for injurious affection can be claimed under the Public Works Act (1981) and this process must be pursued independently of the Local Government Act process. Injurious affection has a specific meaning with respect to reducing property value and must be proven.

68.     As this stage, based on the advice from the Council’s experts, there is no evidence that injurious affection will arise.

69.     Property owners can also still make a claim for compensation under the Public Works Act, even if their objection to the project is not upheld by the Regulatory Committee in their determinations under the Local Government Act.


 

Costs

70.     Some objectors have requested the payment of costs relating to participating in this Local Government Act process.  The council does not intend to pay for such costs.  The council has endeavoured to engage with, and assist, objectors, including making the council’s specialists available to discuss matters with the objectors. 

71.     If an objection is not sustained, objectors may appeal to the District Court. If they are successful the Court may make a costs award in favour of the winning party (that is against the council).

72.     In cases where there is injurious affection payable then there may be some justification for covering a claimant's reasonable costs. That is a matter for the Land Valuation Tribunal.

Summary of analysis and advice

73.     There are not anticipated to be any significant impacts on the properties as a result of construction or operation of the project. The proposed resource consent conditions and detailed pre and post-construction surveys provide a mechanism for both the council and property owners to confirm this. The surveys provide a sound baseline against which any claims against the project can be assessed. 

74.     There is no evidence to suggest that property values will be diminished or development will be prevented.

75.     There is also no current evidence to suggest injurious affection of any objector. In any case, a determination in favour of the work under the LGA by the Regulatory Committee will not prevent a claim under the Public Works Act for injurious affection at a later date.

Recommended decision

76.     For all of these reasons outlined above, it is recommended that the Regulatory Committee :

·   hear and determine the objections by the owners pursuant to section 181 of the Local Government Act 2002, and then

·   determine to proceed with the construction of the pipeline, as its construction will not significantly impact on property owners and is essential to successful delivery of the St Marys Bay and Masefield Beach improvement project.

Ngā whakaaweawe ā-rohe me ngā tirohanga a te poari ā-rohe /
Local impacts and local board views

77.     The Waitematā Local Board have not been specifically briefed on the private property owners’ objections described in this report. However, they have been briefed extensively on the overall project.

78.     The local board provided comments on the resource consent application that were supportive of the project overall, subject to some specific matters such as cliff stability, the visual impact of new infrastructure and disruption being resolved during the detailed design and construction process. These impacts are not relevant to construction of the storage pipeline but are being addressed through proposed resource consent conditions.

Tauākī whakaaweawe Māori / Māori impact statement

79.     It is recognised that works that impact on the mauri of water bodies are of significance to mana whenua in their role as kaitiaki of Auckland’s waterways.

80.     As outlined in previous reports to the Environment and Community and Strategic Procurement Committee on this project, extensive iwi consultation has taken place on the project.

81.     Mana whenua have expressed support for the project, with a submission in support of the project being received on the resource consent application from Ngāti Whātua Ōrākei. Ongoing hui will be held throughout the project construction and delivery.

Ngā ritenga ā-pūtea / Financial implications

82.     The project has a total budget of more than $30 million. Budgets to cover the full cost of the project were approved in the Long-term Plan 2018-2028. This funding comes from the new water quality targeted rate.

83.     In relation to the financial implications of the decision recommended in this report to proceed with construction of the pipeline. If an appeal to the District Court is made by an objector the following financial risks apply:

·    Legal and internal fees. These are not anticipated to be significant and can be accommodated within the existing project budget (which includes contingency allowances)

·    Award of costs or compensation to one or more property owners. These are not expected to be substantial, for the reasons outlined above relating to the low impact of the project on properties.

84.     Objectors can pursue a claim of injurious affection independently using the Public Works Act. At the time of writing, there are no known objections which are likely to meet the test for injurious affection as the new pipeline will not damage existing properties and will not prevent further development or redevelopment of existing properties.

Ngā raru tūpono / Risks

85.     The decisions outlined in this report are not considered to create a significant risk to the council. As outlined above, legal advice is that an appeal by an objector to the District Court is unlikely to be successful.

86.     Risks to individual properties are considered to be adequately managed by the proposed resource consent conditions and the monitoring offered for all properties along the pipeline alignment as outlined in Attachment C.

87.     Key risks to the overall project and proposed management are as follows:

·     Appeals to the Environment Court may delay the project meaning it is not possible to complete construction by late 2020. The nature of any appeals and potential impact on project progress will be known by mid December 2018. How any appeals are managed will depend on their scope, and any directions from the court.  However, the project team will seek to resolve issues as quickly as possible, including through mediation, to enable the project to proceed without undue delay.

·     Appeals to the District Court will not necessarily delay the project. This is because significant components of the project could be constructed while any objections are being resolved. These include the Pt Erin infrastructure and new outfall, removal of the old outfall and connection of the Sarsfield Street overflows to the new system.

Ngā koringa ā-muri / Next steps

88.     Subsequent to this determination and any appeals to the District Court (or Environment Court under the Resource Management Act), a contractor will be engaged to begin construction of the project. A report will be provided to the Strategic Procurement Committee in December 2018 seeking approval to appoint this contractor during the Christmas recess.

89.     As advised to all submitters under the Resource Management Act, objectors under the Local Government Act and interested parties, detailed pre-condition surveys of properties will be carried out close to the time of construction, other than where the property owner does not require this or will not allow it.

 

Ngā tāpirihanga / Attachments

No.

Title

Page

a

Maps showing project overview and objectors' properties

23

b

Options analysis for location of new infrastructure

25

c

Examples of formal notices sent to residents under the Local Government Act 2002

31

d

Copies of all objections received

43

e

Record of communications

79

f

Engineering assessments and review of development controls for each property

89

      

Ngā kaihaina / Signatories

Author

Craig McIIroy – General Manager Healthy Waters

Authorisers

Barry Potter - Director Infrastructure and Environmental Services

James Hassall - General Counsel

 



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Regulatory Committee

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 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       Deliberations on objections to St Mary's Bay and Masefield Beach Improvement Project

Reason for passing this resolution in relation to each matter

Particular interest(s) protected (where applicable)

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

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

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

In particular section 48(i)(d) and section 48(2)(a)(i) apply as the decision is appealable.

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.