I hereby give notice that an ordinary meeting of the Hearings Committee will be held on:
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Date:
Time:
Meeting Room:
Venue:
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Tuesday, 21
June 2016
2.00pm
Level 26
135 Albert Street
Auckland
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Hearings Committee
OPEN AGENDA
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MEMBERSHIP
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Chairperson
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Cr Linda Cooper, JP
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Deputy Chairperson
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Cr Penny Webster
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Members
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Cr Anae Arthur Anae
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Cr Chris Darby
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Cr Calum Penrose
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Mr David Taipari
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Cr Wayne Walker
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Mr Glenn Wilcox
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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 3 members)
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Louis Dalzell
Democracy Advisor
15 June 2016
Contact Telephone: (09) 890 8135
Email: louis.dalzell@aucklandcouncil.govt.nz
Website: www.aucklandcouncil.govt.nz
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The Hearings Committee will have responsibility for:
·
Decision making (including through a hearings
process) under the Resource Management Act 1991 and related legislation;
·
Hearing and determining objections under the Dog
Control Act 1996;
·
Decision making under the Sale and Supply of
Alcohol Act 2012
·
Hearing and determining matters regarding
drainage and works on private land under the Local Government Act 1974 and
Local Government Act 2002. This delegation cannot be sub-delegated;
·
Hearing and determining matters arising under
bylaws, including applications for dispensation from compliance with the
requirements of bylaws;
·
Receiving recommendations from officers and
appointing independent hearings commissioners to a pool of commissioners who
will be available to make decisions on matters as directed by the Hearings
Committee;
·
Receiving recommendations from officers and
deciding who should make a decision on any particular matter including who
should sit as hearings commissioners in any particular hearing;
·
Monitoring the performance of decision makers
including responding to complaints made about decision makers;
·
Where decisions are appealed or where the
Hearings Committee decides that the Council itself should appeal a decision,
directing the conduct of any such appeals; and
·
Adopting a policy or policies and making any
necessary sub-delegations relating to any of the above areas of responsibility
to provide guidance and transparency to those involved.
Not all decisions under the Resource Management Act 1991 and
other enactments require a hearing to be held and the term “decision making” is
used to encompass a range of decision making processes including through a
hearing. “Decision making” includes, but is not limited to, decisions in
relation to applications for resource consent, plan changes, notices of requirement,
objections, existing use right certificates and certificates of compliance and
also includes all necessary related decision making.
In adopting a policy or policies and making any
sub-delegations, the Hearings Committee must ensure that it retains oversight
of decision making under the Resource Management Act 1991 and that it provides
for Councillors to be involved in decision making in appropriate circumstances.
For the avoidance of doubt, these delegations confirm the
existing delegations (contained in the Chief Executive’s Delegations Register)
to hearings commissioners and staff relating to decision making under the RMA
and other enactments mentioned below but limits those delegations by requiring
them to be exercised as directed by the Hearings Committee.
Relevant legislation includes but is not
limited to:
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Resource Management Act 1991;
Building Act 2004;
Local Government Act 2002;
Local Government Act 1974;
Local Government (Auckland Council Act) 2009;
Local Government (Auckland Transitional Provisions) Act 2010;
Dog Control Act 1996;
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Fencing of Swimming Pools Act
1987;
Gambling Act 2003;
Sale of Liquor Act 1989;
Sale and Supply of Alcohol Act 2012
Health Act 1956;
Biosecurity Act 1993;
Related Regulations; and
Council Bylaws.
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Exclusion
of the public – who needs to leave the meeting
Members of the public
All members of the public must leave the
meeting when the public are excluded unless a resolution is passed permitting a
person to remain because their knowledge will assist the meeting.
Those who are not members of the public
General principles
·
Access to confidential information is managed on a “need to know”
basis where access to the information is required in order for a person to
perform their role.
·
Those who are not members of the meeting (see list below) must
leave unless it is necessary for them to remain and hear the debate in order to
perform their role.
·
Those who need to be present for one confidential item can remain
only for that item and must leave the room for any other confidential items.
·
In any case of doubt, the ruling of the chairperson is final.
Members of the meeting
·
The members of the meeting remain (all Governing Body members if
the meeting is a Governing Body meeting; all members of the committee if the
meeting is a committee meeting).
·
However, standing orders require that a councillor who has a
pecuniary conflict of interest leave the room.
·
All councillors have the right to attend any meeting of a
committee and councillors who are not members of a committee may remain,
subject to any limitations in standing orders.
Independent Māori Statutory Board
·
Members of the Independent Māori
Statutory Board who are appointed members of the committee remain.
·
Independent Māori Statutory Board
members and staff remain if this is necessary in order for them to perform
their role.
Staff
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All staff supporting the meeting (administrative, senior
management) remain.
·
Other staff who need to because of their role may remain.
Local Board members
·
Local Board members who need to hear the matter being discussed
in order to perform their role may remain. This will usually be if the matter
affects, or is relevant to, a particular Local Board area.
Council Controlled Organisations
·
Representatives of a Council Controlled Organisation can remain
only if required to for discussion of a matter relevant to the Council Controlled
Organisation.
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Hearings
Committee
21 June 2016
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ITEM TABLE OF CONTENTS PAGE
1 Apologies 7
2 Declaration of Interest 7
3 Confirmation of Minutes 7
4 Local Board Input 7
5 Extraordinary Business 7
6 Notices of Motion 8
7 Appointment of independent commissioners: application for
resource consent to expand a chicken broiler farm at 214 and 222A South Head
Road, Parkhurst 9
8 Appointment of independent commissioners: application for
resource consent to carry out additions and convert to a childcare centre, an
existing residential building at 159 Victoria Road, Devonport. 25
9 Designation of independent commissioners as duty commissioners
to determine resource consent applications and section 357 objections 41
10 Noting the urgent decision of 31 May 2016 to appoint hearing
commissioners 45
11 Objection to the issue of a noise abatement notice 57
12 Consideration of Extraordinary Items
PUBLIC EXCLUDED
13 Procedural Motion to Exclude the Public 61
C1 Resource Consent Appeals: Status Report 21 June 2016 61
C2 Noting the urgent decision of 7 June 2016: Mitchell v Auckland
Council 61
Apologies from Mayor LCM Brown and Deputy Mayor PA Hulse have been
received.
2 Declaration of Interest
Members are reminded of the need to be vigilant to stand aside from
decision making when a conflict arises between their role as a member and any
private or other external interest they might have.
At the close of the agenda no requests for declarations of interest
had been received.
3 Confirmation of Minutes
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That the Hearings Committee:
a)
confirm the ordinary minutes of its meeting,
held on Monday, 23 May 2016, including the
confidential section, as a true and correct record.
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4 Local Board Input
Standing Order 6.2 provides for Local Board Input. The Chairperson
(or nominee of that Chairperson) is entitled to speak for up to five (5)
minutes during this time. The Chairperson of the Local Board (or nominee of
that Chairperson) shall wherever practical, give one (1) day’s notice of
their wish to speak. The meeting Chairperson has the discretion to decline any
application that does not meet the requirements of Standing Orders.
This right is in addition to the right under Standing Order 6.1 to
speak to matters on the agenda.
At the close of the agenda no requests for local board input had
been received.
5 Extraordinary Business
Section 46A(7) of the Local Government Official Information and
Meetings Act 1987 (as amended) states:
“An item that is not on the agenda for a meeting may be dealt with
at that meeting if-
(a) The local authority by resolution so
decides; and
(b) The presiding member explains at the
meeting, at a time when it is open to the public,-
(i) The reason why the item is not on the agenda; and
(ii) The reason why the discussion of the item
cannot be delayed until a subsequent meeting.”
Section 46A(7A) of the Local Government Official Information and
Meetings Act 1987 (as amended) states:
“Where an item is not on the agenda for a meeting,-
(a) That item may be discussed at that meeting
if-
(i) That item is a minor matter relating to
the general business of the local authority; and
(ii) the presiding member explains at the
beginning of the meeting, at a time when it is open to the public, that the
item will be discussed at the meeting; but
(b) no resolution, decision or recommendation
may be made in respect of that item except to refer that item to a subsequent
meeting of the local authority for further discussion.”
6 Notices of Motion
At the close of the agenda no requests for notices of motion had
been received.
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Hearings
Committee
21 June 2016
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Appointment of
independent commissioners: application for resource consent to expand a chicken
broiler farm at 214 and 222A South Head Road, Parkhurst
File No.: CP2016/11834
Purpose
1. To appoint commissioners to make
decisions under section 104 of the Resource Management Act 1991 (the RMA) on a
publicly notified resource consent application to expand an existing chicken
broiler farm at 214 and 222A South Head Road, Parkhurst.
Executive
summary
2. The council has received an
application for land use consents and discharge permits by D B Chicks 2014
Limited to expand its existing broiler chicken farm at 214 and 222A South Head
Road, Parkhurst. The existing farm comprises ten, 5 m high, 132 x 18 m sheds
accommodating a total of 400,000 chickens, although the existing resource
consents for the site allow up to 464,000 chickens. The application proposes to
build four additional sheds (same size) with associated site works and increase
the total number of chickens on the farm to 560,000 chickens.
3. The application was publicly
notified and attracted 43 submissions, 37 in opposition and 6 in support. The
application is regarded by staff as contentious and as defined by the Hearings
Committee Policy, the Hearings Committee is responsible to determine the
decision makers for such matters. The Hearings Committee is therefore invited
to appoint commissioners to hear and determine the application under section
104 of the Resource Management Act 1991.
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Recommendation/s
That the Hearings Committee:
a) appoint three independent
commissioners and a local board member to hear submissions and determine the
application by D B Chicks 2014 Ltd to expand an existing chicken broiler farm
at 214 and 222A South Head Road, Parkhurst, under section 104 of the Resource
Management Act 1991 (references L66397, REG66399, REG66400, and REG66401).
b) delegate authority to the
Chairperson of the Hearings Committee to make replacement appointments should
any of the independent commissioners in (a) above be unavailable.
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Comments
4. D B Chicks 2014 Limited (the
applicant) owns and operates a broiler chicken farm on a property at 214 and
222A South Head Road, Parkhurst. The farm comprises 400,000 chickens contained
in ten sheds each holding 40,000 chickens. The existing resource consents in
place for the farm allow it to hold up to 464,000 chickens in these ten sheds.
5. The site is located on the south
Kaipara, roughly 3 km northwest of Parakai. The site and surrounding area is
zoned General Rural under the operative district plan and Rural Production
under the Proposed Auckland Unitary Plan (PAUP). The surrounding land uses are
generally pastoral farms but there are also around 25 residential dwellings
within a 1 km radius of the farm. The Haranui Marae is located
approximately 2 km northwest of the farm. A site location plan and aerial photo
can be found at Attachment A.
6. In December 2015 the council
received an application for resource consents from the applicant to construct
an additional four sheds to enable the farm to expand its capacity to 560,000
chickens. The existing and proposed sheds each measure 132 m long by 18 m wide
and are approximately 5 m high. The four new sheds will add around 9,000 m2
of additional building footprint to the site. Associated site works for the new
sheds include importing approximately 19,000 m3 of fill to create
level building platforms. A plan of the proposed farm can be found at Attachment
B.
7. Resource consents are required
due to the size of the buildings, the increase in impervious surface and
stormwater discharge, the amount of earthworks, additional discharges to air
and wastewater discharge. The council’s application reference numbers are L66397,
REG66399, REG66400, and REG66401.
8. The applicant asked for the
application to be publicly notified and this occurred in April 2016. Submissions
closed on 10 May with 6 submitters in support and 37 opposed.
9. The main issues are odour,
traffic movements, and rural character and amenity.
Consideration
General
10. The
Hearings Committee has adopted a hearings policy that, at section 4.2, refers
to “Allocation of decision making responsibility between elected members,
independent commissioners and staff”. Section 4.2.2 states that in deciding
who is the most appropriate decision maker, the Hearings Committee will take
into account recommendations from council officers, the significance of a
particular matter and whether it is contentious.
11. The
application falls within the policy’s definition of contentious due to the
degree of interest from the local community and recent litigious history for
similar large-scale chicken farms.
12. Therefore,
it is recommended that the Hearings Committee in accordance with its policy
appoint the commissioners as decision-makers for this application including one
local board member (from an adjoining local board area). It is recommended that
the appointed commissioners include those with planning, odour and legal
expertise.
Local
board views and implications
13. The Rodney Local Board noted the
application was applied for on a notified basis. It did not provide any
comments on the proposal during the submission period.
Māori
impact statement
14. Fourteen iwi groups were
consulted as part of the council’s Cultural Impact Assessment (CIA) engagement
process, of which four confirmed no further action was necessary. A fifth,
Ngati Whatua o Kaipara, confirmed that a site visit was desired and later
provided a CIA as a submission during the notification process. A copy of the
submission can be found at Attachment C.
15. Ngati Whatua o Kaipara
acknowledges the existing consents for the farm but opposes its expansion through
the current application. It notes the site is located on the Paparona Land
Block, which is of significance to the iwi group and that the adjacent Kaipara
Harbour provides spiritual sustenance and is the food source for Ngati Whatua.
It raises several issues in its submission/CIA:
· further
stormwater discharges into the Kaipara Harbour
· the
extraction of ground water to service the expansion
· visibility
of the operation from Haranui Marae
· emissions
to air
· effects
of increased truck movements
· the
welfare of chickens on the site
· the
impact of the operations on Parakai as a tourist destination
· cultural
monitoring of earthworks
16. The application will be assessed
in accordance with Part 2 of the RMA which requires the council to recognise
and provide for the relationship of Maori and their culture and traditions with
their ancestral lands, water, sites, waahi tapu, and other Taonga; to have
particular regard to kaitiakitanga and the ethic of stewardship; and to take
into account the principles of the Treaty of Waitangi when making its decision.
Implementation
17. There are no financial or legal
implications beyond those normally associated with the appointment of hearing
commissioners. The costs of the hearing commissioners will be met by the applicant.
Attachments
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No.
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Title
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Page
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aView
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Site location plan and aerial photo
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13
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bView
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Plan of proposal
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15
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cView
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Submission from Ngati Whatua o Kaipara
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17
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Signatories
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Authors
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Gerard McCarten - Principal Planner Hearings and
Resolutions
Robert Andrews - Resolutions Team Manager
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Authorisers
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Ian Smallburn - General Manager Resource Consents
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Hearings
Committee
21 June 2016
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Hearings Committee
21 June 2016
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Hearings Committee
21 June 2016
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Hearings Committee
21 June 2016
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Appointment of independent commissioners: application
for resource consent to carry out additions and convert to a childcare centre,
an existing residential building at 159 Victoria Road, Devonport.
File No.: CP2016/12203
Purpose
1. To appoint commissioners to hear
and make decisions under section 104 of the Resource Management Act 1991 (the
RMA) on a publicly notified resource consent application.
Executive
summary
2. The council has received an
application from Butterbee Childcare Limited for land use consents. The
application is to carry out additions and alterations to an existing
residential building at 159 Victoria Road, Devonport, and convert it to a
childcare centre catering for up to 50 children. The conversion will involve
carrying out alterations to the existing building as well as constructing a
large addition to the rear. The site is on a main road within Devonport, with a
built heritage zone under district plan and Built Environment: Special
Character overlay under the PAUP. The centre will operate 7am to 7pm Monday to
Friday, employ 7 staff members and provide 11 on-site parking spaces.
3. The application was publicly
notified and attracted 690 submissions, 111 in opposition and 579 in support,
of which 83 submitters wish to be heard. The application is regarded by staff
as contentious and as defined by the Hearings Committee Policy, the Hearings
Committee is responsible to determine the decision makers for such matters. The
Hearings Committee is therefore invited to appoint commissioners to hear and
determine the application under section 104 of the Resource Management Act
1991.
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Recommendation/s
That the Hearings Committee:
a) appoint three independent
commissioners and a local board member to hear submissions and determine the
application by Butterbee Childcare Limited to carry out additions and
alterations to an existing building and operate a childcare centre at 159
Victoria Road, Devonport, under section 104 of the Resource Management Act
1991 (references LN-2142117),
b) delegate authority to the
Chairperson of the Hearings Committee to make replacement appointments should
any of the independent commissioners in (a) above be unavailable.
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Comments
4. In November 2015, the council
received a resource consent application from Butterbee Childcare Limited (the
applicant) for resource consents to operate a childcare centre catering for up
to 50 children at 159 Victoria Road, Devonport.
5. The site currently contains a
large early-Edwardian style return bay villa with various additions, mostly to
the rear. A site location plan and aerial photo can be found
at Attachment A.
6. The proposal
involves constructing a large addition to the rear of the building in a style
to complement the original dwelling. The existing building would be altered
internally to accommodate the requirements of the proposed childcare centre operation. The centre would cater for up to 50 children and
employ 7 staff. Up to 11 on-site parking spaces would be provided at the front
of the property. Plans of the proposal can be found at Attachment B.
7. Resource consents are required
due to the size of the childcare centre, a car parking shortfall, parking and
loading arrangements, noise, for altering and adding to a building in a
heritage zone, associated site works, impervious surface area, signage, a
height to boundary infringement, building coverage, and the height of proposed
fences. The proposal has an overall activity status of non-complying.
8. The application was publicly
notified in January 2016 and when submissions closed on 10 February the council
had received 690 submissions with 579 in support and 111 in opposition. A large
number of the submissions in support are pro-forma submissions. 83 submitters
wish to be heard.
9. The main issues are heritage,
traffic and parking, noise, amenity and residential character.
Consideration
General
10. The
Hearings Committee has adopted a hearings policy that, at section 4.2, refers
to “Allocation of decision making responsibility between elected members,
independent commissioners and staff”. Section 4.2.2 states that in deciding
who is the most appropriate decision maker, the Hearings Committee will take
into account recommendations from council officers, the significance of a
particular matter and whether it is contentious.
11. The
application falls within the policy’s definition of contentious due to the
degree of interest from the local community and local media and the heritage
element.
12. Therefore,
it is recommended that the Hearings Committee in accordance with its policy
appoint the commissioners as decision-makers for this application including one
local board member (from an adjoining local board area). It is recommended that
the appointed commissioners include those with planning, heritage and traffic
expertise.
Local
board views and implications
13. The Devonport-Takapuna Local
Board recommended the application be public notified and expressed concern over
traffic, parking and noise.
Māori
impact statement
14. The applicant did not consult
with any iwi groups prior to submitting the applicant and there are no issues
specific to Maori values or interests identified in the application. The
proposal does not trigger the requirement for a Cultural Impact Assessment
under the PAUP. No submissions from any iwi group were received during the
public notification process.
15. Notwithstanding the above, the
application must be assessed in accordance with Part 2 of the RMA which
requires the council to recognise and provide for the relationship of Maori and
their culture and traditions with their ancestral lands, water, sites, waahi
tapu, and other Taonga; to have particular regard to kaitiakitanga and the
ethic of stewardship; and to take into account the principles of the Treaty of
Waitangi when making its decision.
Implementation
16. There are no financial or legal
implications beyond those normally associated with the appointment of hearing
commissioners. The costs of the hearing commissioners will be met by the
applicant.
Attachments
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No.
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Title
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Page
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aView
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Site location plan and aerial photo
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29
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bView
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Plans
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31
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cView
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Devonport-Takapuna local board comment
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37
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Signatories
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Authors
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Gerard McCarten - Principal Planner Hearings and
Resolutions
Robert Andrews - Resolutions Team Manager
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Authorisers
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Ian Smallburn - General Manager Resource Consents
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Hearings
Committee
21 June 2016
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Hearings Committee
21 June 2016
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Hearings
Committee
21 June 2016
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Hearings
Committee
21 June 2016
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Hearings
Committee
21 June 2016
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Hearings
Committee
21 June 2016
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Hearings
Committee
21 June 2016
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Hearings Committee
21 June 2016
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Designation of independent commissioners as duty
commissioners to determine resource consent applications and section 357
objections
File No.: CP2016/12095
Purpose
1. To designate a
number of independent commissioners as duty commissioners.
Executive
summary
2. The
current designation of duty commissioners by the Committee expires on 30 June
2016. Duty commissioners are required to continue to determine resource consent
applications where staff do not have delegation, where the council or a Council
Controlled Organisation (CCO) is the applicant; to hear section 357 objections;
and to determine notified applications that do not require a hearing.
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Recommendation/s
That the Hearings Committee:
a) designate, in accordance with clause 4.2.7 of the Hearings
Committee Policy, the following independent commissioners to act as duty
commissioners for the period from 1 July 2016 until 30 June 2017:
i) Mark Farnsworth ii)
Richard Blakey
iii) Robert Scott iv)
Barry Kaye
v) Kathleen Ryan vi) Janine Bell
vii) Jenny Hudson viii)
Justine Bray
ix) Dave Serjeant x)
Leigh McGregor
xi) Ian Munro xii)
Cherie Lane
subject to Commissioners Bell, Lane and
Ryan no longer being duty
commissioners for the period after 1
October 2016.
b) designate, in
accordance with clause 4.2.7 of the Hearings Committee Policy, the following
independent commissioners to act as duty commissioners for the period from 1
October 2016 until 30 June 2017:
i) Greg Hill
ii) David Hill
iii) Lee Beattie
c) approve, in
accordance with clause 5.2 of the Hearings Committee Policy, the above listed
duty commissioners to be available for assigning by the Resolutions Team
Principal Planners and Manager for the purpose of hearing and determining 357
objections.
d) delegate, in
accordance with clause 4.2.8 of the Hearings Committee Policy, to the
Resolutions Team Principal Planners and Manager the authority to assign one
or more duty commissioners to make decisions on resource consent applications
that staff consider are not significant or contentious and where no hearing
is required.
e) delegate, in
accordance with clause 4.2.8 of the Hearings Committee Policy, to the
Resolutions Team Principal Planners and Manager the authority to assign additional commissioners beyond the “duty” group but from
the approved list of independent commissioners, as may be necessary depending
on particular skills or knowledge required for a particular resource consent
application or section 357 objection determination.
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Comments
Background
3. At
its meeting on 2 June 2015, the Hearings Committee designated 12 independent
commissioners to be duty commissioners: available on short notice to make
decisions, where necessary, on resource consent applications not requiring a
hearing and to hear section 357 objections. The designation ran from 1 July
2015 to 30 June 2016.
4. Not
long into this term, two of the duty commissioners were appointed to the
Auckland Unitary Plan Independent Hearings panel and two replacement
commissioners were appointed. These are the 12 current commissioners named
within the recommendation above.
5. Now
that the current duty assignment is due to expire, there is a need to
re-appoint independent commissioners as duty commissioners for a further
period. The Hearings Committee Policy anticipates the practice of duty
commissioners to help ensure the efficient determination of applications within
statutory timeframes.
6. Unlike,
the previous annual duty commissioner reviews, the advent of the decision on
the Proposed Auckland Unitary Plan (PAUP) will make it desirable to delay any
change to the current duty commissioner group for a further three months.
Basis for designating duty commissioners
7. Paragraphs
4.2.7 and 4.2.8 of the Hearings Committee Policy provide for duty commissioners
and describe their role:
4.2.7 Following consultation with the
commissioners concerned, the Hearings Committee will designate a number of
independent commissioners to be Duty Commissioners.
4.2.8 Duty Commissioners must be available on
short notice to make decisions not requiring a hearing as allocated to them by
relevant team leaders and in accordance with directions of the Hearings
Committee.
8. Accordingly, the Hearings Committee has mid-yearly since 2012,
designated groups of independent commissioners to be duty commissioners for the
coming year.
9. The
Hearings Committee Policy sub-delegates to staff the authority to assign duty
commissioners:
5.2.1 For matters which staff consider are not
significant or contentious, Team Leaders and above in the Resource Consenting,
Licensing and Compliance and Planning Departments may assign Independent
Commissioners to make decisions, or if the matter is administrative in nature,
make the decision themselves.
5.2.2 In relation to resource consents for
matters which staff consider are not significant or contentious, the decision
whether or not to notify an application and the decision on an application
which is not notified may be made by staff or by a Duty Commissioner as
assigned by staff members.
10. The
Resolutions Team have operated a duty commissioner process across all offices
that, under the team’s management, has been operating successfully and
efficiently. Duty commissioners consider approximately 800 applications per
year, (around 6% of all resource consents) typically within 24 hours of receipt.
Re-designation of duty commissioners
11. With
the current designation due to expire, it is necessary to re-designate duty
commissioners for a further period to ensure continuity of service and
determine resource consent applications in a timely manner.
12. The
duty commissioners are drawn from the larger pool of approved independent
commissioners. A group of 12 duty commissioners has provided sufficient cover
for the region over the past recent years.
13. The
past yearly reviews have provided the opportunity for other members of the
wider independent commissioner list to become duty commissioners. Typically
three of the longer serving members of the group are swapped out with new
commissioners each year. Stability remains with the majority of current
commissioners continuing.
14. This
year differs from the previous yearly reviews due to the imminent release of
council’s decision on the PAUP. It is recommended that the usual mid-year
review be deferred by rolling over the current duty commissioner group for a
further 3 months. This will provide stability in decision-making with the more
complex applications being processed by the Resource Consents Department during
this period of change. Then from 1 October 2016, it is recommended to swap out
three of the longer standing commissioners. This allows an opportunity for a
new commissioner and to provide the benefit of re-instating two commissioners
with contemporary knowledge of the PAUP, from having been part of the
Independent Hearings Panel.
15. Duty
commissioners are generally rostered on call, one week per month, in three
separate pools covering the region, to determine non-notified applications. The
commissioners sit alone when making decisions, so need to have a wide range of
knowledge and expertise. There can be instances where additional detailed
knowledge or expertise is required, such as a technical legal matter, built
heritage, previous consenting knowledge of an area or kaupapa Maori or Treaty
of Waitangi issues. In such instances it may be appropriate for a duty
commissioner to be assisted by an additional independent commissioner from the
council’s approved list with the relevant expertise, or that commissioner stand
in as the decision-maker. The Resolutions Team seek a delegation to assign these
additional commissioners as and when necessary.
16. Duty
commissioners have also been used as a consistent pool of hearings
commissioners for considering section 357 objections where these cannot be
resolved through negotiation with staff under delegated authority. Section 357
objections often revolve around very narrow but detailed matters and hearings
for these objections are usually best handled by one or two commissioners. The
use of duty commissioners for this purpose enables hearings to be arranged
speedily to the benefit of the customer, and helps to grow a pool of specialist
knowledge on these matters.
17. Furthermore,
there are instances where notified applications do not require a hearing but it
is still appropriate for a decision to be made by an independent commissioner.
These include applications where neither the applicant nor submitters wish to
be heard. In such instances, the statutory timeframe for a decision is reduced,
because there is no need to arrange and hold a hearing. Delegating decision-making
authority to duty commissioners to consider such applications will ensure the
council is able to meet strict statutory timeframes.
Consideration
Local
board views and implications
18. The re-designation
of duty commissioners is not a matter within the remit of local boards.
Māori
impact statement
19. Commissioner
Mark Farnsworth has expertise on kaupapa Maori and Treaty of Waitangi issues.
His designation is recommended to ensure such issues can be given the
appropriate consideration as and when required. Additionally, where a detailed
knowledge or expertise of kaupapa Maori or Treaty of Waitangi issues is
relevant, one of the iwi specialist commissioners can be assigned to assist a
duty commissioner.
Implementation
20. To minimise
disruption to service levels and to ensure strict statutory timeframes are met,
the Resolutions Team recommends that the current commissioners continue for
three further months and then the further designations until 30 June 2017.
Attachments
There are no attachments for
this report.
Signatories
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Authors
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Robert Andrews - Resolutions Team Manager
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Authorisers
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Ian Smallburn - General Manager Resource Consents
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Hearings
Committee
21 June 2016
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Noting the urgent decision of 31 May 2016 to appoint
hearing commissioners
File No.: CP2016/11872
Purpose
1. To note a decision made under
urgency to appoint hearing commissioners to make decisions on a resource
consent application relating to 186 Atkins Road and 662 Ocean View Road,
Tomarata.
Executive
Summary
2. Jenny Hudson (chair), Orchid
Atimalala, Melean Absolum, independent commissioners, and Margaret Miles, Upper
Harbour Local Board member, were appointed to make decisions on a publicly
notified application for resource consent to hold a range of events at 186
Atkins Road and 662 Ocean View Road, Tomarata.
3. The decision was made under
urgency under Section 2 and 5.1.1 of the Hearings Committee policy and terms of
reference.
4. The decision was made by
Chairperson Linda Cooper, Councillor Calum Penrose, and member Glenn Wilcox on
31 May 2016.
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Recommendations
That the Hearings Committee:
a) note the decision to appoint
Jenny Hudson (chair), Orchid Atimalala, Melean Absolum, independent
commissioners, and Margaret Miles, Upper Harbour Local Board member, to make
decisions on a publicly notified application for resource consent relating to
186 Atkins Road and 662 Ocean View Road, Tomarata.
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Attachments
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No.
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Title
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Page
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aView
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Appointment of independent commissioners: application
for resource consent to hold a range of events on a site at 186 Atkins Road
and 662 Ocean View Road, Tomarata
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47
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Signatories
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Authors
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Louis Dalzell - Democracy Advisor
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Authorisers
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Ian Smallburn - General Manager Resource Consents
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Hearings
Committee
21 June 2016
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Hearings Committee
21 June 2016
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Objection to the issue of a noise abatement notice
File No.: CP2016/11914
Purpose
1. To determine
the objection by Ms Mikayla Pope of Auckland, to the noise abatement notice
issued for her dogs Kyah and Tyson on 15 September 2015.
Executive
Summary
2. Ms Pope has
requested that her address be redacted from the report and attachments.
Council staff have agreed to this request and ‘Ms Pope’s property’ will be
referenced in the report rather than a specific address.
3. Between 18
March 2015 and 3 September 2015, Council received 49 complaints from 11
different complainants alleging that barking dogs were causing a nuisance in
the vicinity of Arkles Reserve, Mt Roskill, Auckland.
4. Multiple
investigations repeatedly determined the barking came from Ms Pope’s property.
5. Council staff
worked with Ms Pope and the complainants to try to resolve the situation,
including advising her on methods to minimize the barking, in particular the
use of electronic bark collars.
6. Complaints
continued to be received during this period, which culminated in the issuance
of a noise abatement notice on 15 September 2015. An objection to the Council
was received on 22 September 2015.
7. Council’s
actions have been in accordance with a graduated enforcement approach with
emphasis on education and advice. The issuing of the noise abatement notice is
reasonable because other, voluntary means to address the nuisance being caused
have not been successful.
8. Experienced
animal management officers advise that electronic bark collars are a proven and
humane means for abating barking, can be implemented simply and without
unreasonable inconvenience to the dog owner.
9. Upon the
determination of the objection by the committee, Council shall give the
objector a further notice stating the decision of the authority. If the effect
of the decision is to modify the requirements of the notice, that notice shall
set out those requirements to be modified.
10. Should the
committee resolve to uphold the noise abatement notice, Ms Pope will have seven
days to address the nuisance noise and any other condition associated with the
abatement notice. Failure to comply after this period would constitute an
offence under the Dog Control Act. Council may at that point choose to take
subsequent action including the impounding of her dogs, and/or the issuing of
an infringement notice.
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Recommendation/s
That the Hearings Committee:
a) confirm and
uphold the Council officers’ decision to issue the abatement notice to
Ms Mikayla Pope of Mt Roskill, Auckland.
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Background
11. Between 18 March
2015 and 3 September 2015, Council received 49 complaints from 11 different
complainants alleging that barking dogs were causing a nuisance in the vicinity
of Arkles Reserve, Mt Roskill, Auckland. The details of the complaints are set
out in Attached A.
12. On 15 September
2015, the council issued Ms Pope with a noise abatement notice, ref Attachment
B. An objection to the council was received on 22 September 2015, ref
Attachment C.
13. Since the
abatement notice was issued the council has received a further 20 complaints.
14. Statements were
taken from neighbours in relation to their complaints:
· Neighbour
A – Neighbour A also recorded an episode of barking that will be available for
the committee to listen to if it chooses, ref Attachment D.
· Neighbour
B – ref Attachment E.
· Neighbour C – ref Attachment F.
8. Bark Monitoring
forms were provided to neighbours in the vicinity. Neighbours A and B
completed a monitoring form. In addition to neighbours A and B a further 4
neighbours have signed the monitoring form, ref Attachment G.
9. Neighbour C
also completed a bark monitoring form, ref Attachment H.
10. Maps and aerial
photographs have been included to illustrate the general vicinity of Arkles
Reserve, ref Attachment I.
11. The Officer in
charge of this case has provided a statement, ref Attachment J. In summary:
a. On 9 February
2016, she conducted bark monitoring from 2.00pm to 2.44pm. During that time
she recorded 16 minutes of barking from one dog. The Officer spoke to Ms Pope
who told her she was away from her home for 4 hours. She said she now has bark
collars on both dogs;
b. On 15 March
2016, the Officer attended another complaint from 4 complainants. She said she
monitored the barking from the park for 15 minutes and recorded 10 minutes of
barking. She contacted Ms Pope who initially denied her dogs were barking and
when the officer told her she had recorded her dogs barking Ms Pope “still
did not seem to take it seriously or really accept that the dog was barking.”
When the officer asked her whether the bark collars were being used she said “perhaps
they weren’t tight enough to make connection.”
c. The officer’s
recording of the barking is available should the committee wish listen to it.
17. In
the most recent complaint on 18 March 2016, Ms Pope told the responding animal
management officer that “she did know whether the bark collars were on”
and that “…the collars did not really work anyway.” The
officer formed the view that Ms Pope was not using the collars correctly
and discussed with her how to properly attach them and suggested shaving the
dogs’ necks to get a better result, refer to Attachment K.
Dog Control Act 1996
18. Section 55 of
the Dog Control Act 1996 provides where a dog control officer has reasonable
grounds for believing that a nuisance is being caused, they may:
(a) enter the land
or premises at any reasonable time, other than a dwelling house, on which the
dog(s) is kept, to inspect the conditions under which the dog is kept; and
(b) give the owner
of the dog(s) a written notice requiring that person to make such reasonable
provision on the property to abate the nuisance as specified in the notice or,
if considered necessary, remove the dog from the land or premises.
Relevant Council procedures
19. The practice of
Auckland Council when responding to complaints about barking is to:
(a) speak to
complainant(s), neighbours and the dog owner to determine whether barking is
creating a nuisance,
(b) monitor noise
from the property in question to determine whether barking is at nuisance
levels,
(c) work with the
dog owner and offer education and advice on how to minimise barking,
(d) work with
complainant(s) to help them understand the difference between reasonable levels
of barking and nuisance levels of barking
(e) use,
as a last resort, the legal powers contained within the Dog Control Act to
remediate nuisance barking[1].
20. The recipient of
a noise abatement notice may lodge an objection in writing to the issuing
authority. The committee has the delegated authority to consider any objection
raised and to confirm, modify, or cancel the noise abatement notice.
Conclusion
21. Council officers
have responded to complaints about barking from Ms Pope’s property for over a
year. Officers have encouraged, advised and supported the dog owner and
neighbours in an attempt to abate and minimise the nuisance through voluntary
action, including the use of electronic bark collars.
22. Ms Pope has
taken some steps to remedy the nuisance and these have been partially
successful but the council still receives complaints about barking.
23. The issuing of the noise abatement notices is reasonable in all of
the circumstances of this case. The use of electronic bark collars has
demonstrated that when properly fitted they effectively abate nuisance barking.
Consideration
Local
Board views and implications
24. Local board view
has not been sought.
Māori
impact statement
25. The content of
this report has no adverse effect on Māori.
Implementation
26. There are no
implementation issues at this stage.
Attachments
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No.
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Title
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Page
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aView
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Number of complaints received (Under Separate
Cover)
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bView
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Noise abatement notice (Under Separate Cover)
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cView
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Objection to noise abatement notice (Under Separate
Cover)
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dView
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Statement from neighbours A (Under Separate Cover)
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eView
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Statement from neighbours B (Under Separate Cover)
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fView
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Statement from neighbours C (Under Separate Cover)
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gView
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Bark monitoring form from neighbour A and B (Under
Separate Cover)
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hView
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Bark monitoring form from neighbour C (Under
Separate Cover)
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iView
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Aerial photographs of Arkles Reserve and vicinity
(Under Separate Cover)
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jView
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Statement from Animal Management Officer (Under
Separate Cover)
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kView
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Complaint from 18 March 2016 (Under Separate Cover)
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Signatories
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Authors
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Geoff Keber - Manager Animal
Management
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Authorisers
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Grant Barnes - General Manager Licensing and
Compliance Services
Ian Smallburn - General Manager Resource Consents
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Hearings
Committee
21 June 2016
|
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Exclusion of the Public: Local Government Official
Information and Meetings Act 1987
That the Hearings Committee:
a) exclude the
public from the following part(s) of the proceedings of this meeting.
The general
subject of each matter to be considered while the public is excluded, the
reason for passing this resolution in relation to each matter, and the specific
grounds under section 48(1) of the Local Government Official Information and
Meetings Act 1987 for the passing of this resolution follows.
This
resolution is made in reliance on section 48(1)(a) of the Local Government
Official Information and Meetings Act 1987 and the particular interest or
interests protected by section 6 or section 7 of that Act which would be
prejudiced by the holding of the whole or relevant part of the proceedings of
the meeting in public, as follows:
C1 Resource Consent Appeals: Status Report 21 June 2016
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Reason for passing this resolution in relation to each
matter
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Particular interest(s) protected (where applicable)
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Ground(s) under section 48(1) for the passing of this
resolution
|
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The public conduct of the part of the meeting would be
likely to result in the disclosure of information for which good reason for
withholding exists under section 7.
|
s7(2)(i) - The withholding of the information is necessary
to enable the local authority to carry on, without prejudice or disadvantage,
negotiations (including commercial and industrial negotiations).
In particular, the report contains information that could
compromise the council in undertaking without prejudice negotiations of these
appeals that are before the Environment Court.
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s48(1)(a)
The public conduct of the part of the meeting would be
likely to result in the disclosure of information for which good reason for
withholding exists under section 7.
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C2 Noting the urgent decision of 7 June 2016: Mitchell v Auckland
Council
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Reason for passing this resolution in relation to each
matter
|
Particular interest(s) protected (where applicable)
|
Ground(s) under section 48(1) for the passing of this
resolution
|
|
The public conduct of the part of the meeting would be
likely to result in the disclosure of information for which good reason for
withholding exists under section 7.
|
s7(2)(i) - The withholding of the information is necessary
to enable the local authority to carry on, without prejudice or disadvantage,
negotiations (including commercial and industrial negotiations).
In particular, the report contains information that could
compromise the council in undertaking without prejudice negotiations of the
appeal that are before the Environment Court.
|
s48(1)(a)
The public conduct of the part of the meeting would be
likely to result in the disclosure of information for which good reason for
withholding exists under section 7.
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