I hereby give notice that an ordinary meeting of the Regulatory and Bylaws Committee will be held on:
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Date:
Time:
Meeting Room:
Venue:
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Tuesday, 3
December 2013
9.30am
Reception
Lounge
Auckland Town Hall
301-305 Queen Street
Auckland
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Regulatory and Bylaws Committee
OPEN AGENDA
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MEMBERSHIP
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Chairperson
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Calum Penrose
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Deputy Chairperson
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Cr Denise Krum
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Members
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Cr Bill Cashmore
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Cr Linda Cooper, JP
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Cr Alf Filipaina
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Cr Sharon Stewart, QSM
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Member John Tamihere
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Cr John Watson
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Member Glenn Wilcox
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Cr George Wood
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Ex-officio
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Mayor Len Brown, JP
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Deputy Mayor Penny Hulse
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(Quorum 5 members)
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Rita Bento-Allpress
Democracy Advisor
27 November 2013
Contact Telephone: (09) 307 7541
Email: rita.bento-allpress@aucklandcouncil.govt.nz
Website: www.aucklandcouncil.govt.nz
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TERMS
OF REFERENCE
The Regulatory and Bylaws Committee will be
responsible for:
·
Considering and making recommendations to the
Governing Body regarding the regulatory and bylaw delegations (including to Local
Boards);
·
Regulatory fees and charges in accordance with
the funding policy;
·
Recommend bylaws to Governing Body for special
consultative procedure;
·
Appointing hearings panels for bylaw matters;
·
Review Local Board and Auckland water
organisation proposed bylaws and recommend to Governing Body;
·
Set regulatory policy and controls, and maintain
an oversight of regulatory performance;
·
Engaging with local boards on bylaw development
and review; and
·
Exercising the Council's powers, duties and
discretions under the Sale of Liquor Act 1989 and the Sale and Supply of
Alcohol Act 2012
Relevant legislation includes but is not
limited to:
Local Government Act 2002;
Resource Management Act 1991;
Local Government (Auckland Council) Act
2009;
Health Act 1956;
Dog Control Act 1996;
Waste Minimisation Act 2008;
Land Transport Act 1994;
Maritime Transport Act 1994;
Sale of Liquor Act 1989;
Sale and Supply of
Alcohol Act 2012; and
All Bylaws.
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Regulatory and
Bylaws Committee
03 December
2013
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ITEM TABLE OF
CONTENTS PAGE
1 Apologies 5
2 Declaration of Interest 5
3 Confirmation of Minutes 5
4 Petitions 5
5 Public Input 5
5.1 Richard Brown - Auckland Yacht and Boating Association 5
6 Local Board Input 5
7 Extraordinary Business 6
8 Notices of Motion 6
9 Introduction to bylaws for the new Regulatory and Bylaws
Committee 7
10 Bylaws review and implementation programme update – December
2013 17
11 Proposed lifejacket bylaw and Statement of Proposal 27
12 Review of the Navigation Safety Bylaw and Statement of
Proposal 65
13 Establishing hearing panels for bylaws on navigation safety,
lifejackets, outdoor fires, stormwater management, air quality and trading in
public places 119
14 Consideration of Extraordinary Items
An apology from Cr SL Stewart has been received.
2 Declaration of Interest
Members are reminded of the need to be vigilant to stand aside from
decision making when a conflict arises between their role as a member and any
private or other external interest they might have.
3 Confirmation of Minutes
4 Petitions
At the close of the agenda no requests to present petitions had been
received.
5 Public Input
Standing Order 3.21 provides for Public Input. Applications to
speak must be made to the Committee Secretary, in writing, no later than two
(2) working days prior to the meeting and must include the subject matter.
The meeting Chairperson has the discretion to decline any application that does
not meet the requirements of Standing Orders. A maximum of thirty (30)
minutes is allocated to the period for public input with five (5)
minutes speaking time for each speaker.
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5.1 Richard Brown -
Auckland Yacht and Boating Association
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Purpose
1. Mr Brown has requested time to
speak to the Regulatory and Bylaws Committee on behalf of the Auckland Yacht
and Boating Association.
Executive
Summary
2. Mr Brown will give a
presentation in relation to the proposed Lifejacket Bylaw.
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Recommendation
That the Regulatory
and Bylaws Committee:
a) receive the presentation from
Mr Richard Brown and thank him for his attendance at the Regulatory and
Bylaws Committee.
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6 Local Board Input
Standing Order 3.22 provides for Local Board Input. The Chairperson
(or nominee of that Chairperson) is entitled to speak for up to five (5)
minutes during this time. The Chairperson of the Local Board (or nominee of
that Chairperson) shall wherever practical, give two (2) days notice of
their wish to speak. The meeting Chairperson has the discretion to decline any
application that does not meet the requirements of Standing Orders.
This right is in addition to the right under Standing Order 3.9.14
to speak to matters on the agenda.
At the close of the agenda no requests for local board input had
been received.
7 Extraordinary Business
Section 46A(7) of the Local Government Official Information and
Meetings Act 1987 (as amended) states:
“An item that is not on the agenda for a meeting may be dealt with
at that meeting if-
(a) The local authority by resolution so
decides; and
(b) The presiding member explains at the
meeting, at a time when it is open to the public,-
(i) The reason why the item is not on the agenda; and
(ii) The reason why the discussion of the item
cannot be delayed until a subsequent meeting.”
Section 46A(7A) of the Local Government Official Information and
Meetings Act 1987 (as amended) states:
“Where an item is not on the agenda for a meeting,-
(a) That item may be discussed at that meeting
if-
(i) That item is a minor matter relating to
the general business of the local authority; and
(ii) the presiding member explains at the
beginning of the meeting, at a time when it is open to the public, that the
item will be discussed at the meeting; but
(b) no resolution, decision or recommendation
may be made in respect of that item except to refer that item to a subsequent
meeting of the local authority for further discussion.”
8 Notices of Motion
At the close of the agenda no requests for notices of motion had
been received.
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Regulatory and
Bylaws Committee
03 December
2013
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Introduction
to bylaws for the new Regulatory and Bylaws Committee
File No.:
CP2013/25769
Purpose
1. This report provides a brief
introduction to bylaws and the review of the legacy bylaws that were inherited
by Auckland Council from the former councils.
Executive Summary
2. A bylaw is a rule or regulation
made by a local authority, and it can therefore reflect both regional and local
preferences. Auckland Council inherited 158 bylaws across 32 broad topics from
the former councils. Most of these current bylaws must be reviewed by 31
October 2015. The review of these bylaws is underway, focusing on the outcomes
sought for each topic and how these outcomes apply to Auckland.
3. The review programme is taking
into account legislative requirements (and timing due to central government’s
legislative programme), identified council priorities and alignment with the
council’s strategic vision, gaps (if any), other policy work and administrative
improvements or cost reductions where possible. It will provide an opportunity
for addressing inconsistencies from the various approaches adopted by the
former councils, ultimately leading to a coherent and aligned set of Auckland
Council bylaws. Not all legacy bylaws will be replaced with new bylaws.
4. Auckland Council and Auckland
Transport can both make bylaws within their particular areas of jurisdiction.
Legislation also provides specific roles related to bylaws for local boards and
the Auckland Water Organisation (Watercare Services Limited).
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Recommendation
That the Regulatory
and Bylaws Committee:
a) note the background to the
review of the legacy bylaws, including the principles adopted for the review
and the range of topics covered.
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Discussion
What are bylaws
5. A bylaw is a rule or regulation
made by a local authority, and can therefore reflect local preferences. This
means they are an important tool for local government as it seeks to deliver
the adopted community outcomes and reflect community preferences.
6. Various government acts or
regulations require or allow a local authority to make bylaws. Most bylaws are
made under the Local Government Act 2002 (LGA 2002) but other bylaws may be
made under such acts or regulations as the Health Act, the Dog Control Act, the
Burial and Cremation Act, the Prostitution Reform Act and the Transport Act.
Bylaws may not over-ride legislation made by parliament.
7. Bylaws generally permit or
regulate certain activities, require certain activities to be done in certain
ways or prohibit certain activities. Bylaws may also license persons or
property and set fees for certificates permits, licences, consents or
inspections. In line with good regulatory practice, the LGA 2002 requires a
local authority, before making a bylaw, to determine whether a bylaw is the
most appropriate way of addressing a perceived problem, and to ensure that the
proposed bylaw is not inconsistent with the New Zealand Bill of Rights Act.
8. The special consultative
procedure under the LGA 2002 must be used for making, amending, or revoking a
bylaw. This requires the council to consider the views and preferences of
people likely to be affected, or have an interest in a council decision. It
must then publicly notify its proposal to make, amend or revoke a bylaw,
outline in writing the reasons for such actions, invite and hear submissions
and make deliberations in open meetings on its proposal. For some topics
legislation may modify or over ride some of these general requirements.
9. The Regulatory and Bylaws
committee will receive and endorse each draft bylaw and statement of proposal
(SOP), before it is passed to the governing body for approval for the start of
public consultation. Once the public consultation period closes, a hearing
panel reviews the submissions, listens to verbal submissions and holds
deliberations in public on submissions and advice received. The hearings panel
then produces a report and recommendations for the governing body to consider,
before the governing body makes the bylaw.
Auckland Council and bylaws
10. The Auckland Council originally
inherited 158 bylaws and related policies from the former councils across 32
broad public policy or regulatory issues, and transitional legislation provided
for these bylaws to remain operative in the former districts until replaced or
revoked. As the former councils had differing approaches to each topic, a
number of different rules operate across the region, and some of the local
board areas have conflicting bylaw rules. Those conflicts must be resolved over
time to support consistent governance and customer service.
11. Only the governing bodies of
Auckland Council and Auckland Transport can make bylaws. In some cases the
areas of responsibility of these two bodies overlap, and in these cases two
similar bylaws can be adopted (one by each body) to provide a consistent and
coherent approach to regulation regardless of the split in jurisdiction.
Therefore, Aucklanders see one regulatory approach.
12. Auckland-specific legislation
sets out particular roles within the bylaw process for local boards and
Watercare Services Limited. These groups can perform advocacy actions that lead
up to bylaw adoption, including proposing bylaws and leading public
consultation on those bylaws.
13. This legislation also makes most
of the legacy bylaws expire on 31 October 2015. This means that the review of
each topic must be completed by that date.
14. An outline of the bylaw topics is
provided in attachment B.
15. The council has established a
programme to review the legacy bylaws, and implement any resulting changes to
its processes and service delivery. The Bylaw Review Update report to be
considered by this committee at its December 2013 meeting provides background
and status of the Bylaw Review Programme. This programme has so far revoked
around 70 legacy bylaws and related policies.
16. A set of eight principles were
adopted in 2011 to guide the review programme. These are set out in attachment
B and summarised below.
1. Ensuring that regulation by bylaw
is appropriate
2. Every bylaw should relate to an
adopted council strategy or policy
3. The regulatory framework should
be accessible to users
4. Bylaws should follow a consistent
structure
5. Local boards should be involved in
the bylaw-making and review process
6. Where a bylaw establishes a
region-wide framework, it should also provide if appropriate a transparent and
locally accountable procedure for making specific operating rules under
delegated authority
7. All bylaws should have a clear,
practical and efficient approach to enforcement
8. The bylaw-making or review
process must include consideration of how administration, implementation,
monitoring and review elements will be achieved
17. Decisions on several topics were
made within the first term of the Auckland Council: Dog management; Local Dog
Access areas; General administration; Offensive trades; Solid waste; Transport
(roads, Auckland Transport); Food safety; Election signs plus one amendment
(Auckland Transport); Health and hygiene; Public safety and nuisance[1]; and Trade waste.
Consideration
Local Board Views
18. Local boards are involved in the
review of each bylaw topic (consistent with the review’s principles). This
report does not raise any issues specific to local boards.
Maori Impact Statement
19. This report does not raise any
specific issues relating to Māori. The review of each topic includes
considering whether that topic includes any elements of special interest to
Māori, and if so the appropriate way to seek a greater level of
engagement. Where appropriate, consultation with Māori (on a particular
topic) may be linked to consultation on other related topics or other
initiatives.
Attachments
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No.
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Title
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Page
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a
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Topics covered by Auckland Council
and Auckland Transport bylaws
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11
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b
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Principles to be reflected in the
bylaw review
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15
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Signatories
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Authors
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Andrew Simon Pickering - Manager,
Planning, Policies and Bylaws
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Authorisers
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Roger King - Manager Bylaws, Business
Development and Support
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Regulatory and
Bylaws Committee
03 December
2013
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Attachment A: Topics covered by Auckland
Council and Auckland Transport bylaws
Alcohol Control (Auckland Council)
Alcohol control bylaws allow councils to
control the possession and consumption of alcohol in public places. This is
commonly achieved by creating on-going alcohol controls (also called liquor
bans) in specified public places over specified times so that it becomes an
offence to consume, bring into or possess liquor in such public places at such
times. The council is not able to apply a blanket ban to prevent alcohol being
consumed in all or in large parts of its area.
Animals and Pests (Auckland Council)
These bylaws generally control the keeping
of poultry, pigs, bees and cats and the slaughter of stock in urban areas and
deal with stock wandering onto public places in rural areas.
Air quality (Auckland Council)
Auckland Council has a
responsibility to manage air quality to protect human health and the
environment. Small particle emissions cause the greatest health effects of all Auckland’s main air pollutants. The key sources of air pollution in Auckland comes form
transport, industry and domestic heating. Of these, domestic fires are the
greatest contributor to particulate matter overall.
Cemeteries (Auckland Council)
Cemetery and crematoria bylaws typically
facilitate the management of cemeteries and crematoria under council’s control.
They cover the sale of burial plots, reservation of areas for special purposes,
provisions for internments, keeping graves and monuments in good order, the
control of vehicles and the keeping of records.
Commercial sex industry including
Brothels (Auckland Council)
The Prostitution Law Reform Act allows
territorial authorities to make bylaws to prohibit or regulate signage visible
from a public place that advertises commercial sexual services. The same act
allows a territorial authority to make bylaws regulating the location of
brothels.
Construction and development (Auckland
Council and Auckland Transport)
Bylaws in these areas often work alongside
the requirements of the Building Act. They may be used to protect public safety
and amenity by controlling structures, materials and work in, on or over or
adjacent (e.g. demolition) to public places. Bylaws may require street damage
deposits and manage the construction and use of vehicle crossings. Bylaws may
also regulate awnings, verahdahs and balconies over public places so that they
meet minimum standards for safety and cleanliness.
Dogs (Auckland Council)
The council must have a dog policy, and the
dog bylaw gives effect to this policy. The policy and bylaw must set out areas
where dogs are prohibited, where they are required to be on-leash, where they
can be off-leash and designated dog exercise areas. The Dog Control Act
requires dog owners to be notified of proposed changes to the dog policy and
dog control bylaw is changed; these changes are co-ordinated where ever
possible to minimise cost and simplify messages to owners.
Environmental Protection (Auckland
Council)
Some councils use bylaws to control the use
of outdoor lighting to prevent light spill and glare, whereas others would use
district plan rules. Bylaws in this group may require premises to be kept in a
clean, hygienic and tidy condition and may require burglar alarms to reset
after sounding for a maximum of 15 minutes
Food safety (Auckland Council)
These bylaws regulate the sale of food and
are complimentary to the requirements of the Food Hygiene Regulations. These
bylaws allow the closure of unhygienic premises, require staff working in food
premises to have a minimum qualification in food hygiene and allow the grading
of premises so that customers are informed about the cleanliness and conduct of
premises selling food to the public. Provisions also apply to the sale of food
from road side stalls so that the food is prepared and sold in a hygienic
state.
Hazardous substances (Auckland Council)
Bylaws in this area may control the storage
of hazardous substances and may also be used to ensure the safe storage of bulk
liquids, so that any spillage may be safely contained to prevent water
pollution.
Health and hygiene (Auckland Council)
These bylaws cover such activities as hair
removal, piercing, tattooing, acupuncture to prevent the transmission of
infectious diseases such as hepatitis B and HIV through inadequate hygiene
practices or un-sterilised equipment. Bylaw provisions generally require the
licensing of premises undertaking these activities, the adequate training of
staff, sterilisation equipment, the use of disposable needles for many
activities and practices that reduce the risk of infection.
Other bylaws may require the licensing of
beauty therapy clinics, health and fitness centres and massage premises and
minimum standards of construction and cleanliness of such premises to ensure
their hygienic operation. Bylaws may also prescribe minimum water quality
standards for spa and swimming pools that are open to the public.
Hostels (Auckland Council)
Auckland City Council was the only council
to have a bylaw controlling the standards of low cost accommodation such as
hostels, guesthouses, rooming houses, boarding houses, hotels, hotels and back
packer accommodation, which are not licensed by other legislation. This bylaw
sets standards for safety, ventilation, sanitary conditions and sets standards
to ensure they are well maintained, clean and not overcrowded. Nationwide
publicity in 2008 concerning the state of two boarding houses in an old Mangere
hospital, highlighted the poor conditions that can prevail in these types of
accommodation without adequate monitoring by councils.
Liquid and trade wastes (Auckland
Council with Watercare Services Limited)
The Auckland Regional Council, Rodney,
North Shore and Franklin had trade waste bylaws to regulate the discharge of
wastes into sewage systems to prevent damage to those systems and or damage to
sewage treatment plants. Watercare Services administer the trade waste bylaws.
Auckland City Council had a Waiheke
Wastewater Bylaw to ensure the proper operation of septic tanks and other
on-site wastewater disposal systems. Rodney, North Shore and Papakura had
similar provisions for on-site wastewater disposal.
Navigation safety, wharves and marinas
(Auckland Council and Auckland Transport)
Bylaws made under this subject matter
include the Navigational Safety Bylaw which controls activities on the waters
around the region. Provisions regulate the speed of vessels near the shore,
near other vessels, around wharves and ramps, include requirements that
anchored or moored vessels be seaworthy, and requirements around life jackets.
Provisions regulate moorings and anchorages, place controls on water skiing,
provide priority for large vessels within pilotage limits, and limit vessels
carrying explosives and oil tankers etc.
Auckland City also had a bylaw which works
in conjunction with the Auckland Regional Council Navigational Safety Bylaw to
control the use of Orakei Basin so that there is a safe separation of powered
and non-powered vessels using the basin.
The council controls its owned wharves and
boat ramps by bylaw. Waitakere and Rodney also had bylaws to manage the West
Harbour and Gulf Harbour Marina respectively.
Public safety and nuisance (Auckland
Council and Auckland Transport)
Public places bylaws provide the ability to
enforce general restrictions in public places (parks, reserves, squares, public
footpaths and berms etc) to protect those public places from misuse and to
protect the safety and amenity of those using such public places. Such bylaws
often street performances and events, may ban fireworks from certain areas and
may also require property owners to exhibit street numbers so buildings are
easily identified.
Recreational and cultural facilities
(Auckland Council)
North Shore, Waitakere, Auckland and
Manukau councils had bylaws regulating the use of libraries, swimming pools,
art galleries, halls and recreation centres. Some or all of these activities
may be able to be regulated by methods other than bylaws, such as, conditions
of membership (libraries), conditions of entry (art galleries, recreational
centres and pools) or contract (hall hire etc).
Outdoor fires
Several councils adopted rural or outdoor
fire bylaws to help manage risks related to these fires. These assist the rural
fire service (which is managed by the council). The bylaw supports the issuing
of fire permits and the fire ban process (in times of heightened risk).
Solid wastes (Auckland Council)
Solid waste bylaws typically regulate the
collection of household (and some cases business) rubbish collected by council
or their contractors. These bylaws may also licence waste collectors and set
fees for the disposal of rubbish at council owned sites. Some councils have
included provisions to make it an offence to place junk mail into letterboxes
which have stickers requesting “no junk mail” or similar. Solid waste bylaws
may not be in conflict with the council’s waste management and minimisation
plan.
Signs (Auckland Council and Auckland
Transport)
These can cover signs such as sandwich
boards, banners, ladder signs, elections and real estate signs. Auckland City
Council controlled the use of all types of advertising signs through a signs
bylaw whereas other councils only used bylaws to control specific types of
signs (e.g. temporary signs) and used district plan rules to control other
types of signs.
Stormwater management (Auckland Council)
Auckland City and Papakura District had
stormwater management bylaws to manage open watercourses and pipes that are used
to discharge stormwater to the coast. These bylaws generally require landowners
to keep watercourses free from obstruction so they function correctly for
stormwater transport. Note that the areas of volcanic soils in Auckland City
allowed ground soakage as the common means of disposing of private stormwater
in these areas and the bylaw allows the council to ensure that these ground
soakage areas are adequately maintained.
Traffic (Auckland Council and Auckland
Transport)
Traffic bylaws regulate matters such as
one-way roads, roads with weight restrictions, speed limits, the stopping,
loading and parking of motor vehicles, bus lanes, cycle paths and shared zones
which are not regulated by the various traffic-related acts, regulations and
road user rules promulgated by the government. A traffic bylaw may also address
the driving of vehicles on beaches, and controls on specific areas such as the
Auckland Domain. Auckland Transport is now responsible for bylaws relating to
the Auckland transport system (including roads), with the council responsible
for other areas such as roads within parks.
Water supply (Auckland Council with
Watercare Services Limited)
Most of the amalgamated councils had water
supply bylaws. These cover topics including metering, connection, protection of
the supply from contamination, water conservation, provision for fire fighting,
and use of water from hydrants. Watercare Services Limited who now manage water
supply may not require a bylaw as other means such as conditions of contract
may be used by them to adequately control the use of water. Legislation such as
the Health Act and Building Act also place obligations on water suppliers to
provide a safe water supply and on water users to protect water from
contamination.
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Regulatory and
Bylaws Committee
03 December
2013
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Attachment B: Principles to be reflected in the bylaw
review
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Principle
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Comment
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1
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Ensure that
regulation by bylaw is appropriate (Appropriate Mechanism)
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The Local Government Act
2002 requires a local authority, before making a bylaw, to determine whether
a bylaw is the most appropriate way of addressing an objective. Alternatives
such as education, self-regulation and advocacy
for national standards or regulation should
be considered.
Where regulation is
appropriate, the right place for this must be determined. For example, a
given topic may have been addressed in
a bylaw by some of the former councils, and through district plan rules for
others (e.g. signs).
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2
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Every bylaw
should relate to a strategy or policy
(Strategic or
Policy Alignment)
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Bylaws should generally
support (and be based on) a policy adopted by the council, e.g. a
comprehensive street trading policy for activities such as outdoor dining,
busking and events, should be in place before a bylaw is made to regulate
such activities. In some cases the policy and the bylaw may be worked on in
parallel.
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3
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The regulatory
framework should be accessible to users
(Accessible
to Users)
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Regulatory
requirements for a given activity may be located in a variety of places (e.g.
bylaws, the district plan, the building code, codes of subdivision).
Providing a carefully designed interface to these documents (and making links
between them) will improve customer service and certainty.
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4
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Bylaws should
follow a consistent structure
(Consistent
Structure)
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The use of a
standard bylaw form (with appropriate customisation where necessary) is
likely to make bylaws easier to use, and to reduce costs of ongoing
maintenance.
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5
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Local boards
should be involved in the bylaw-making and review process
(Local Board
Engagement)
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This will ensure
that Local Boards are involved in development of policy, bylaws, specific
rules and delegations that will either affect their local board area, or
guide later Local Board decision-making under the adopted bylaw framework.
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6
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Where a bylaw
establishes a region-wide framework, it should also provide if appropriate a
transparent and locally accountable procedure for making specific operating
rules under delegated authority
(Transparent
and locally accountability)
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This supports
ongoing legislative compliance and provides for efficient decision-making
where specific rules are determined pursuant to a bylaw (as opposed to being
contained within a bylaw). It will also allow ample opportunity for local
decision-making (by local boards or officers) without the need for governing
body or committee scrutiny, where appropriate.
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7
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All bylaws
should have a clear, practical and efficient approach to enforcement
(Enforceable)
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Bylaws must be
able to be enforced to be effective. Rules, and the enforcement approaches
that can be used when these rules are breached need to be clear.
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8
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The bylaw-making
or review process must include consideration of how administration,
implementation, monitoring and review elements will be achieved
(Operational
considerations)
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Bylaws are
typically put in place to address a particular issue or support a particular
outcome. This is likely to be achieved in a more effective, efficient and
transparent way if operational elements are considered through the policy and
bylaw development process.
This would often
include the process for making or review of any specific rules to give effect
to, or that are required for, the administration of the bylaw, considering
the level of delegation proposed, and the information needed to confirm that
the bylaw has the intended effect.
This will ensure
that bylaws are able to be enforced on commencement, and bylaw development
will be viewed as part of a wider process.
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Regulatory and
Bylaws Committee
03 December
2013
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Bylaws review and implementation programme update –
December 2013
File No.:
CP2013/25824
Purpose
1. This report provides an update
on bylaw review (policy) and bylaw implementation (operations). This joint
approach to reporting ensures that our decision-makers have a complete overview
of the end-to-end programme through to 2015.
Executive Summary
2. The council has been reviewing
its bylaws since 2011. A separate report to the Regulatory and Bylaws Committee
provides the background to this review and notes that final decisions have been
made for 10 bylaw topics over the first term of council.
3. Draft bylaws will be presented
to the committee in the immediate few months for five topics: navigation
safety; lifejackets; outdoor fires; stormwater management; and trading in
public places. Planning for implementing and operating the new bylaws is also
underway for these bylaw topics.
4. The lifejacket regulations have
been separated from the Navigation and Safety bylaw review as directed by the
Regulatory and Bylaws Committee in September 2013, following a request from the
Otara-Papatoetoe Local Board to have lifejackets considered as a discrete
bylaw. There have been no further requests from local boards for local bylaws.
5. Implementation projects have now
been completed for animal management (including implementing the new dog
management bylaw and policy and the changes to these made under local board
delegations); food safety; and electoral signs. Implementation planning has
also started for Stormwater management, trading in public places and for
revoked and lapsed bylaws.
6. Auckland Transport will be
reviewing their election signs bylaw ready for the 2014 general election.
7. Several alcohol control
and firework ban requests are complete.
8. Review work is continuing on
further topics to support completion of the review programme by October 2015.
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Recommendation
That the Regulatory
and Bylaws Committee:
a) note progress of bylaw review
and implementation and the forward programme that will complete the review of
the legacy bylaws by 2015.
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Discussion
The bylaw review programme
9. The bylaw review programme was
endorsed by this committee in December 2010 (refer CP2010/00962) and February
2011 (refer CP2011/00453). It will review the legacy bylaws (that is, the
bylaws inherited from the former councils) across approximately 30 topics. A
new bylaw will be prepared for each topic where appropriate, or a
recommendation made that the underlying issue or outcome is better handled
another way.
10. The Regulatory and Bylaws
Committee has responsibility of the review and implementation and receives
regular updates. The previous update on the programme was provided in July 2013
(refer CP2013/14784 and RB/2013/31). This report covers July to November 2013.
11. Noting that this is the first
meeting of the new Regulatory and Bylaws committee, a short background report
has also been provided for this agenda.
Update on review of bylaw topics
12. The current state of the review
work programme is presented in the table below and the detailed comments for
several topics that follow. Attachment A provides an overview of the timeline
for the programme.
13. The table below includes reviews
that have already been completed. It also covers bylaws that may be folded into
other topics (Freedom camping; Arkles Bay Set Netting); the ongoing local
boards’ review of dog access rules; and the review that must take place within
five years of any bylaw’s adoption.
14. The work completed
between 2011-2013 is shown for background.
Table 1: Summary of
status for review of bylaw topics
|
Topic
|
Status and Progress – 7 stages
|
Comments
|
|
|
Status
|
1-Preparation
|
2-Pre-consultation
|
3-Options
|
4-Write Bylaw
|
5-Adopt draft
|
6-Spec Cons Proc
|
7-Adopt final
|
|
|
Reviews completed
|
|
|
|
|
|
|
|
|
|
|
Dog management
|
C
|
|
|
|
|
|
|
|
Completed
|
|
Election Signs (2013)
|
C
|
|
|
|
|
|
|
|
Completed
|
|
Food safety
|
C
|
|
|
|
|
|
|
|
Completed
|
|
General administration
|
C
|
|
|
|
|
|
|
|
Completed
|
|
Health and hygiene
|
C
|
|
|
|
|
|
|
|
Completed
|
|
Offensive trades
|
C
|
|
|
|
|
|
|
|
Completed
|
|
Public safety and nuisance
|
C
|
|
|
|
|
|
|
|
See below
|
|
Solid waste (Waste m/ment)
|
C
|
|
|
|
|
|
|
|
Completed
|
|
Trade waste
|
C
|
|
|
|
|
|
|
|
Completed
|
|
Transport (Auckland Transport)
|
C
|
|
|
|
|
|
|
|
Completed
|
|
|
|
|
|
|
|
|
|
|
|
|
Work programme
|
|
|
|
|
|
|
|
|
|
|
Election Signs (amendment)
|
C
|
|
|
|
|
|
|
|
Completed
|
|
Solid waste (controls)
|
C
|
|
|
|
|
|
|
|
Completed
|
|
Navigation Safety
|
G
|
|
|
|
|
|
|
|
See below
|
|
Lifejackets
|
G
|
|
|
|
|
|
|
|
See below
|
|
Outdoor fires
|
G
|
|
|
|
|
|
|
|
|
|
Trading in public places
|
G
|
|
|
|
|
|
|
|
See below
|
|
Stormwater management
|
G
|
|
|
|
|
|
|
|
|
|
Signs
|
G
|
|
|
|
|
|
|
|
See below
|
|
Election signs (2014)
|
G
|
|
|
|
|
|
|
|
See below
|
|
Alcohol licensing fees
|
G
|
|
|
|
|
|
|
|
See below
|
|
Alcohol controls
|
G
|
|
|
|
|
|
|
|
|
|
Animal management
|
G
|
|
|
|
|
|
|
|
|
|
Air quality
|
G
|
|
|
|
|
|
|
|
See below
|
|
Boarding houses and Hostels
|
G
|
|
|
|
|
|
|
|
|
|
Cemeteries and crematoria
|
G
|
|
|
|
|
|
|
|
|
|
Commercial sex industry
|
G
|
|
|
|
|
|
|
|
|
|
Construction and development
|
G
|
|
|
|
|
|
|
|
|
|
Onsite wastewater
|
G
|
|
|
|
|
|
|
|
|
|
Hazardous Substances
|
G
|
|
|
|
|
|
|
|
See below
|
|
Orakei Basin
|
G
|
|
|
|
|
|
|
|
|
|
Recreational and Cultural Facilities
|
G
|
|
|
|
|
|
|
|
|
|
Transport (Parks / AC controlled land
|
G
|
|
|
|
|
|
|
|
|
|
Water supply
|
|
|
|
|
|
|
|
|
See below
|
|
Wastewater (reticulation)
|
G
|
|
|
|
|
|
|
|
See below
|
|
Wharfs and Marinas
|
G
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other work
|
|
|
|
|
|
|
|
|
|
|
Review - local dog access rules
|
G
|
|
|
|
|
|
|
|
Reviews by local boards - ongoing
|
|
Freedom camping
|
G
|
|
|
|
|
|
|
|
|
|
Arkles Bay set netting
|
G
|
|
|
|
|
|
|
|
See below
|
|
Consolidation of filming fees
|
B
|
|
|
|
|
|
|
|
|
|
Five year reviews
|
B
|
|
|
|
|
|
|
|
See below
|
Status summary codes
|
C
|
Green C – work
completed.
|
|
G
|
Green - Work is
progressing as planned, due date will be met or any revised date will not
have wider impacts
|
|
A
|
Amber – Original
due date at risk of being missed and this may have wider impacts; or an issue
has arisen.
|
|
R
|
Red - Due date
has or will be missed and this will have wider impacts; or an issue has
arisen that will have wider or significant impacts.
|
|
B
|
Blue - Not yet
scheduled. However, background work is underway.
|
Table 2:
Additional comments for particular topics in the bylaw review programme
|
Public safety and nuisance
|
On
track
|
G
|
|
This bylaw topic straddles the
responsibilities of Auckland Council and Auckland Transport. Auckland Council
adopted its version of this bylaw in August 2013, and Auckland Transport will
make the bylaw in November 2013. These bylaws will be in force in May 2014.
|
|
Navigation Safety/Lifejackets
|
On
track
|
G
|
|
The Regulatory and Bylaws Committee
instructed staff to separate the regulations concerning the wearing of
lifejackets from the Navigation Safety bylaw review, and to prepare a
lifejackets bylaw for public consultation for December 2013.
|
|
Election signs (2013 amendment)
|
On
track
|
G
|
|
Auckland Council bylaws staff helped
Auckland Transport redraft, consult, and run the special consultative
procedure, that enabled Auckland Transport to amend the 2013 bylaw to remove
unintended restrictions, in time for the local body, and health board
elections.
|
|
Trading in public places (policy and
bylaw)
|
On
track
|
G
|
|
Feedback from earlier workshops with
local boards and this committee is being used to develop a draft policy,
bylaw and code of practice. It is expected that these will be reported to
this committee (as appropriate) early in 2014. Any new bylaws could come into
force for July 2015.
|
|
Signs
|
On
track
|
G
|
|
An issues and options paper has been
developed and is being used to support consultation with stakeholders
(including elected representatives and representatives of businesses and the
signage industry). A further workshop is planned with this committee in
December to explore issues that have arisen in those discussions, including
the balance of safety, amenity and economic development and the best way to
provide for local decision-making.
|
|
Election signs (2014)
|
On
track
|
G
|
|
This bylaw falls under the jurisdiction
of Auckland Transport, as part of their management of the road corridor and
traffic safety issues. An Election Signs Bylaw 2013 was adopted in May 2013
for the local government election. This bylaw will be reviewed and amended in
time for the general election that is expected in 2014.
|
|
Alcohol licensing fees
|
On
track
|
G
|
|
The Sale and Supply of Alcohol Act 2012
comes into force fully on 18 December 2013, substantially changing the way
that alcohol is licensed and sold. Central government has provided councils
the ability to set their own fees for various types of licenses, through a
bylaw. The council has endorsed adopting such a bylaw, with further details
to be reported to the appropriate committee early in 2014 (refer Governing
Body meeting of 22 August 2013, item 13, GB/2013/83).
The legislative process for adopting an
alcohol licensing fee bylaw uses specific provisions for targeted
consultation, rather than the special consultative procedure.
|
|
Air quality
|
On
track
|
G
|
|
A councilor workshop is scheduled in December 2013. This
workshop will confirm the approach the bylaw will take in preparation to
local board workshops early next year.
|
|
Hazardous substances
|
On
track
|
G
|
|
Only one legacy council (Auckland City
Council) has a hazardous substances bylaw. Consultation with internal
stakeholders has shown that the issues the bylaw regulates are adequately
covered by existing legislation without the need for a regional bylaw. A
report will be provided to the Regulatory and Bylaws Committee recommending
the bylaw is allowed to lapse in 2015.
|
|
Water supply
|
On
track
|
G
|
|
The Auckland Water Authority (Watercare
Limited) is responsible for the issues to be regulated by a bylaw. They have
now started the review of the legacy bylaws with Auckland Council staff.
|
|
Waste waster (reticulation)
|
On
track
|
G
|
|
The Auckland Water Authority (Watercare
Limited) is responsible for the issues to be regulated by a bylaw. They have
now started the review of the legacy bylaws with Auckland Council staff.
|
|
Arkles Bay set netting
|
On
track
|
G
|
|
This bylaw prohibits set netting along Arkles Bay. It remains in place until October 2015. However, the Public Safety and nuisance
(PSN) bylaw will be in force in May 2014. The bylaw allows the council to
restrict certain activities adjacent to beaches, including shore-based
fishing. Work is underway to identify the need for any controls on set
netting, and if so the extent of those controls. There may be scope to
replace the Arkles Bay bylaw with controls under the PSN bylaw earlier.
|
|
Five year bylaw reviews
|
Background
work underway
|
B
|
|
The Local Government Act 2002 requires
that bylaws are reviewed five years after their initial adoption (and then
again every 10 years). Auckland Council adopted its first bylaws in 2012, so
that some bylaws will need to be reviewed by 2017.
Initial planning is underway that will
put into place monitoring procedures on the new bylaws. This monitoring at a
local and regional level is critical in building up a picture of the
effectiveness of the regulations put into place by the council. In
particular, bylaws staff are interested in the number of breaches of bylaws,
and the ability of council staff to have a adequate number of compliance
staff available.
The initial bylaw review has focussed on
ensuring outcomes sought through regulation are appropriate for Auckland, and
on harmonising approaches across the region (thereby supporting harmonisation
of business processes and customer services). The upcoming five year reviews
will build on this and ensure that policy decisions (that underpin the
bylaws) continue to support Auckland becoming the world’s most liveable city.
|
Update on implementation of new bylaws
15. Implementation of new bylaws, and delivery of the consistent
customer service and public outcomes sought from them requires significant
effort and resources, and cost. The Integrated Review and Implementation (IBRI)
programme was established in the middle of 2012 to deliver these changes.
16. The table below shows the current status of implementation projects.
Table 3:
Summary of status and next steps for implementation projects
|
Implementation project name
|
Status and
Progress
|
Link to
bylaw topics / Other comments
|
|
|
Status
|
1-Preparation
|
2-Planning
|
3-Implementation
|
4-Closure
|
|
|
Underway
|
|
|
|
|
|
|
|
Alcohol licensing readiness
|
G
|
|
|
|
|
Licensing fee
bylaw work; See below
|
|
Animals (Stage 1)
|
G
|
|
|
|
|
Now complete
|
|
Electoral Signs
|
G
|
|
|
|
|
Now complete
|
|
Environmental
|
G
|
|
|
|
|
|
|
Facilities
|
G
|
|
|
|
|
|
|
Food safety
|
G
|
|
|
|
|
Now complete
|
|
Health protection
|
G
|
|
|
|
|
Health &
hygiene bylaw and code of practice; See below
|
|
Public safety & nuisance
|
G
|
|
|
|
|
Public safety
& nuisance bylaw
|
|
Revoked bylaws
|
G
|
|
|
|
|
General admin;
Offensive trades; Others
|
|
Signage
|
G
|
|
|
|
|
Signage
|
|
Stormwater
|
G
|
|
|
|
|
Stormwater
|
|
Street trading
|
G
|
|
|
|
|
Trading in public
places policy and bylaw
|
|
Waste management
|
G
|
|
|
|
|
Solid waste
bylaw
|
|
|
|
|
|
|
|
|
|
Proposed future
|
|
|
|
|
|
|
|
Air quality
|
B
|
|
|
|
|
|
|
Alcohol controls
|
B
|
|
|
|
|
|
|
Animals (Stage 2)
|
B
|
|
|
|
|
|
|
Construction
|
B
|
|
|
|
|
|
|
Dog access review
|
B
|
|
|
|
|
|
|
Marine
|
B
|
|
|
|
|
|
|
Transport (AC land)
|
B
|
|
|
|
|
|
Table 4:
Additional comments for particular implementation projects
|
Alcohol licensing readiness
|
On
track
|
G
|
|
The alcohol licensing project will ensure
that the council is able to implement the requirements of the Sale and Supply
of Alcohol Act 2012.
The Ministry of Justice has recently
confirmed the structure for the new fees that will come into force on 18
December 2013. Letters have been sent to the licencees, advising them of
their own cost / risk category that will be used to set fees in future under
the new structure.
Licensing decisions will be made by the
new district licensing committees from 18 December 2013. Appointments have
been made to these committees and training for their members and for staff is
underway.
As noted above it is expected that the
council will seek to set its own fees for licensed premises (as provided for
in the act), and work is underway to prepare these so that they could be in
force from 1 July 2014 (as endorsed by the governing body).
|
|
Health protection
|
On
track
|
G
|
|
The Health Protection Project is
implementing the proposed Health and Hygiene Bylaw and Code of Practice
(which will come into force from 1 July 2014). Staff training is underway,
and the plan for communication with affected licence holders is being prepared.
This includes a range of user-friendly brochures that summarise key
provisions of the health protection code, making it easier for individual
licence holders to understand and follow the key requirements that apply to
the services each one provides.
|
Local board bylaw activities
17. No
additional proposals for local bylaws have been received.
18. Information for
alcohol control (liquor ban) requests and firework bans is noted below. This
includes making provision for several re-occurring alcohol controls for events
that take place annually.
Table 5:
Alcohol control activity for local board areas
|
Local Board
|
Update
|
|
Devonport-Takapuna
|
· A temporary alcohol control has been
put in place for each year’s Takapuna Beach Summer Days Festivals
· A firework ban across the Guy Fawkes
period was put in place for Cheltenham Beach and Balmain Reserve
|
|
Henderson-Massey
|
· The Lake Panorama alcohol control
request is being progressed and further information is being sought from
Police. This includes a request relating to Rhinevale Close Reserve.
|
|
Kaipatiki
|
· An alcohol control has been put in
place for the Beach Haven Wharf and adjacent areas
|
|
Puketepapa
|
· A liquor ban request has been received
relating to Keith Hay Park
|
|
Waitemata
|
· A temporary alcohol control has been
put in place for each year’s Christmas in the Park
· A temporary alcohol control has been
put in place for each year’s Pasifika Festival
· A firework ban across the Guy Fawkes
period was put in place for particular public places along Tamaki Drive
|
|
Whau
|
· A liquor control request has been
received for an expansion of the New Lynn alcohol control
|
Consideration
Local Board Views
19. Local boards are involved in the
review of each bylaw topic (consistent with the review’s principles). This
report does not raise any issues specific to local boards apart from those
already noted above.
Maori Impact Statement
20. This report does not raise any
specific issues relating to Māori. The review of each topic includes
considering whether that topic includes any elements of special interest to
Māori, and if so the appropriate way to seek a greater level of
engagement. Where appropriate, consultation with Māori (on a particular
topic) may be linked to consultation on other related topics.
21. Over the period covered by this
report a number of specific engagements have taken place. This includes two hui
with mana whenua and mataa waaka that covered several bylaws (trading in public
places; stormwater management; signs; navigation safety / life jackets; Animal management;
and Rural fires). A hui was also held to cover alcohol issues in September
2013.
22. Staff are also considering ways
to better support Māori making submissions to formal consultation for
upcoming topics where they have expressed particular interest.
General
23. The recommendations in
this report do not trigger the council’s policy on significance.
Implementation Issues
24. Implementation
issues are addressed as relevant to each topic, as noted above.
Attachments
|
No.
|
Title
|
Page
|
|
a
|
Overview of the timeline for the
programme.
|
25
|
Signatories
|
Authors
|
Andrew Simon Pickering - Manager,
Planning, Policies and Bylaws
|
|
Authorisers
|
Roger King - Manager Bylaws, Business
Development and Support
|
|
Regulatory and
Bylaws Committee
03 December
2013
|
|
|
Regulatory and
Bylaws Committee
03 December
2013
|
|
Proposed lifejacket bylaw and Statement of Proposal
File No.:
CP2013/25695
Purpose
1. This report
recommends that the Regulatory and Bylaws Committee recommends to the governing
body of Auckland Council that it adopts a statement of proposal to replace
clause 2.1 of the Auckland Regional Council Navigation Safety Bylaw 2008 with
an lifejacket bylaw, for formal public consultation (via the special consultative
procedure) in early 2014.
Executive Summary
2. Legislation
requires Auckland Council to review the Auckland Regional Council Navigation
Safety Bylaw 2008 (the bylaw) by 2015. The bylaw regulates navigation safety
issues, including management of moorings, tankers, hazardous cargoes, fuel oil
transfers, signals, dive operations, pilot operations, commercial fast vessels,
and lifejackets.
3. The
Ōtara-Papatoetoe Local Board considered the single issue of compulsory
wearing of lifejackets in small boats in May 2013. Fourteen local boards
(Attachment A) supported this approach. The board recommended that the
Regulatory and Bylaws Committee develop a stand-alone bylaw requiring
lifejackets to be worn at all times in small boats, with some exceptions. This
would require the revocation of the clause 2.1 of the Auckland Regional Council
Navigation Safety Bylaw 2008, that currently regulates the wearing of
lifejackets.
4. The Regulatory
and Bylaws Committee at its meeting of 24 September 2013 agreed, and instructed
staff to separate any proposed lifejacket regulation from the broader review of
the legacy bylaw.
5. The
proposed lifejacket bylaw will regulate the following:
· the carriage of flotation devices
· the compulsory wearing of flotation
devices whilst on vessels larger than six metres (in times of heightened risk)
· the compulsory wearing of flotation
devices whilst on vessels smaller than six metres
· wearing of personal flotation devices by
persons being towed.
and provide for:
· exemptions for safer circumstances (for
example position of vessel, training and events) and practical implementation
· compliance and enforcement.
|
Recommendations
That the Regulatory
and Bylaws Committee:
a) recommend
to the governing body of Auckland Council that it resolves as follows:
i) Auckland
Council proposes to revoke the current clause 2.1 of the Auckland Regional Council Navigation Safety Bylaw 2008 (and
replace it with a lifejacket bylaw).
ii) Under
section 33M of the Maritime Transport Act 1994,
Auckland Council proposes to regulate lifejackets on board all vessels in
Auckland through the proposed bylaw.
iii) Under sections 83, 86 and 87 of the Local Government Act 2002,
Attachment B: Statement of Proposal “lifejacket bylaw” that was considered by
the Regulatory and Bylaws Committee in December 2013 is adopted for public
consultation.
b) agree that the
Manager Policies and Bylaws refer the statement of proposal to the local
boards for their information by 15 January 2014.
c) agree that the
Manager Policies and Bylaws be authorised to make any minor edits or
amendments to the statement of proposal to correct any identified errors or
typographical edits.
|
Discussion
Legal
considerations
6. The Local
Government (Auckland Transitional Provisions) Act 2010 requires the review of
Auckland Regional Council Navigation Safety Bylaw 2008 (the bylaw) by 31
October 2015.
7. The Regulatory
and Bylaws Committee is responsible for recommendations to the governing body
on special consultative procedures for the making, amendment and revocation of
bylaws. The Statement of Proposal addresses the decision-making requirements of
the Local Government Act 2002 (LGA 2002), Local Government (Auckland
Transitional Provisions) Act 2010, and the Local Government (Auckland Council)
Act 2009.
8. Under section 33M of the Maritime Transport
Act 1994, Auckland Council regulates lifejackets on
board all vessels in Auckland through the bylaw. National legislation requires
that a vessel must carry enough lifejackets for every person on board that
vessel. Persons do not have to wear lifejackets, unless the skipper deems it
necessary in situations where there is increased risk (Part 91: Navigation
Safety Rules, published by Maritime New Zealand). However, a local authority
can impose stricter conditions if considered appropriate.
9. The process for
making a bylaw under the LGA 2002 requires that the council determines through
consultation if a bylaw is the most appropriate response to a problem before
proceeding with the special consultative procedure to obtain submissions on its
preferred option. A bylaw must also be in the most appropriate format and must
not give rise to any adverse implications under the New Zealand Bill of Rights
Act 1991. All bylaws must meet the legal requirements as set out in the Bylaws
Act 1910, including not being unreasonable, providing rules that are
proportionate to the issues being addressed and must not be beyond the powers
of the enabling legislation.
Current
Auckland regulation
10. The current
bylaw requires compulsory carriage of an adequate amount of lifejackets on all
vessels for all persons on board. The bylaw requires the wearing of the
lifejackets on the instructions of the person in charge of the vessel and where
tides, river flows, visibility, rough seas, adverse weather, emergencies or
other situations cause danger or a risk to the safety of persons on board. To
date in 2013 a total of 17 infringement notices have been issued by the
harbourmaster relating to the failure to comply with the bylaw. In 2012, 35
infringement notices were issued.
11. The current
bylaw is enforced through the Local Government (Infringement Fees for Offences:
Auckland Regional Council Navigation Safety Bylaw 2008) Regulations 2009 made
on the recommendation of the Minister of Transport. The proposed bylaw will
require a review, update and replacement of these regulations. Indications
from other local authorities that have recently reviewed their navigation
safety bylaws are that the process of making new regulations may take up to
nine months.
Regulation by adjoining regional
authorities
12. The local boards
are not alone in raising concerns about lifejacket wearing. The National
Pleasure Boat Safety Forum has recently made a general recommendation for more
stringent rules on the wearing of lifejackets that align with the current bylaw
requirements of Northland Regional Council (compulsory wearing of Lifejackets
by boats under six metres that are underway, subject to the skipper’s
discretion).
13. Auckland’s two
neighbouring councils, Northland Regional Council and Waikato Regional Council,
have both amended their respective navigation safety bylaws to include stricter
controls on the wearing of lifejackets on small vessels (vessels under six
metres).
14. Northland
Regional Council bylaw requires the compulsory carriage of lifejackets on all
vessels. The wearing of lifejackets is mandatory on all vessels in
circumstances of heightened risk. Lifejackets must also be worn on
non-motorised vessels under six metres when underway, unless the skipper has
expressly given permission lifejackets are not required to be worn.
15. Similarly, the
Waikato Regional Council bylaw requires the compulsory carriage of lifejackets
on all vessels. The wearing of lifejackets is mandatory for vessels under six
metres when underway. The wearing of lifejackets is also mandatory for vessels
six metres and over, if the skipper instructs passengers to wear them. The
skipper of a vessel more than six metres is also responsible for ensuring
everyone on board wears a lifejacket in times of heightened risk.
16. A number of
other councils around New Zealand have also included similar, but varied,
provisions in their respective navigation safety bylaws, including: Southland
Regional Council, Queenstown Lakes District Council, Greater Wellington
Regional Council, Taupo District Council, Hawkes Bay Regional Council.
Issue and
purpose of the proposed bylaw: Drowning incidents
17. There have been
545 drowning deaths in New Zealand for the period 1 January 2008 to 31 December
2012. Boating related incidents accounted for 106 of these deaths within New
Zealand. Of these 106 boating related drowning, 19 occurred in Auckland. All
the boating related drowned persons were male.
18. The
harbourmaster estimates that there currently are 100,000 boat users in
Auckland. This number is likely to increase. It has been reported that in the
seven years to 2007, around 70 per cent of boating fatalities would most likely
have been prevented had those involved been wearing lifejackets.
Table one Statistics for
drowning in Auckland to boating accidents
|
Boat size
|
Number of drownings in Auckland
Jan 2008 – Dec 2012
|
Lifejackets available
but not worn
|
Lifejackets
not available
|
Use of Lifejackets
unknown
|
Lifejackets
worn
|
|
Under 4
metres
|
6
|
4
|
1
|
|
1
|
|
4-6 metres
|
5
|
3
|
-
|
1
|
1
|
|
Over 6 metres
|
1
|
0
|
-
|
-
|
-
|
|
Unknown
|
7
|
5
|
-
|
2
|
1
|
|
Total
|
19
|
12
|
1
|
3
|
3
|
19. The table
indicates that the wearing of a lifejacket culture in Auckland, given impetus
by a compulsory wearing regulation, may have changed 16 devastating outcomes.
Proposed bylaw
20. Regulatory and
Bylaws Committee at their September 2013 meeting recommended (RB/2013/38) that
the council develop a statement of proposal and bylaw to consider the
compulsory wearing of an appropriate flotation device for water users in
Auckland, subject to some practical exemptions.
21. Attachment B is
the statement of proposal including the proposed bylaw.
22. The proposed
bylaw will regulate:
· the carriage of
flotation devices
· the compulsory wearing
of flotation devices for vessels
o over six metres in
length
o six metres and
under in length.
The carriage
of flotation devices (Clause 8)
23. National
legislation requires that a vessel must carry enough lifejackets for every
person on board that vessel. The proposed bylaw enhances those requirements, by
providing stricter regulation. The proposed regulations are discussed below.
The
compulsory wearing of flotation devices.
24. A requirement
that lifejackets be worn at all times on board vessels at sea is simple and
easily understood by all. It effectively addresses the single biggest cause of
loss of life resulting from the use of small vessels. It removes the
discretion of the skipper to determine if the wearing of lifejackets is
required and places the responsibility on the individual, which makes
enforcement more effective.
25. Requiring
lifejackets to be worn will ensure they are clearly visible to any observer,
making enforcement easier than the legacy requirement that may be complied with
by storing lifejackets out of sight.
26. The proposed
regulation will enhance enforcement through community and family pressure on
persons who board these vessels. The proposed requirement also promotes an
existing culture of wearing lifejackets as 50 per cent of the affected boating community
and 59 per cent of all boat users stated that they consider the compulsory
wearing of lifejackets the best safe boating practice in small boats.
Vessels
six metres and over in length. (Clause 9)
27. The current
bylaw requires mandatory carriage of lifejackets for all those onboard a vessel
(some exceptions apply) and the mandatory wearing of lifejackets in times of
heightened risk. The proposed lifejacket bylaw will maintain this approach for
vessels over six metres, as it is considered appropriate for larger vessels
which have a lower drowning figure, compared to vessels six metres and under.
Vessels less than six metres in length.
(Clause 10)
28. Evidence shows
that those most at risk of drowning are those using vessels of six metres or
under. Therefore, the proposed bylaw will make it compulsory to wear a suitable
flotation device by all on board a vessel under six metres and at all times
(including when at anchor). The proposed bylaw has provision for practical
exemptions for persons wearing wetsuits on vessels (divers, kite boarders etc),
life saving boats, surf boarders, organised sporting events and small dinghies
travelling between large boats and the shore.
29. This a new
requirement for Aucklanders and provides for regulation beyond the Maritime
Rules, (published by Maritime New Zealand). The proposed stricter controls will
be a first for a New Zealand regional authority and consistent with national
and international trends towards a compulsory wearing of lifejackets.
Exceptions to
the compulsory wearing of flotation devices whilst on vessels smaller than six
metres. (Clause 11)
30. Due to the
nature and circumstances of the sailing/boating activity, there are instances
that it would be impractical and contrary to common sense to enforce a
compulsory wearing of lifejackets. Therefore, the proposed bylaw has a number
of exemptions to the compulsory rule, in summary:
· a
person wearing wetsuits (divers, kite boarders etc), life saving boats,
surfboarders, organised sporting events and small dinghies travelling between
large boats or the shore
· a
person training or participating in a sporting event (subject the harbourmaster
being satisfied with the users/events safety practices and procedures)
· any
person below deck on board small vessels six metres or under, as it is
impractical to sleep while wearing a lifejacket and a requirement to do so will
be unenforceable
· any
person aged fifteen or older on board a vessel six metres or under, travelling
less than five knots in day light, in sheltered waters.
Consideration
Local Board Views
31. The Ōtara-Papatoetoe Local
Board sought the views of their fellow local boards.
32. The result was that 16 local
boards adopted the same recommendation to the committee over June and July
2013. Two of these boards suggested detail changes to the bylaw wording, in
relation to the exceptions that should apply to the requirement for compulsory
wearing of lifejackets.
33. In addition, two other local
boards expressed support for the idea of compulsory lifejacket wearing. The
remaining boards did not support the proposal. Attachment A contains the
resolutions passed by local boards.
34. The local boards consider that
the arguments for notifying a stand-alone bylaw dealing only with lifejackets
will get the bylaw into force earlier and to bring greater media and public
attention to the merits of lifejacket wearing, which will assist public
education.
35. Local boards will be provided
with the Statement of Proposal for their information by 15
January 2014.
Maori Impact Statement
36. Staff have worked with the
Independent Maori Statutory Board (IMSB), and council’s Te Waka Angamua team
(TWA) team to develop an engagement plan and prepare briefing papers for Māori.
The council invited Mana Whenua representatives to give input to the council’s
proposal to provide stricter regulation for the wearing of lifejackets. Iwi
representatives were invited to attend two hui over 21 and 22 October 2013.
37. The views expressed at the hui
were consistent with the diverse views of other Aucklanders. In particular,
Ngāti Whātua o Kaipara requested that the council consider the strict
wearing of lifejackets.
38. The council recognises and
respects the role of tangata whenua has as kaitiaki for water. The council also
recognises the concerns iwi have about the mauri of water in their local areas.
The proposed bylaw supports the protection of people’s health and safety, and
is not inconsistent with the Māori plan for Tāmaki Makaurau.
39. To ensure that the proposed bylaw
reaches mataāwaka, staff have contacted 40
organisations representing mataāwaka. Staff, with support
from the IMSB and TWA will be assisting iwi and mataāwaka to make
submissions as part of the special consultative procedure early next
year.
Implementation Issues
40. The proposed compulsory
regulation for vessels less than six metres in length will be new to Auckland.
41. The expectation is that the
proposed bylaw will be in place for summer 2014, this will provide staff and
the harbourmaster time to identify the additional resources and associated
costs and report back to the council, if necessary.
Attachments
|
No.
|
Title
|
Page
|
|
a
|
Local Board Resolutions: Bylaw for
compulsory
wearing of lifejackets in small boats
|
33
|
|
b
|
Statement of Proposal and bylaw
|
43
|
Signatories
|
Authors
|
Andrew Simon Pickering - Manager,
Planning, Policies and Bylaws
|
|
Authorisers
|
Roger King - Manager Bylaws, Business
Development and Support
|
|
Regulatory and
Bylaws Committee
03 December
2013
|
|
|
Regulatory and
Bylaws Committee
03 December
2013
|
|
Attachment
B
Statement of Proposal
Personal flotation devices
(Lifejackets)
Bylaw
Ture ā-RoheKahuTāhoe
December 2013
This Statement of Proposal includes:
Executive Summary
Statutory requirements
Reasons for the proposal
Strategic framework
Outcomes sought
Current situation
Relevant bylaw determinations
Perceived problem and options recommended
achieving outcomes sought
New Zealand Bill of
Rights
Proposed revocation of existing legacy
bylaw clauses
Appendix A: Surveys to establish views of
community and stakeholders
Appendix B: Text of proposed bylaw
Version
information:
Filename: Statement
of proposal personal flotation devices FINAL.doc
Contents
Executive
Summary. 3
1 Statutory
Requirements. 4
2 Reasons for the proposal 4
3 Strategic framework, perceived problem, outcome sought. 4
4. Outcomes sought. 6
5 Relevant bylaw determinations. 6
6 Perceived problem and options for achieving outcomes sought. 6
Statement of perceived
problem: Number of drownings. 6
Analysis of perceived problem.. 6
What do we have now?. 8
Regulation and education by other parties. 8
What options were considered to address the perceived problem?. 9
What is the appropriate means to address the problem?. 12
7 New Zealand Bill of Rights Act. 12
8 Revocation of legacy bylaw rule. 13
9 Glossary. 13
Appendix
A: Surveys to establish views of community and stakeholders. 14
Appendix
B: Text of proposed draft bylaw.. 14
Executive Summary
This is a
statement of proposal that reviews the current regulation for the carriage and
wearing of personal flotation devices, which includes lifejackets. It proposes
to extend the current rules for lifejackets so that they must be worn (rather
than only carried) on vessels less than six metres at almost all times.
The current
regulation for personal flotation devices is set out in the former Auckland
Regional Council’s Navigation Safety Bylaw 2008 (the legacy bylaw). This bylaw
largely mirrors national legislation that requires a
vessel to carry enough lifejackets for every person on board that vessel. Under
these rules, people do not have to wear lifejackets, unless the skipper deems
it necessary in situations where there is increased risk (Part 91: Navigation
Safety Rules, published by Maritime New Zealand). The Navigation Safety Rules
allow a local authority to impose stricter conditions if considered
appropriate.
This statement
of proposal addresses the issue of lifejackets, separate from the wider issues
covered in the legacy bylaw. This follows the direction of the Regulatory and
Bylaws Committee from its meeting of 24 September 2013. The separation of any
proposed lifejacket regulation from the broader review of the legacy bylaw was
supported for two reasons. First, because the number and complexity of the
issues to be dealt with in the navigation safety bylaw review could lead to
delays in any proposal to introduce a lifejacket regulation. Second, a
stand-alone bylaw would draw greater public attention, and give greater impetus
to public education to increase lifejacket wearing.
The proposal enables the council to meet
its obligations under the Local Government (Auckland Transitional Provisions)
Act 2010 (including the review of the legacy bylaw by October 2015), the Local
Government Act 2002 and the Maritime Transport Act 1994.
The proposed lifejacket bylaw will regulate the following:
· the carriage of flotation devices
· the compulsory wearing of flotation
devices whilst on vessels larger than six metres (in times of heighted risk)
· the compulsory wearing of flotation
devices whilst on vessels smaller than six metres (at all times)
· wearing of personal flotation devices by
persons being towed.
and provide for:
· exemptions for safer circumstances (for
example position of vessel, training and events) and practical implementation
· compliance and enforcement.
1 Statutory
Requirements
The council has responsibilities in
relation to public safety under the Local Government Act 2002 (LGA 2002) and
the Maritime Transport Act 1994. Sections 145 and 146
of the LGA 2002 and section 33M of the Maritime Transport Act 1994 enables
Auckland Council to make a bylaw in order to:
· protect the
public from nuisance
· protect,
promote and maintain public health and safety
· minimise the
potential for offensive behaviour in public places
· specify
requirements for the carriage and use of personal flotation devices and
buoyancy aids on pleasure craft.
Currently Auckland Council has one bylaw in
relation to maritime safety, the Auckland Regional Council Navigation
Safety Bylaw 2008. In particular, the personal flotation devices provisions of
this bylaw is being reviewed under this proposal.
National legislation requires that a vessel must carry
enough lifejackets for every person on board that vessel (Part 91, Navigation
Safety Rules). A local authority can impose stricter conditions if considered
appropriate.
In addition, Auckland Council is required
to review the Auckland Regional Council Navigation
Safety Bylaw 2008 by 31 October 2015, after which time
this bylaw will be revoked by statute[2].
Auckland Council is undertaking the review in accordance with the requirements
of the LGA 2002.
2 Reasons for the proposal
Auckland has extensive coastlines and
contains expansive harbours - Waitematā, Manukau, southern Kaipara
Harbour, and the Hauraki Gulf, as well as other navigable waters such as the
Orākei Basin and Lake Pupuke. Aucklanders strongly value and make great use
of these waters for many purposes including water sports and fishing.
Keeping our people safe on the water is an
essential part of the continued use of Auckland’s coastal areas and freshwater
bodies. While educational initiatives are in place to address key risk factors
that can lead to injury or fatalities on the water, legislative requirements
can more robustly control unsafe behaviour. The reason for the proposal is to
reduce risk of drowning and to enhance public health and safety, by providing
regulation for the wearing of personal flotation devices.
3 Strategic framework, perceived problem, outcome sought
Strategic framework
Chapter one of the Auckland Plan sets a
priority to, “improve the education, health and safety of Aucklanders, with a
focus on those most in need.” This priority demonstrates the council’s
commitment to improving the health and safety of Aucklanders and in this
proposal those using our unique water environment.
In addition, the council recognises and
respects the role of tangata whenua has kaitiaki for water. The council also
recognises the concerns iwi have about the mauri of water in their local areas.
The proposed bylaw supports the protection of peoples health and safety, and is
consistent with the Māori Plan in this respect.
Figure 1: Purpose of bylaw
(strategic framework)
Perceived problem
The problem has been identified through a review of the
legacy navigation safety bylaw, and advocacy from a number of local boards.
There have been 545 drowning deaths in New Zealand for the period 1 January 2008 to 31 December 2012. Boating related incidents
accounted for 106 of these deaths. Of these 106 boating related drowning, 19
occurred in Auckland[3].
The economic cost to New Zealand of a water
drowning fatality has been estimated as $3.4 million[4]. These cost estimates incorporate the direct costs of drowning and
water-related injuries (such as medical costs), as well as the intangible costs
(such as the income lost to the economy and the social cost to society)[5].
4 How the proposal achieves the outcomes sought
The outcome sought from this
proposal is to reduce the number of people drowning as a result of boating
activities. By providing a regulation making the wearing of lifejackets
compulsory, the council seeks to reduce the number of preventable drownings.
The review leading up to this
proposal has identified the risks associated with the use of vessels without
wearing personal flotation devices and identified the most appropriate means of
addressing the problem. There are a number of non-regulatory and regulatory
mechanisms available to the council to address the problem. A bylaw is one
mechanism, and will not be the most appropriate or only response to every
problem.
5 Relevant bylaw determinations
Auckland Council has considered the most
appropriate way of addressing this problem relating to public safety and the
wearing of lifejackets, as discussed in section 6. This
analysis has considered the approaches used by other councils, covering both
the regulatory approaches in their bylaws and the non-regulatory approaches
used for particular issues. The analysis has also included input from those
within the boating industry and from the public through several surveys that
were conducted in April 2013.
Following that analysis, Auckland Council
considers that:
· a bylaw is
the most appropriate way to address the problems, as identified in section 6 of
this proposal
· the bylaw
contained in appendix B is the most appropriate form of bylaw and should be
notified for public submission
· the bylaw
contained in appendix B does not give rise to and is not inconsistent with the
Bill of Rights Act 1990, as the controls are reasonable and justifiable in the
circumstances as allowed for in section 5 of the act.
It is also considered that the regulation
included in the legacy bylaw is not the most appropriate way to address the
problem identified in section 6 of this report and is not the most appropriate
form, because it is less likely to assist in reducing the number of boat-related
drownings in Auckland than the proposed bylaw. The current clause relating to
personal flotation devices in the (legacy Auckland regional Councils), Auckland
Council Navigation Safety, bylaw should be revoked and replaced.
6 Perceived problem and options for achieving outcomes sought
Statement of perceived problem: Number of
drownings
The perceived problem
is the incidence of preventable drowning that occurs in Auckland waters because
of a failure to wear personal flotation devices on small vessels.
Analysis of perceived problem
The Auckland Council’s harbourmaster
estimates that there are currently 100,000 recreational boat users in Auckland,
with the number likely to increase. While there are no detailed statistics
available, many recreational vessels are six metres or less in length.
Table 1
highlights these drowning statistics in Auckland, in relation to the size of
the vessel used at the time and whether lifejackets were available and/or worn.
Table 1: Auckland drowning statistics of boat related incidents
|
Boat size
|
Number of drownings in Auckland
Jan 2008 – Dec 2012
|
Lifejackets available
but not worn
|
Lifejackets
not available
|
Use of lifejackets
unknown
|
Lifejackets
worn
|
|
Under 4 metres
|
6
|
4
|
1
|
|
1
|
|
4-6 metres
|
5
|
3
|
-
|
1
|
1
|
|
Over 6 metres
|
1
|
0
|
-
|
-
|
-
|
|
Unknown
|
7
|
5
|
-
|
2
|
1
|
|
Total
|
19
|
12
|
1
|
3
|
3
|
The statistics suggest that some
small boat users do not wear personal flotation devices, even when these are
available on board.
The reasons for which people
choose not to wear a personal flotation device are difficult to ascertain,
however it is expected that the main reasons people do not wear a personal
flotation device is due to a combination of the following:
· Lack
of awareness of maritime rules;
· Lack
of awareness of boating safety;
· Cost
involved in purchasing an appropriate personal flotation device;
· Lack
of awareness of the types of personal flotation devices available and what is
appropriate for the person it is intended for;
· Complacent
attitude towards wearing a personal flotation device (the “she’ll be right”
attitude).
The latest report provided by the
National Pleasure Boat Safety - Review of boating incidents 2000-2006[6], showed that of the 105 incidents analysed there were 123
fatalities nationally, which occurred with vessels six metres or shorter.
Maritime New Zealand’s 2007 report - Review of the New Zealand Pleasure Boat
Safety (page 37) is summarised below:
· fatalities
in relation to boat numbers have declined to about half of the year 2000
figure, from about 22 fatalities per year to an average of 12 over the last
three years
· wearing
of lifejackets would have had a high likelihood of preventing a fatality in 66
per cent of accidents
· the
analysis demonstrated that alcohol was a factor in 18 per cent of recreational
fatalities
· European
males aged between 45-54 were the single largest demographic group in
recreational fatalities, although Maori and Pacific peoples are overrepresented
in terms of their component of the general population.
The National Pleasure Boat Safety Forum has
subsequently made a general recommendation for more stringent rules on the
wearing of lifejackets are imposed nation-wide.[7] Specifically, the forum suggests that these more stringent rules
must be targeted to recreational vessels six metres and under. It is reported
that the failure to wear lifejackets in small vessels that are prone to capsize
(those less than six metres in length) remains the main cause of loss of life
in boating accidents.[8]
The public has a good understanding that
lifejackets can prevent drowning. The public also have a reasonable
understanding that lifejackets are an important part of the equipment used when
undertaking water-based activities. Those who have undertaken courses relating
to boating safety such as the ‘Day Skipper’ course and those who are aware of New Zealand maritime law know that lifejackets must be carried on all recreational vessels
and must be worn at times of heightened risk. There is however a considerable
number of recreational boat users who have not undertaken boat safety training
and are not aware of New Zealand maritime law, as well as those who choose not
to wear personal flotation devices in times of heightened risk (heightened risk
includes when a passenger has a poor swimming ability).
In 2013 a total of 17 infringement notices have been issued
by the harbourmaster relating to the failure to comply with the council’s
Navigation Safety Bylaw 200[9]. In
2012 a total of 35 infringement notices were issued.
Auckland Council has considered the
problem, the outcome sought and the appropriate mechanisms to help deliver the
outcome. The analysis has been undertaken with regard to the following:
· the purpose
of the bylaw is to supplement (and not duplicate) the obligations of people
under national legislation
· a bylaw is
only one part of the overall approach to address a perceived problem and to
ensure strategic alignment between the council’s and other agencies’ objectives
of achieving wider community outcomes (i.e. community safety)
· a bylaw to
address a perceived problem needs to be considered in the context of finite
resources within the council and other agencies to administer and enforce it
· a clear,
practical and efficient approach to enforcement is needed.
What do we have now?
National legislation and the legacy
bylaw (clause 2) requires that a vessel must carry enough lifejackets for every
person on board that vessel. Persons do not have to wear a lifejacket, unless
the skipper deems it necessary in situations where there is increased risk.
The Auckland Regional Council Navigation Safety Bylaw 2008
requires compulsory carriage of an adequate number of lifejackets on all
vessels for all persons onboard. This bylaw requires the wearing of the
lifejackets on the instructions of the person in charge of the vessel (“the
skipper’) and when crossing a bar or where tides, river flows, visibility,
rough seas, adverse weather, emergencies or other situations cause danger or a
risk to the safety of persons on board. The assessment of danger and risk
includes considering the mobility and swimming ability of the people on board.
Regulation and education by other parties
The local
boards are not alone in raising concerns about lifejacket wearing. The National
Pleasure Boat Safety Forum has recently made a general recommendation for more
stringent rules on the wearing of lifejackets that align with the current bylaw
requirements of Northland Regional Council (compulsory wearing of Lifejackets
by boats under six metres that are underway, subject to the skipper’s
discretion).
Auckland’s two
neighbouring councils, Northland Regional Council and Waikato Regional Council,
have both amended their respective navigation safety bylaws to include stricter
controls on the wearing of lifejackets on small vessels (vessels under six
metres).
Northland
Regional Council bylaw requires the compulsory carriage of lifejackets on all
vessels. The wearing of lifejackets is mandatory on all vessels in
circumstances of heightened risk. Lifejackets must also be worn on
non-motorised vessels under six metres when underway, unless the skipper has
expressly given permission lifejackets are not required to be worn.
Similarly, the
Waikato Regional Council bylaw requires the compulsory carriage of lifejackets
on all vessels. The wearing of lifejackets is mandatory for vessels under six
metres when underway. The wearing of lifejackets is also mandatory for vessels
six metres and over, if the skipper instructs passengers to where them. The
skipper of a vessel more than six metres is also responsible for ensuring
everyone on board wears a lifejacket in times of heightened risk.
A number of
other councils around New Zealand have also included similar, but varied,
provisions in their respective navigation safety bylaws, including: Southland
Regional Council, Queenstown Lakes District Council, Greater Wellington
Regional Council, Taupo District Council, Hawkes Bay Regional Council.
The Maritime New Zealand (MNZ)
“Don’t be a clown – wear a lifejacket” campaign was first introduced in 2011.
The campaign has since run each summer due to its success in raising awareness
and changing behaviors and attitudes towards wearing a lifejacket. MNZ
encourages people to take the “next step” and make sure that everyone on board
a boat under six metres wears a lifejacket at all times, not just when there’s
heightened risk.
Regulation in Australia
In Australia the issue of wearing a personal flotation
device is regulated by state legislation. In Queensland it is compulsory to
wear a lifejacket when crossing a designated coastal bar in an open boat that
is less than 4.8 metres in length. A person under the age of twelve is
compelled to wear a lifejacket at all times in an open boat that is less than
4.8 metres in length, while it is under way. An open boat is one which does
not have a permanent rigid deckhouse, cabin or other enclosed space suitable
for a person to occupy. In effect the requirement applies to tinnies and
runabouts but not half cabins. The operators and passengers on “personal
watercraft” (sail boarding, kite surfing, canoes, kayaks etc) must wear
lifejackets at all times while underway.
In New South Wales most recreational vessels must carry
lifejackets for each person on board. Skippers are responsible to ensure the
compulsory wearing when the skipper considers a “heightened risk” situation
exists. When crossing coastal bars everyone on board all vessels must wear
lifejackets. This is similar to the current regulation in Auckland.
In addition, in New South Wales children under twelve years
of age at all times in a vessel under 4.8 metres and when in an open area of a
vessel that is between 4.8 metres and 8 metres, that is underway. On all boats
less than 4.8 metres all occupants on enclosed waters must wear lifejackets
when boating at night or when boating alone. The wearing of lifejackets at all
times is also compulsory on open waters and on alpine waters for persons
onboard these small recreational vessels. Lifejackets must be worn at all
times on boats less than 4.8 metres if the vessel is used more than 200 metres
from shore on enclosed waters to transport people or goods between the shore
and a vessel, or between vessels. There are separate requirements for the
compulsory wearing of lifejackets at all times for sail boarding, kite
boarding, canoes and kayaks and for “off the beach” sailing (catamarans and
centre board sailing craft), mostly relating to the use of the vessels more
than 400 metres from shore.
What options were considered to address the perceived
problem?
Three options have been considered by the council as ways of
addressing the perceived problem, as summarised below. The analysis of these
options is informed by a series of surveys that the council carried out over
2013, as outlined in appendix A.
|
Option
|
Advantages
|
Disadvantages
|
|
Option (A)
Rely on existing national legislation – Maritime Rule Part
91: Navigation Safety Rules (the carriage of adequate flotation devices, and
skippers discretion)
(Status quo)
|
· Simple and easily understood
· The majority of the boating community
in Auckland is aware of these requirements
· Recognises the traditional authority
of the skipper of a vessel for the well-being of the crew
· Can be enforced with the available
resource
· Avoids imposing stricter regulation on
persons who currently take the required measures to ensure their own safety
by wearing a personal flotation device.
|
· With growing access to the waters of
Auckland an increasing number of inadequately trained people are likely to
access the waters in unsuitable vessels and safety equipment, increasing the
risks of boating incidents and potentially drownings.
· Less effective for groups where the
role of the skipper is less well understood (potentially including some
migrant communities) or the skipper themself is not training or experienced
in the location or conditions
· Enforcement is difficult (as unable to
tell from a distance whether lifejackets are being carried)
· Not effective at preventing drowning
where incident occurs rapidly (ie no time to find and put lifejackets on)
|
|
Option (B)
Provide stricter regulation that will make the wearing of
flotation devices compulsory on vessels six metres and under at all times (1)
|
· Simple and easily understood
· The majority of responsible boat users
already carry lifejackets (so no additional cost)
· More effective at preventing drowning
where incident occurs rapidly (as lifejackets already worn)
|
· Imposes stricter regulation on persons
who currently take the required measures to ensure their own safety by
wearing a personal flotation device
· May not be followed by some
responsible boat users who already carry lifejackets and exercise adequate
discretion over wearing these
|
|
Option (C)
Promote wearing of flotation devices (education, media)
|
· Can be used in conjunction with
regulatory options
· Does not require additional
enforcement resources
· Avoids imposing stricter regulation on
persons who currently take the required measures to ensure their own safety
by wearing a personal flotation device.
|
· Unlikely to change behavior of those
least likely to carry or wear lifejackets (so may be less effective at
drowning prevention) in short term
|
Note (1): The bylaw is proposed to provide
for limited exemptions including for certain sporting events, or when sleeping
below deck.
Option A:
Rely on existing national legislation – Maritime Rule Part 91: Navigation
Safety Rules (the carriage of adequate flotation devices, and skippers discretion) – Status quo
·
Under this option correctly
fitting lifejackets must be carried for all onboard at all times and worn at
the request of the person in charge (“the skipper”) of the vessel and at times
of heightened risk. Lifejackets must be worn where tides, river flows,
visibility, rough seas, adverse weather, emergencies or other situations cause
danger or a risk to the safety of persons on board. Responsibility for
identifying these situations and enforcing wearing of lifejackets is placed on
the skipper. This is the current requirement in Auckland.
The advantage of this
option is that it is simple and easily understood and the majority of the
boating community in Auckland is aware of the requirements. It recognises the
traditional authority of the skipper of a vessel for the well-being of the
crew. It can be enforced with the available resource, in conjunction with
better education and the raising of awareness amongst those parts of the
community that do not adhere to the current requirements. It is an appropriate
response to the issue of drowning occurring as a result of boating accidents in
Auckland as it avoids imposing stricter regulation on persons who currently
take the required measures to ensure their safety and imposing unnecessary and
far-reaching controls on the majority due to the irresponsible actions of a
very small minority.
The disadvantage is
that with a growing access to the waters of Auckland an increasing number of
inadequately trained persons will access the waters in unsuitable vessels,
increasing the risks of boating accidents. The statistics show a
disproportionate number of persons from migrant communities drowning in Auckland waters during the five year period. Often the role and responsibilities of the
skipper of a boat is not understood nor acknowledged by persons who do not have
a background in boating. Access to the waters of Auckland by migrant
communities for the purpose of fishing or the setting of nets tend to be in
craft that are vulnerable during adverse sea conditions. Persons from migrant
communities may not have experience of local conditions and underestimate the
risks. This may be addressed through improved education and the raising of
awareness.
The disadvantage of the
current requirements are that non-compliance is not easily detected until it is
too late as the mandatory carriage of lifejackets may be done by storage in
unobtrusive places on board. It is also difficult to enforce the mandatory
wearing during adverse conditions due to a lack of resources and the
impossibility of monitoring all vessels in such circumstances.
This option corresponds
to option (1) in the surveys (as outlined in appendix A). There were strong
views for and against this option from the boating community, and low support
from the wider community.
This
option will not deliver the required outcomes and is not recommended.
Option B:
Provide stricter regulation that will make the wearing of flotation devices
compulsory on smaller vessels six metres and under at all times
·
This option requires lifejackets
to be worn by everyone on board a vessel under six metres and under at all
times (including when at anchor).
A limited number of exemptions would be put in place to recognise practicality and
alternatives that equally act to mitigate drowning risk. These may include
persons wearing wetsuits on vessels (divers, kite boarders etc), life saving
boats, surf boarders and at organised sporting events. Also, small dinghies
travelling between large boats and the shore may be excluded. An exemption
should also be provided for sleeping on board small recreational vessels less
than six metres, as it is impractical to sleep while wearing a lifejacket and a
requirement to do so will be largely unenforceable.
The legacy
requirement of mandatory carriage of lifejackets and the compulsory wearing
during times of heightened risk or at the skipper’s instruction would be
retained for vessels six metres and under.
A requirement that lifejackets be worn at all times in
recreational boats six metres and under is simple and easily understood by
all. It effectively addresses the single biggest cause of loss of life
resulting from the use of small recreational craft. It removes the discretion
of the skipper to determine if the wearing of lifejackets is required and
places the responsibility on the individual, which makes enforcement more
effective.
This option is likely to be more
effective at preventing drowning. This is because trouble on the water usually
happens very quickly, often with little time to retrieve a lifejacket and put
it on.
This option has the support of Watersafe Auckland and has
been endorsed by a number of local boards.
Requiring lifejackets to be worn will ensure they are
clearly visible to any observer, making enforcement easier than it is now (as
lifejackets are often stored out of sight). It enhances enforcement through
community and family pressure on persons on board these vessels. Making this a
legal requirement also promotes an existing culture of wearing lifejackets as
fifty percent of the affected boating community and fifty nine percent of all
boat users stated that they consider the compulsory wearing of lifejackets the
best safe boating practice in small recreational boats.
The disadvantage of this option is that it requires a
significant change in the behaviour of the majority of the users of smaller
recreational boats, who currently do not wear lifejackets at all times. It may
also do little in the short term to change the behavior of those most at risk
(i.e. those who do not follow the existing rules by failing to carry
lifejackets or failing to deliberately assess whether the conditions mean they
should be worn).
This option corresponds
to option (4) in the surveys (as outlined in appendix A). There were strong
views for and against this option from the boating community.
Those surveyed face-to-face at the boat
ramp, directly involved with boating, chose this option as either their most
preferred option (48 per cent) or their least preferred option (33 per cent).
These finding are consistent with the People’s Panel survey, which highlighted
that there are polar views for this option.
Wider community views, are that regulation
needed to be increased, with this option being the most preferred option (91
per cent).
This
is the recommended and proposed option.
Option C:
Promote wearing of flotation devices (education, media)
As noted above most people understand that
wearing a lifejacket significantly reduces drowning risk, and many boat users
already carry lifejackets (as required) and actively consider when they should
be worn. Education and media campaigns can support and reinforce those views
and make carrying and wearing lifejackets more common over time.
Maritime New Zealand are responsible for a
number of nation-wide education initiatives, such as the ‘Don’t be a clown -
wear a lifejacket.’ campaign.
The advantages of this type of approach is
that it does not require any increase in enforcement resources and can lead and
build on existing community support. It therefore encourages people to decide
to change their behaviour. Over time as attitudes change greater enforcement
can become more acceptable.
The main disadvantage with this option is
that it is unlikely to change the behaviour of those least likely to carry or
wear lifejackets in the short term.
This
option is unlikely to deliver the outcomes being sought on its own, but could
be used alongside another option.
What is the appropriate means to address the problem?
Option B: Is the most appropriate means to address
maritime safety in respect of the reduction of drowning associated with boat
users.
7 New Zealand Bill of Rights Act
The proposed bylaw is not inconsistent with
the New Zealand Bill of Rights Act 1990. The proposed controls are considered
reasonable, as allowed for in Section 5 of the Act:
the rights
and freedoms contained in this Bill of Rights may be subject only to such
reasonable limits prescribed by law as can be demonstrably justified in a free
and democratic society.
The council has concluded that the proposed
draft bylaw is not inconsistent with section 18 of the New Zealand Bill of
Rights Act 1990 that guarantees freedom of movement and residence, section 21
that guarantees freedom from unreasonable search and seizure, or any other
provision of that Act.
8 Revocation of legacy bylaw rule
The council proposes to revoke clause 2.1
of the Auckland Regional Council Navigation Safety Bylaw 2008 and replace it
with a new Personal flotation device (lifejacket) bylaw.
9 Glossary
|
Personal flotation device
|
means any buoyancy aid that is designed to be worn on the
body that meets:
a) a standard in New Zealand Standard 5826:2005 applicable
to such buoyancy aids, or
b) a national or international standard that the director
is satisfied substantially complies with a standard in New Zealand Standard
5826:2005 applicable to such buoyancy aids.
|
|
Small vessel
|
Means a vessel of six metres length overall or less
|
Appendix A: Surveys to establish views of community and stakeholders
In April 2013, four initial options were identified for the
regulation of lifejacket wearing on recreational vessels less than six metres
in length. Recreational vessels of six metres
or less are targeted as these are most at risk. Larger boats would continue to
be subject to the legacy provision and national maritime rule.
The council commissioned three surveys from 30 April to 30
June 2013 to determine the public view on the issue:
· A People’s Panel survey that targeted
approximately 11,000 members; 3324 persons participated in this survey.
· An online survey on the council’s
webpage. The council sent out letters to over eighty clubs, marinas, sporting
organisations and other interested persons to let them know about the survey.
This survey closed on 30 June 2013. The survey information was also
distributed at the annual Boat Show held on 16 to 19 May 2013. 905 persons
participated in this survey.
· Face-to-face surveys with 192 people, to
assist with obtaining the views of targeted harder-to-reach communities
(Pacific Islanders and Asians) have been conducted on behalf of the council at
boat ramps at Kawakawa Bay, Half Moon Bay and Mangere Bridge; and via surveys
distributed in the community.
The surveys distinguished between the following types of
recreational boats:
· Dinghies, inflatables, tinnies or
similar (motor or rowed);
· Small or medium size yacht/motorboats
under 6m long;
· Large yacht / motorboat more than 6m
long;
· Other boats (eg canoe, dragon boat,
kayak).
The options that were consulted on through the three public
surveys are as follows. These represent an increasing level of regulation.[10]
1) Lifejackets must be worn in times of
heightened risk and on the skipper’s instructions
2) Lifejackets
must be worn when underway, unless the skipper says it is not required
3) Lifejackets
must be worn when underway
4) Lifejackets
must be worn at all times, when underway and when anchored/stopped
The results of the surveys confirm that Aucklanders have
varied but strong views on how the council should be involved in regulating the
wearing of lifejackets. There were distinct differences in preferences amongst
the users of different types of boats.
The results of the survey are summarized below. This graph
shows the most favoured option and the least favoured option across the four
groups noted above:
· Small vessel users (under 6m) – from
People’s Panel
· All boat users – from People’s Panel
· At boat ramps (from face to face
surveys)
· In the community (from face to face
surveys)
Depending on the group being considered, options (1) and (4)
represent both the most and least favoured options.
|
|
|
|
Most favoured option
|
Least favoured option
|
Note that many of the Community respondents
only indicated their first choice (ie. their responses sum to 98 per cent for
most favoured, compared to only 58 per cent for least favoured).
Appendix B: Text of proposed bylaw
Lifejacket Bylaw 2014
Ture ā-RoheKahuTāhoe 2014
(as at xx Month 2014)
Governing Body of Auckland Council
Resolution in Council
DD Month 2014
Pursuant to Maritime Transport Act 1994, the Local
Government Act 2002 and the Local Government (Auckland Council) Act 2009, the
Governing Body of Auckland Council revokes and replaces the Auckland Regional
Council bylaw about personal floatation devices with the following bylaw.
TABLE OF CONTENTS
1. Title 3
2 Commencement 3
3 Application.. 3
4 Purpose. 3
5 Interpretation.. 3
7 Safety of persons on board a vessel 4
8 Carriage of personal flotation devices. 5
9 Wearing of personal flotation devices on vessels
larger than 6 metres. 5
10 Wearing of personal flotation devices on small vessels. 5
11 Exemptions to the compulsory wearing of personal
flotation devices on small vessels …..5
12 Wearing of personal flotation devices by persons being
towed.. 5
13 Compliance with the bylaw.. 6
14 Bylaw breaches. 6
15 Exceptions. 6
16 Revocation.. 6
1. Title
(1) This bylaw is the Lifejacket Bylaw 2014.
2 Commencement
(1) This
bylaw comes into force on 1 July 2014.
3 Application
(1) This
bylaw applies to Auckland.
Part 1
Preliminary provisions
4 Purpose
(1) The purpose of this bylaw is tospecify requirements for
the carriage and use of personal flotation devices and buoyancy aids on vessels
on navigable waters in Auckland.
5 Interpretation
(1) In this
bylaw, unless the context otherwise requires:
Act
means the Maritime Transport Act
1994.
Anchored means the temporary securing of a vessel to the bed
of the waterway by means of an anchor, cable or other device that is removed
with the vessel when it leaves the site or anchorage.
Board
sports meansany board sport,
including sailboarding, kite boardingand surfing where the means of propulsion
is by wind, waves or other natural forces, and where no mechanical means of
propulsion is used.
Director has the same meaning as in section 2
of the Act.
Enforcement officer means a person appointed as an
enforcement officer under section 33G of the Act.
Harbourmasterhas the same meaning as in section 2
of the Act.
Length overall has the same meaning as in
Maritime Rule 40A.
Maritime rule means a rule made pursuant to Part 4
of the Act.
Mooredmeans:
(a) the
securing of any vessel alongside a wharf, jetty or pontoon by means of suitable
mooring ropes, or
(b) the
securing of any vessel to a mooring or anchor, but excludes the temporary
anchoring of a vessel.
Navigable
waters means any waters whether
coastal or inland which are able to be navigated; and includes harbours.
Ownerhasthe
same meaning as in section 2 of the Act.
Paddle
craftmeansa vessel powered only by use of a single or double
bladed paddle as a lever without the aid of afulcrum provided by rowlocks,
thole pins, crutches or like arrangements. A paddle craft includes a kayak.
Person
in charge of a vessel means-
(a) the
master or skipper of the vessel;
(b) in
the absence of the master of the vessel, the owner of the vessel;
(c) in the absence of the master and owner of the
vessel, the person steering the vessel.
Personal flotation device means any buoyancy aid that is designed to
be worn on the bodythat meets:
(a) a
standard in New Zealand Standard 5826:2005 applicable to such buoyancy aids, or
(b) a
national or international standard that the director is satisfied substantially
complies with a standard in New Zealand Standard
5826:2005applicable to such buoyancy aids.
Sailboard
means any type of board that is
propelled by a detachable sail apparatus and operated by a person standing
upright on the board.
Seaworthiness
in relation to any vessel means being
in a fit condition or readiness to safely undertake a voyage within its
designed capabilities.
Sheltered waters are waterswithin 200metres of the shore which are protected from
any wind, currents or waves that could cause the vessel to be blown or swept
out into open waters or into danger, or to be swamped.
Shorewhen referring to distance from shore, means the
water’s edge.
Small vessel means a vessel of six metres length
overall or less;
Surfboard
means any type of board that is
designed to be used for surf riding.
Vessel
means every description of a ship,
boat or a craft used in navigation on the water, whether or not it has any
means of propulsion; and includes a:
(a) barge, lighter, or other like vessel;
(b) hovercraft or other thing deriving full or
partial support in the atmosphere from the reaction of air against the surface
of the water over which it operates;
(c) submarine or other submersible;
(d) seaplane while on the surface of the water;
(e) personal watercraft (jet ski);
(f) raft;
(g) paddle craft; or
(h) kiteboard, sail board or paddle board but
does not include a surf board.
(2) To avoid doubt, compliance with this
bylaw does not remove the need to comply with all other applicable Acts,
regulations, bylaws, and rules of law.
(3) Unless the context
requires another meaning, a term or expression that is defined in the Act or
the maritime rules made pursuant to it and used in this bylaw, but not defined,
has the meaning given by the Act or rule.
(4) Any explanatory notes
and attachments are for information purposes, do not form part of this bylaw,
and may be made, amended and revoked without formality.
(5) The Interpretation Act
1999 applies to this bylaw.
Part 2
Carriage and
wearing of personal floatation devices
7 Safety
of persons on board a vessel
(1) The
person in charge of a vessel is responsible for the safety and wellbeing of
every person on board and for the safe operation of the vessel, including the
carriage and wearing of personal floatation devices by persons on board the
vessel.
(2) No
vessel may leave the shore unless a person in charge of the vessel has been
nominated.
8 Carriage
of personal flotation devices
(1) No person in charge of a vessel shall use
it unless there are sufficient personal flotation devices on board at all times
that the vessel is in use.
(2) Personal
flotation devices must be:
(a) in a readily
accessible location on board the vessel; and
(b) of an appropriate size for each
person on board.
9 Wearing
of personal flotation devices on vessels larger than 6 metres
(1) No
person in charge of a vessel of more than six metres length overall may use
that vessel in circumstances where tides, river flows, visibility, rough seas,
adverse weather, emergencies or other situations cause danger or a risk to the
safety of persons on board, unless every person on board is wearing a properly
secured personal flotation device of an appropriate size for that person.
(2) A person on board a vessel must wear a
properly secured personal flotation device of an appropriate size for that
person if the vessel becomes unseaworthy.
10 Wearing
of personal flotation devices on smallvessels
(1) Every
person on board a small vessel must wear a properly secured personal flotation
device of an appropriate size for that person at all times.
11 Exemptions to
the compulsory wearing of personal flotation devices on small vessels
(1) Clauses 8, 9 and
10 do not apply to:
(a) any sailboarder, paddle boarder or kite
boarder, wearing a wetsuit;
(b) a diver on a small
vessel that is used for recreational diving within five nautical miles of
shore, wearing a full body dive suit;
(c) a person training for
or participating in a sporting event, if the training or the event is
supervised in accordance with the safety system of a sporting organisation
approved by the harbourmaster or the director. The harbourmaster or the director may approve a
sporting organisation if that organisation has in place a safety system that
the harbourmaster or director is satisfied provides an equivalent level of
safety to the carriage or wearing of personal flotation devices;
(d) a sporting event, training activity,
ceremonial or other authorised customary event if-
(i) a support vessel
that is capable of providing adequate assistance in the event of an emergency
remains in the immediate vicinity of the vessel and the vessel or support
vessel or both carry personal flotation devices or buoyancy aids of an
appropriate size for each person on board the vessel; or
(ii) the harbourmaster
or the director has granted prior written exemption.
(2) Clause
10 does not apply to any person that is below deck on a small vessel anchored
in sheltered waters or that is securely moored alongside a wharf, quay, jetty
or pontoon.
(3) Clause
10 does not apply to any person above the age of 15 years on board a small
vessel used to transit in sheltered waters between vessels or the shore during
the hours of daylight. For the avoidance of doubt, except as provided for
under clause 11(1) and (2), a person on board a small vessel aged fifteen years
or below must wear a properly secured personal flotation device of an
appropriate size for that person at all times.
12 Wearing
of personal flotation devices by persons being towed
(1) The
person in charge of the vessel and any person being towed are both responsible
for ensuring that the person being towed wears a properly secured personal flotation device of an appropriate size for
that person.
Part 3
Enforcement
Powers,Offences, Penalties, Exceptions and Revocation
13 Compliance
with the bylaw
(1) The
council may use its powers under the Act and/or the Local Government Act 2002
to enforce this bylaw.
(2) Notwithstanding clause 11, an enforcement officer may instruct any person on board a small vessel
to wear a personal floatation device at any time.
14 Bylaw
breaches
(1) A
person who fails to comply with Part 2 of this bylaw commits a breach of this
bylaw and is liable to a penalty under:
(a)The Act and
maritime rules; and/or
(b) The Local Government
Act 2002 and regulations made pursuant to that Act.
15 Exceptions
(1) A
person is not in breach of this bylaw if that person proves that the act or
omission was in compliance with the directions of an enforcement officer.
16 Revocation
(1) This
bylaw revokes clause 2.1 of the Auckland Regional Council Navigation Safety
Bylaw 2008.
|
Regulatory and
Bylaws Committee
03 December 2013
|
|
Review of the Navigation Safety Bylaw and Statement of
Proposal
File No.:
CP2013/25846
Purpose
1. This report
recommends that the Regulatory and Bylaws Committee recommends to the governing
body that it adopts a statement of proposal that proposes to replace the legacy
navigation safety bylaw with the Navigation Safety Bylaw 2014 through a special
consultative procedure that is to be conducted in early 2014.
Executive Summary
2. Under the Local
Government (Auckland Council) Act 2009 the legacy navigation safety bylaw is
deemed to have been made by the Auckland Council. Like all the bylaws
inherited by Auckland Council, it remains operative until 31 October 2015,
where after it lapses. This presents Auckland Council with an opportunity to
review the legacy bylaw to ensure it meets the requirements of the council and
the community. This includes considering if a bylaw is the most appropriate
method of dealing with the navigation safety issues faced by the council.
3. Auckland
Council is responsible for the management of navigation safety on coastal and
inland water within Auckland. The use of navigable waters of Auckland is
diverse, ranging from recreational use of freshwater to the management of a
major port that accommodate large commercial vessels, including regular ferry
services used for public transport. Auckland Council has to balance the
diverse interests of the users of its waters to while maintaining navigation
safety for all users. The Auckland Plan, the Economic Development Strategy and
the Māori Plan for Tamaki Makarau include the use of Auckland’s harbours
for transport and recreation as an important part of their outcomes. In
addition, the Māori Plan for Tamaki Makaurau has a number of kaitiakitanga
outcomes associated with Auckland’s coastlines, harbours and rivers.
4. An assessment
of the appropriateness of the legacy bylaw and consultation with the various
stakeholders indicate that the bylaw has contributed to navigation safety but
that changes have to be made to provide clarity and improve effectiveness.
While the council has determined that a bylaw is the most appropriate method to
deal with the issues it faces, the proposed bylaw has been redrafted without
major differences from the legacy bylaw. The majority of the proposed changes
are intended to clarify aspects of the legacy bylaw that had caused confusion
in the past, to simplify the wording of the requirements and to improve the
enforcement of the bylaw. The layout of the bylaw is similar to the legacy
bylaw and the navigation safety bylaws of most regional councils.
5. The following
changes in the bylaw are proposed:
• Safety of
persons on board a vessel:
o Mandatory appointment
of a person in charge of a vessel;
o Prohibition on
any person in charge of a vessel being incapacitated due to alcohol or drugs.
• Compulsory carriage on board all vessels
of a means of communication.
• Enhanced mooring site management.
6. A significant
change that is proposed by the council to the legacy bylaw relates to the
compulsory wearing of flotation devices by persons on board small vessels. In
compliance with the resolution of the Regulatory and Bylaws Committee at its
meeting in September 2013 a separate report with a statement of proposal and
proposed life jacket bylaw is submitted simultaneous with this report to the
committee for approval of a separate, parallel consultative procedure.
7. The proposed
bylaw is not inconsistent with the New Zealand Bill of Rights Act 1990 and is
in the most appropriate form. It meets the requirements of section 155 of the
Local Government Act 2002. The council proposes the revocation of the legacy
bylaw and the making of a new navigation safety bylaw.
8. The proposed
Navigation Safety Bylaw 2014 will regulate the following:
· Part 3 - General navigation safety
requirements (clause 7 to 16)
· Part 4 – Activities (clauses 17 to 24)
· Part 5 - Operating requirements (clauses
25 to 36)
· Part 6- Licenses, permits and
administrative matters (clauses 37 to 51)
· Part 7 - Large vessels (clauses 52 to 56)
· Part 8 - Specific restrictions in lanes,
zones and areas (clauses 57 to 63)
· Part 9 - Tankers, hazardous cargoes,
hazardous works, fuel oil transfers and dangerous materials (clauses 64 to 68)
· Part 10 - Pilot and pilot exempt master
operations (clauses 69 to 71)
· Part 11 - Licensing of commercial vessels
for hire or reward (clauses 72 to 74)
· Part 12 - Enforcement powers, offences,
penalties, exceptions, transitional provisions and revocation (clauses 75 to
84)
|
Recommendations
That the Regulatory
and Bylaws Committee:
a) recommend
to the governing body of Auckland Council that it resolves as follows:
i) Under
section 63(1)(c) of the Local Government (Auckland Transitional Provisions)
Act 2010 and 156 of the Local Government Act 2002, the Auckland Council
proposes to revoke the Auckland Regional Council
Navigation Safety Bylaw 2008.
ii) Under section 33M of the Maritime Transport Act 1994, Auckland
Council proposes to regulate navigation safety in Auckland through the
proposed Navigation Safety Bylaw 2014 and control.
iii) Under sections 83, 86 and 87 of the Local Government Act 2002,
Attachment A: Statement of Proposal - Navigation Safety Bylaw that was
considered by the Regulatory and Bylaws Committee on 3 December 2013 be adopted
to be used during the special consultative procedure.
b) agree that the
Manager Policies and Bylaws be authorised to make any minor edits or
amendments to the Statement of Proposal and proposed Navigation Safety Bylaw
2014 to correct any identified errors or typographical edits.
|
Discussion
9. The Local
Government (Auckland Transitional Provisions) Act 2010 requires the review of
Auckland Regional Council Navigation Safety Bylaw 2008 (the bylaw) by 31
October 2015.
10. The Regulatory
and Bylaws Committee is responsible for recommendations to the governing body
on special consultative procedures for the making, amendment and revocation of
bylaws. The statement of proposal addresses the decision-making requirements of
the Local Government Act 2002, Local Government (Auckland Transitional
Provisions) Act 2010 and the Local Government (Auckland Council) Act 2009.
11. In September
2012, changes to the Maritime Transport Act 1994 were put before Parliament in
the Marine Legislation Bill. In October 2013, the Bill passed its final reading
amending the Maritime Transport Act 1994. One of the amendments made, is the
transfer of empowering provisions of local authorities regarding navigation
safety from the Local Government Act 1974 into the Maritime Transport Act 1994
and consequently the making of a new bylaw is done pursuant to the amended
Maritime Transport Act 1994.
12. Issues regulated
by the maritime rules do not require additional regulatory measures by the
council. However, the Maritime Transport Act 1994 and the maritime rules do
enable variation of the regulations by regional authorities to provide for
local conditions. The ability of regional authorities to provide for
additional regulation through a bylaw under the Maritime Transport Act 1994 is
to achieve navigation safety. A bylaw made by the council under this provision
must not be inconsistent with the Resource Management Act 1991 or the Unitary
Plan.
13. The council may make a bylaw, in consultation with the
Director of Maritime New Zealand to—
· regulate
and control the use or management of ships
· regulate
the placing and maintenance of moorings and maritime facilities
· prevent
nuisances arising from the use of ships and seaplanes
· prevent
nuisances arising from the actions of persons and things on or in the water
· reserve
the use of any waters for specified persons, ships, or seaplanes
· in
relation to boat races, swimming races, or similar events,—
o prohibit
or regulate the use of ships
o regulate, or authorise the
organisers of an event to regulate, the admission of persons to specified areas
· regulate
and control the use of anchorages
· prescribe
ship traffic separation and management schemes
· specify requirements for the
carriage and use of personal flotation devices and buoyancy aids on pleasure
craft.[11]
· require
the marking and identification of personal water craft
14. The Auckland Regional Council Navigation Safety Bylaw 2008 is
enforced through infringement offences made under the Local Government
(Auckland Regional Council Navigation Safety Bylaw 2008) Regulations 2009.
Following the review of the legacy navigation safety bylaw, steps will be taken
to ensure a review of the regulations by the responsible Minister.
15. In addition, the council is able to make a bylaw
under section 145 of the Local Government Act 2002 to:
· protect the
public from nuisance
· protect,
promote and maintain public health and safety
· minimise the potential for offensive
behaviour in public places.
16. The process for
making a bylaw under the Local Government Act 2002 requires that the council
determine through consultation if a bylaw is the most appropriate response to a
problem before proceeding with the special consultative procedure to obtain
submissions on its preferred option. A bylaw must also be in the most
appropriate format and must not give rise to any adverse implications under the
New Zealand Bill of Rights Act 1991. All bylaws must meet the legal
requirements as set out in the Bylaws Act 1910, including not being
unreasonable, providing rules that are proportionate to the issues being
addressed and must not be beyond the powers of the enabling legislation.
Current Auckland regulation
17. Auckland Council
is responsible for the management of navigation safety on coastal and inland
water within Auckland. The use of navigable waters of Auckland is diverse,
ranging from recreational use of freshwater to the management of a major port
that accommodate large commercial vessels, including regular ferry services
used for public transport. Auckland Council has to balance the diverse interests
of the users of its waters to while maintaining navigation safety for all
users. The Auckland Plan, the Economic Development Strategy and the Māori
Plan for Tamaki Makarau include the use of Auckland’s harbours for transport
and recreation as an important part of their outcomes. In addition the
Māori Plan for Tamaki Makaurau has a number of kaitiakitanga outcomes
associated with Auckland’s coastlines, harbours and rivers.
18. An assessment of
the efficiency of the legacy bylaw and consultation with the various
stakeholders indicate that the bylaw has been an effective method of ensuring
navigation safety but that changes may be made to improve effectiveness. While
the council has determined that a bylaw is the most appropriate method to deal
with the issues it faces, the proposed bylaw has been redrafted without
significant differences from the legacy bylaw. These changes are intended to
clarify aspects of the legacy bylaw that had caused confusion in the past, to
simplify the wording of the requirements and to improve the enforcement of the
bylaw. The layout of the bylaw is similar to the legacy bylaw and the
navigation safety bylaws of most regional councils.
19. The following
changes in the bylaw are proposed:
• A significant
change that is proposed by the council relates to the compulsory wearing of
flotation devices by persons on board small vessels that is dealt with through
a separate bylaw. In compliance with the resolution of the Regulatory and
Bylaws Committee at its meeting in September 2013 a separate report with a
Statement of Proposal and proposed lifejacket bylaw is submitted to the
committee for approval of a separate, parallel consultative procedure.
• Safety of persons on board a vessel-
o Mandatory
appointment of a person in charge of a vessel;
o Prohibition on
any person in charge of a vessel being incapacitated due to alcohol or drugs.
• Compulsory carriage on board all vessels
of a means of communication.
• Enhanced mooring site management.
20. The proposed
bylaw is not inconsistent with the New Zealand Bill of Rights Act 1990 and is
in the most appropriate form. It meets the requirements of section 155 of the
Local Government Act 2002. The council proposes the revocation of the legacy
bylaw and the making of a new Navigation safety Bylaw 2014.
21. The proposed
Navigation Safety Bylaw 2014 will regulate the following:
· Part 3 - General navigation safety
requirements (clause 7 to 16)
· Part 4 – Activities (clauses 17 to 24)
· Part 5 - Operating requirements (clauses
25 to 36)
· Part 6- Licenses, permits and
administrative matters (clauses 37 to 51)
· Part 7 - Large vessels (clauses 52 to 56)
· Part 8 - Specific restrictions in lanes,
zones and areas (clauses 57 to 63)
· Part 9 - Tankers, hazardous cargoes,
hazardous works, fuel oil transfers and dangerous materials (clauses 64 to 68)
· Part 10 - Pilot and pilot exempt master
operations (clauses 69 to 71)
· Part 11 - Licensing of commercial vessels
for hire or reward (clauses 72 to 74)
· Part 12 - Enforcement powers, offences,
penalties, exceptions, transitional provisions and revocation (clauses 75 to
84)
Consideration
Local Board Views
22. The review of the legacy bylaw
was discussed with local boards at a workshop on 18 July 2013. Whilst comment
was obtained from the local boards on the location and management of moorings,
most of the interest was in the regulation of personal flotation devices on
board small vessels.
23. Local boards expressed similar
concerns to mana whenua around the unauthorized placement of moorings inside
and outside mooring management areas. Concern was also expressed about the
maintenance and use of approved moorings by the users and the impact that this
may have on the safety of nearby moored vessels.
Maori Impact Statement
24. Following the Regulatory and
Bylaws Committee’s resolution in September 2013, officers have worked closely
with the Independent Māori Statutory Board, and the Te Waka Angamua team
within the council to develop an engagement plan and briefing papers for
Māori. The council invited Mana Whenua representatives to give input to
the council’s proposal to regulate navigation safety through a bylaw. Following
the distribution to 19 iwi of an information sheet on the navigation safety
issues, iwi representatives were invited to attend two hui over 21 and 22
October 2013 where they provided their views on the issues regulated by the
legacy bylaw.
25. Representatives at the two hui
were concerned that as tangata whenua, they be consulted on the location of
mooring zones and mooring sites, particularly where these are located in rivers
and lakes or at culturally significant areas. Representatives were also able
to contribute their practical knowledge as owners and operators of boats on
Auckland’s waters on issues such as the wearing of life jackets and the
management of moorings.
26. Iwi representatives also required
that the bylaw provisions relating to the temporary reservation of navigable
waters to explicitly include events of cultural significance to Māori, for
example the TriMaori Umupuia Triathlon to be held on 18 January 2014 at
Umupuia, Maraetai.
27. To ensure that the proposed bylaw
reaches mataāwaka, officers have contacted 40 organisations representing
mataāwaka, offering to engage each marae individually on issues regulated
by the bylaw. With support from the Independent Māori Statutory Board and
Te Waka Angamua, officers will be assisting iwi and mataāwaka to make
submissions as part of the special consultative procedure early next year.
General
28. The Regulatory
and Bylaws Committee has the delegated authority to recommend that a bylaw is
the most appropriate way of addressing the issues relating to public safety and
nuisance. The committee can also recommend that the proposed Auckland Council
bylaw is the most appropriate form of the bylaw and should be recommended to
the governing body for formal public consultation via the special consultative
procedure.
29. The list of issues and the proposed bylaws have been developed
through pre-consultation with elected representatives, internal and external
stakeholders, including the Maritime New Zealand.
Implementation Issues
30. Except for the compulsory wearing
of personal flotation devices on board small vessels, most of the issues
covered in the proposed Navigation Safety Bylaw 2014 were included in the
legacy bylaw. There is expected to be little additional impact on the harbourmaster
in enforcing the proposed navigation safety bylaw, excluding the regulation of
life jackets.
The proposed compulsory regulation of personal flotation
devices on board small vessels will be new to Auckland, and to be effective the
implementation will require a reallocation of resources of enforcement and
education.
Attachments
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No.
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Title
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Page
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a
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Statement of Proposal - Navigation
Safety Bylaw 2014 (Ture ā-Rohe Urungi Āhuru 2014)
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71
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b
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Navigation Safety Bylaw 2014 - Ture
ā-Rohe Urungi Āhuru 2014
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85
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c
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Controls made by the Harbourmaster
under the Navigation Safety Bylaw 2014
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113
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Signatories
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Authors
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Andrew Simon Pickering - Manager,
Planning, Policies and Bylaws
Helgard Wagener - Team leader,
Policies and Bylaws
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Authorisers
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Roger King - Manager Bylaws, Business
Development and Support
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Regulatory and
Bylaws Committee
03 December
2013
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Regulatory and
Bylaws Committee
03 December
2013
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Regulatory and
Bylaws Committee
03 December
2013
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Regulatory and
Bylaws Committee
03 December
2013
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Regulatory and
Bylaws Committee
03 December
2013
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Regulatory and
Bylaws Committee
03 December
2013
|
|
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Regulatory and
Bylaws Committee
03 December
2013
|
|
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Regulatory and
Bylaws Committee
03 December
2013
|
|
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Regulatory and
Bylaws Committee
03 December
2013
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Establishing hearing panels for bylaws on navigation
safety, lifejackets, outdoor fires, stormwater management, air quality and
trading in public places
File No.:
CP2013/26050
Purpose
1. The purpose of this report is to
request the appointment of hearings panels for the review of public submissions
and to hold public deliberations on five proposed bylaws (navigation safety,
lifejackets, outdoor fires, stormwater management, air quality and trading in
public places).
Executive Summary
2. The council has established a
bylaw review programme to review and consolidate the bylaws that were inherited
from the former councils.
3. The following bylaw reviews are
expected to shortly be reported to the Regulatory and Bylaws Committee, and the
Committee is asked to appoint hearings panels for them:
· Navigation
safety (covering safe use of the waters around Auckland including safe
boating, marine navigation and reserving areas for particular purposes), for which
up to five days may be needed for hearings and deliberations (together with the
lifejackets bylaw)
· Lifejackets
(covering the carriage and wearing of personal flotation devices or Lifejackets
on vessels), for which up to five days may be needed for hearings and
deliberations (together with the navigation safety bylaw)
· Outdoor
fires (covering fire safety matters, fire bans and fire permits and use of
fires for various rural purposes), for which up to three days may be needed for
hearings and deliberations
· Stormwater
(covering water quality, asset standards and protection and ecological
protection), for which up to three days may be needed for hearings and
deliberations
·
Air quality (Covering the use of domestic indoor fires (pre 2005 solid fuel
burners))
· Trading
in public places (covering use of public space for commercial or similar
purposes such as café tables, charity collections and busking), for which up to
four days may be needed for hearings and deliberations
4. It is recommended that three to
five people be appointed to each panel.
5. A single panel is suggested for
the navigation safety and Lifejacket topics as it is expected there will be
some overlap in submissions on these issues.
6. A joint panel for Auckland
Council and Auckland Transport is suggested for the trading in public places
bylaw as it is expected that there will be two bylaws for this topic (one for
each body). Accordingly, the committee may wish to appoint three people to this
panel (allowing Auckland Transport to appoint further people).
|
Recommendations
That the Regulatory
and Bylaws Committee:
a) agree to:
i) appoint a Hearing Panel of up
to five elected members to hear submissions, deliberate and make
recommendations to the governing body of Auckland Council on the review of
the navigation safety and life jacket bylaws (including any proposed new
bylaws).
ii) appoint a Hearing Panel of up
to five elected members to hear submissions, deliberate and make
recommendations to the governing body of Auckland Council on the review of
the outdoor fires bylaws (including any proposed new bylaw).
iii) appoint a Hearing Panel of up
to five elected members to hear submissions, deliberate and make
recommendations to the governing body of Auckland Council on the review of
the stormwater management bylaws (including any proposed new bylaw).
iv) appoint a Hearing Panel of up
to five elected members to hear submissions, deliberate and make
recommendations to the governing body of Auckland Council on the review of
air quality issues (including any proposed new bylaw).
v) appoint three elected members
to the joint hearings panel with Auckland Transport to hear submissions,
deliberate and make recommendations to the governing bodies of both Auckland
Council and Auckland Transport on the review of their respective trading in
public places bylaws (including any new bylaws).
vi) note that Auckland Transport
may appoint further members to the hearings panel referred to in (v).
vii) appoint one person as
chairperson for each of the panels established by recommendations (i) to (v).
b) agree that in the event that
any member appointed by the committee under resolutions (i) to (v) is
unavailable, the chairperson of the Regulatory and Bylaws Committee be
delegated the power to make a replacement appointment.
c) request that the chairperson of
the Regulatory and Bylaws committee is delegated the power to make
appointments to those panels noted in recommendation (a) above and that the
names of the panel members are presented to the Regulatory and Bylaws
Committee at the next committee meeting for the committee’s endorsement.
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Discussion
The bylaw review programme and this committee
7. The bylaw review programme is
reviewing the legacy bylaws (that is, the bylaws inherited from the former
councils) across approximately 30 topics. The Regulatory and Bylaws Committee
has ownership of the review and implementation of these bylaws and can also
establish hearings panels as these are needed alongside formal consultation on
proposed bylaw changes.
8. The Regulatory and Bylaws
Committee has the delegations to appoint a hearing panel to hear public
submissions on the review and any proposed bylaw, and report to the governing
body their recommendations as a result of those public submissions.
9. These panels support the council
carrying out the special consultative procedure, which provides for submitters
to have the opportunity to have their submissions heard at a public meeting.
10. A hearings panel may hear
submissions, consider the points made and make recommendations to the relevant
decision-maker for each of the bylaw reviews.
Topics and panels
11. Hearings panels are requested for
the following five topics. Estimates for the duration of hearings and
deliberations are given for each topic, based on experience from the former
councils and from bylaw reviews completed by Auckland Council. The written
submission period (one month) and hearings and deliberation days for these
topics will be programmed across the first half of next year in conjunction
with other commitments. Those other commitments include in particular the
annual plan hearings which are planned to take place over late March to early
April.
Navigation
safety bylaw review
12. A proposal from the navigation
safety bylaw review is planned to be reported to the December meeting of the
Regulatory and Bylaws Committee. The written submission period is currently
planned to start in March 2014 which would support hearings and deliberations
being scheduled in late May 2014 (following analysis of those submissions).
13. The oral submissions are expected
to take up to two days (including one day for local boards to present their
views), with another day needed for the panel to deliberate on the submissions.
It is recommended that this hearings panel has up to five members.
14. It is recommended that a single
panel be established for this and the Lifejackets bylaw review as it is likely
that several submitters will address matters that cover both reviews.
Lifejacket
bylaw review
15. A proposal from the lifejacket
bylaw review is planned to be reported to the December meeting of the
Regulatory and Bylaws Committee. The written submission period is currently
planned to start in March 2014 which would support hearings and deliberations
being scheduled in late May 2014 (following analysis of those submissions).
16. The oral submissions are expected
to take up to two days (including time for local boards to present their
views), with another day needed for the panel to deliberate on the submissions.
It is recommended that this hearings panel has up to five members.
17. It is recommended that a single
panel be established for this and the navigation safety bylaw review as it is
likely that several submitters will address matters that cover both reviews.
Outdoor fires
bylaw review
18. A proposal from the outdoor fires
bylaw review is planned to be reported to the February 2014 meeting of the
Regulatory and Bylaws Committee. The written submission period is currently
planned to start in May 2014 which would support hearings and deliberations
being scheduled in July 2014 (following analysis of those submissions).
19. The oral submissions are expected
to take one day (including time for local boards to present their views), with
another day needed for the panel to deliberate on the submissions. It is
recommended that this hearings panel has up to five members.
Stormwater
bylaw review
20. A proposal from the Stormwater
bylaw review is planned to be reported to the February 2014 meeting of the
Regulatory and Bylaws Committee. The written submission period is currently
planned to start in May 2014 which would support hearings and deliberations
being scheduled in July 2014 (following analysis of those submissions).
21. The oral submissions are expected
to take up to two days (including time for local boards to present their
views), with another day needed for the panel to deliberate on the submissions.
It is recommended that this hearings panel has up to five members.
Air quality
22. The council has a responsibility
to manage air quality to protect human health and the environment. In recent
years, air quality in Auckland has exceeded health-based standards and
guidelines for air borne particulates. Indoor home heating fires (domestic
fires) are a major source of air borne particulate in the Auckland region.
23. The oral submissions are expected
to take up to two days (including time for local boards to present their
views), with another day needed for the panel to deliberate on the submissions.
It is recommended that this hearings panel has up to five members.
Trading in
public places bylaw review
24. A proposal from the trading in
public places bylaw review is planned to be reported to the February 2014
meeting of the Regulatory and Bylaws Committee. The written submission period is
currently planned to start in May 2014 which would support hearings and
deliberations being scheduled in July 2014 (following analysis of those
submissions).
25. The oral submissions are expected
to take up to three days (including time for local boards to present their
views), with another day needed for the panel to deliberate on the submissions.
It is recommended that this hearings panel has up to five members.
26. Auckland Transport has
jurisdiction over matters covered in this bylaw review, that take place on the
Auckland transport system (refer Local Government (Auckland Council) Act 2009,
part 4). Auckland Transport will also appoint hearings panel members to support
their process regarding the final form of any new bylaw (as applies to their jurisdiction).
As a consistent approach across the two bylaws is being sought, joint hearings
should be held with recommendations being made to both Auckland Council and
Auckland Transport.
Consideration
Local Board Views
27. The bylaw development process
includes consultation with local boards. Local boards will be informed of
formal consultation on the bylaws and will have an opportunity to provide their
comments as part of that process.
28. It is noted that several local
boards have expressed their support for stronger regulation on wearing
lifejackets being included in a lifejackets bylaw.
Maori Impact Statement
29. The appointment of a hearings
panel does not require any specific consultation. Each of the bylaw reviews
covered in this report has considered the impact on Māori as part of that review process.
Attachments
There are no
attachments for this report.
Signatories
|
Authors
|
Andrew Simon Pickering - Manager,
Planning, Policies and Bylaws
|
|
Authorisers
|
Roger King - Manager Bylaws, Business
Development and Support
|
Accident Compensation Corporation Review of the Economic and
Social Costs of Drowning Fatalities and Water-related Injuries Compared to
Prevention
October 2009
