I hereby give notice that an ordinary meeting of the Maungakiekie-Tāmaki Local Board will be held on:
Thursday, 15 September 2016
Maungakiekie-Tāmaki Local Board
OPEN ADDENDUM AGENDA
Bridget Graham, QSM
(Quorum 4 members)
Democracy Advisor, Maungakiekie-Tāmaki Local Board
9 September 2016
Contact Telephone: (09) 570 3840
Maungakiekie-Tāmaki Local Board
15 September 2016
15 Application for a licence to operate a commercial wakeboarding operation in Te Tauranga (in Onehunga Bay Reserve) 5
Maungakiekie-Tāmaki Local Board
15 September 2016
Application for a licence to operate a commercial wakeboarding operation in Te Tauranga (in Onehunga Bay Reserve)
File No.: CP2016/19297
1. To seek approval to:
a. publicly notify a licence for Rixen NZ Limited (Rixen) to occupy Te Tauranga (in Onehunga Bay Reserve) for a term of five years for its cable wakeboarding operation subject to conditions; and
b. grant landowner approval to Rixen to leave its structures in the lagoon after the expiry of the current licence on 9 September 2016; until a decision is made on the new licence application.
2. Rixen had a temporary licence to operate a cablepark for 40 days in Te Tauranga Reserve. The Maungakiekie-Tāmaki Local Board resolutions giving approval as landowner are included in Attachment A. The current approval expired on 9 September 2016.
3. Rixen is now seeking the grant of a five year licence for the cablepark, including an additional winch line as shown in Attachment B.
4. Where the board support the application, public notification and iwi consultation is required under the Reserves Act.
5. Staff have reviewed the current operation and proposal for a new licence. While it is acknowledged that there are disadvantages to the proposal including perceptions of inappropriate privatisation of public reserve and exclusive use of lagoon areas for up to five days a week; it is considered that the benefits of the proposal outweigh those costs. In particular the proposal provides for and promotes wakeboarding to users who might otherwise not experience the activity, in a location where there are no similar facilities.
6. Staff note concern around Rixen’s compliance with Environmental Health recommendations to date, however staff support the proposal noting Rixen’s feedback around their miscommunications with the Environmental Health unit and independent ecological advice received by Rixen.
7. Where public notification is supported, an engagement plan is proposed to ensure appropriate public and iwi awareness of the application and the opportunity to submit.
8. The board also has options to choosing a hearing panel to consider the application following public notification. It is recommended that the incoming local board and an independent chair be appointed and that they be delegated the power to make the decision on the application. This achieves the benefit of having a chair who is experienced with the Reserves Act and hearings processes, combined with retaining the input of the Local Board; and allows for a decision to be made relatively quickly. In this case public notification could occur in October, a hearing in November and a decision within a few weeks following the hearing.
9. Where the board supports the application to publicly notify, it is also recommended that the board grant approval as landowner for Rixen to leave the structures in the lagoon until such time as a decision on the licence is made. While there is a risk that this is perceived to pre-empt the outcome of the public notification process, leaving the structures in place will also allow the public the chance to see how that structures impact on the reserve. It will also reduce costs to the applicant and provide for the operation to start in summer should a decision be granted in that timeframe.
That the Maungakiekie-Tāmaki Local Board:
a) approves the public notification as required by section 54 of the Reserves Act 1977 and iwi consultation as required by section 4 of the Conservation Act 1987 for a five year commercial wakeboarding licence and lease:
b) approve the public engagement plan to be tabled at the local board meeting on 15 September 2016;
c) appoint a panel consisting of an Independent Hearings Commissioner (Gerry Rowan, or if unavailable, Bill Carson) as Chair and the full local board to consider any submissions received and to make the decision on the granting of the commercial wakeboarding licence;
d) grant temporary landowner approval for Rixen’s structures to remain in the lagoon pending the outcome of the resource consent decision and a decision on the licence; subject to:
i) not operating the cable with any load (even for maintenance purposes) unless with the written approval of the Local Parks Advisor; and
ii) maintaining public liability insurance to the value of $2M during the period.
10. Rixen is seeking a licence to carry out a commercial wakeboarding operation within Te
Tauranga (in Onehunga Bay Reserve). Attachment A includes a site plan showing their
infrastructure on the reserve. Key aspects of the proposal are as follows:
· utilising their existing cablepark infrastructure (including dock, towers, cable equipment, obstacles and pop-up gazebo) and maintaining exclusive use for storage purposes of a portion of the council building on the reserve;
· adding a new activity: being a separate winch line (labelled ‘Grunt Winch Line’ on Attachment A) closer to the northeastern shore. This is primarily for use by children. The winch line consists of a cable drawn by a small petrol motor which pulls an inflatable sea biscuit or similar across the water. Note that this was previously operated without specific approval as a non-commercial activity;
· operating up to five days a week specified as Tuesday, Wednesday, Friday, Saturday and Sunday; from 9am to half an hour before sunset; excepting days booked/agreed with other user groups;
· charging the public per ride or for a day pass; current and proposed operation charges: approximately $50-$75 per hour on the cablepark; approximately $20 per hour on the winch line;
· intention to hold approximately three to four larger events per year and a number of smaller events.
11. Landowner approval is also sought for the existing towers, cables and obstacles in the lagoon to remain in place for the duration of the period required to carry out public and iwi consultation and make a decision on the licence application.
12. On 17 March 2016 the board approved the grant of a temporary licence to occupy the reserve for 40 days to Rixen (resolution number MT/2016/32). A further extension of the temporary licence until 9 September 2016 was granted by the board on 16 June 2016 (resolution MT/2016/95). Attachment B contains a copy of these resolutions.
13. The initial licence period was granted for 40 days of operation without public notification under section 53 of the Reserves Act under which the reserve is held. Water quality queries were raised late in the initial application process and resulted in conditions of approval restricting the activity after rainfall and when testing showed that the water quality was a public health concern.
Operation to date
14. As at 6 September 2016, Rixen reported that they had operated for 37 days out of the 40 licenced days to date.
15. Rixen advise that 710 people have used the cablepark during the licence period. They estimate that 35% of those have never tried the sport before. Of the remainder, they estimate that approximately half have been repeat customers.
16. Larger events held include a national competition for wakeboarders, an event for scouting groups, and an Auckland University Open. Rixen estimate that the scouting and national wakeboarding events have each attracted approximately 250 people/day to the reserve. Some events have included sponsorship funding to allow locals and scouting groups to ride at no cost. There has also been media coverage of the events and cablepark operation including on Sky Sports, breakfast television, and National Radio amongst others.
17. As outlined in the March and June reports on the first licence application; the activity has received written support from a number of participants, local businesses and members of the public. Rixen has also recently sought and received renewed support from local user groups including the Aotea Sea Scouts, the Royal Oak Scouts, and the Northern Maritime Model Society (NMMS) – model boat club. The Sea Scouts have noted an upcoming Canoe Carnival (6 November) for which they may need obstacles moved; and that they want to maintain their current storage space in the council building. The Royal Oak Scouts referenced the event held with Rixen; and their desire to hold similar events in that location due to this popularity. The NMMS stated they had no objection to Rixen’s application.
18. Rixen has also received recent letters of support from the Halberg Disability Sport Foundation (especially supporting a Disability Wakeboarding focus to their Auckland Watersports Day); and the Sir Peter Blake Marine Education and Recreation Centre who note they have 11,000 children through their centre in Long Bay annually and support the cablepark at Onehunga as being a good fit with their youth programmes.
19. Compliance with water quality restrictions however is an issue as the log book supplied by Rixen shows that it has operated on occasion in contravention of those restrictions. Those restrictions included ceasing activity when enterococci bacteria levels exceeded certain levels, and where it had rained within the previous 48 hours; unless otherwise approved by the council’s Environmental Health unit.
20. Following further water quality monitoring data and conversations with the applicant, the Environmental Health unit has recently recommended that a 10mm rain event in 48 hours is an appropriate trigger for a shut-down of activity.
21. Applying that standard retrospectively the Rixen logbook indicates that they operated on nine days following rainfall exceeding 10mm in the previous 48 hours. On one of these occasions (the three day weekend of the National Cable Wakeboarding Championships), the enterococci levels also exceeded the specified limit.
22. It is noted that prior to those championships, Rixen sought advice from council’s Environmental Health team given a forecast of rain. On that occasion, Environmental Health gave approval for the operation based on special requirements being met.
23. Operation on the other six days following rainfall greater than 10mm was not however authorised. Rixen has advised that their conversations with an independent ecologist and with the council’s Environmental Health team led them to believe that flushing the lagoon
after rain was sufficient to remove water of poor quality. Rixen advised that they ensured
the lagoon was flushed within the previous 24-48 hours and consequently only considered
the previous 24 hours of rainfall given they flushed within that period. The Environmental
Health team has confirmed however that they require evidence based on water quality
monitoring and flushing data to confirm if this is the case. To date, water quality testing by
Rixen shows eight results out of 65 samples have shown enterococci higher than the
280MPN/100ml ‘shutdown’ limit.
24. At present, Environmental Health have provided the following recommendations for
operation which have been formulated in response to Rixen’s resource consent application:
operation if rainfall within the preceding 48 hours is over 10mm unless
furtherevidence supports a reduced period is appropriate; b) ceasing
operation of the winch line (in the vicinity of the stormwater outlets)
when discharge water from the outlets is observed following rain; c) engaging
a registered laboratory to carry out a long term routine weekly water
quality monitoring (with cancellation of activities
if sample results exceed the Ministry for the Environment’s health
guideline (280MPN/100ml); d) checking
that no swimmers are using the receiving beaches when manual flushing of
the lagoon commences; e) all
rainfall data and flushing frequency recorded in the log book to be made
available to the resource consent compliance team;
a) ceasing operation if rainfall within the preceding 48 hours is over 10mm unless furtherevidence supports a reduced period is appropriate;
b) ceasing operation of the winch line (in the vicinity of the stormwater outlets) when discharge water from the outlets is observed following rain;
c) engaging a registered laboratory to carry out a long term routine weekly water quality monitoring (with cancellation of activities if sample results exceed the Ministry for the Environment’s health guideline (280MPN/100ml);
d) checking that no swimmers are using the receiving beaches when manual flushing of the lagoon commences;
e) all rainfall data and flushing frequency recorded in the log book to be made available to the resource consent compliance team;
25. In addition to water quality compliance issues, minor operational issues have occurred.
These were previously outlined in the June report to the board. Of those minor issues, mud
generation remains evident on the reserve, likely following heavy foot traffic related to a recent event. Rixen has been advised to remediate the area in liaison with a park ranger. Additionally Rixen has displayed commercial advertising on the obstacles without approvals. They were removed immediately upon Rixen being made aware of the inappropriateness of that action.
26. Rixen has considered many alternative locations for the wakeboarding operation including the Vector Wero Whitewater Park at Manukau. Rixen advised staff that due to revised planning rules in the Proposed Auckland Unitary Plan, that location is an increasingly unlikely option. Further, Rixen also advises the cost of changes to ground levels (earthworks) that would be required are virtually prohibitive given Rixen’s moderate budget.
27. Additionally, Rixen have sought locations less influenced by tidal changes and with space not already under high demand from other recreational users. This limits options and to date, no other suitable locations have been found.
28. Rixen maintains that the current location at Te Tauranga (in Onehunga Bay Reserve) is the only viable option they have been able to identify to date.
Assessment of new licence application
29. The table below provides an assessment of the pros and cons of the current application for a new licence and lease. These include consideration of the general aspects of the activity, and learnings from the operation run to date.
· provides an opportunity for the public to participate in a recreational activity that many would not be able to do in normal circumstances, particularly those who do not have access to a boat. Rixen indicate they have and will continue to provide opportunities for scouting groups and youth to use the facility at no or little cost or for funding raised from events to go back to scouting groups and youth organisations.
· Provides an opportunity for spectators to enjoy this type of activity (including an opportunity to watch professional wakeboarders).
· Events bring people into the area; raising the profile of the reserve and with potential benefits to local businesses.
· The cablepark is a relatively accessible recreational opportunity for disabled athletes allowing them to compete alongside non-disabled athletes.
· The activity is likely to raises the profile of wakeboarding in New Zealand and provides an opportunity for training wakeboarders of the future where there is currently no such facility in the Auckland area.
· The activity may generate interest in improving local water quality including ensuring dog faeces are properly disposed of.
· Operation all day for up to five days a week excludes users from the lagoon for substantial periods. It is noted that Rixen is happy to work with other groups to allow for their use; but there will be impacts on casual, unscheduled use or potential conflicts.
· The structures in the water take up a portion of the lagoon and as such limits the ability of the wider public and other user groups to use the lagoon fully even when not in use; noting that the obstacles can be floated aside as required when not in use.
· The operation – as a commercial activity – will create a sense of privatization of public space which may be perceived negatively.
· The Environmental Health recommendations reflect water quality issues with the location. Operations to date indicate that Rixen has not always adhered to the recommendations to safeguard public health.
· There may be reverse sensitivities from dog-walkers who are concerned that the activity impacts adversely on their use of the reserve.
· Temporary adverse effects on the reserve may occur particularly after events.
· Reduces flexibility in operating the tidal gates to manage the lagoon environment.
30. Rixen’s record of compliance with the water quality restrictions remain the largest concern to staff. However discussions with Rixen indicate they regret the miscommunications that have occurred on the Environmental Health recommendations and operating in contravention of conditions.
31. Parks staff have also discussed options for a reduced licence term that may provide greater oversight / review of the activity on a more frequent basis. Legal advice on providing approval subject to conditions (such as to alter the licence term) is however unfavourable as it is considered more appropriate that a Hearings Panel or the board determine the appropriate conditions of a licence through the public notification and hearing process (discussed below).
32. Parks staff similarly have expressed some concern that operation for up to five days a week, reduces council’s options to flush the lagoon. Currently the schedule allows for flushing once at least every three days. However lagoon flushing is likely important for water quality and weed control and an optimal flushing regime may change as climate or weather changes impact. The council is responsible for the tidal gate operation and will continue to be so even if Rixen are granted a licence. While Rixen currently operate the gate manually on occasion, staff have discussed with them that this operation would be reviewed in the future if a licence was granted.
33. Overall however, staff support the proposed licence application. This is because the
participatory and spectating benefits of providing for recreational activity not otherwise
provided in the city are viewed to outweigh the negative aspects. It is considered that many
of the issues with the proposal are relatively minor or can be controlled or mitigated through
conditions of a licence.
Reserves Act requirements and licence process and options
34. Te Tauranga (in Onehunga Bay Reserve) is held under the Reserves Act for recreational
purposes but with no management plan in place. The council is the administering body of
the Reserve, and is responsible for managing, controlling and administering the Reserve, in
accordance with the Reserves Act, and the general purpose of the Reserve (ie, “providing
areas for the recreation and sporting activities and the physical welfare and enjoyment of
the public, and for the protection of the natural environment and beauty of the countryside,
with emphasis on the retention of open spaces and on outdoor recreational activities,
including recreational tracks in the countryside.” An application for a commercial licence is
subject to the provisions of section 54(1)(d) of that Act. Section 54 stipulates that the
activity must be necessary to enable the public to obtain the benefit and enjoyment of the
reserve or for the convenience of persons using the reserve. It is up to the administering
body (to make this decision, before deciding to consult on, or grant the licence and lease).
35. In the event that Rixen does not comply with Environmental Health’s recommendations,
staff have received advice from council’s Risk team that there is a potential reputational risk
to the council as well as the obvious health and safety risks.
36. To deal with this, the council needs to take positive steps to mitigate the risks as part of the
licencing (if approved). Staff recommend that continued independent monitoring at the
Reserve will be required on council’s behalf and at Rixens’s expense to ensure that health
and safety requirements are adhered to by Rixen. Other provisions to be included in the licence to that effect are an audit of the operation by the council at regular periods and if Rixen does not comply with Environmental Health’s requirements then the licence may immediately be brought to an end by the council.
Option to refuse:
37. In considering the application, the board, as the part of council responsible for this type of decision, has an option not to proceed with the application, for example, if the activity did not meet the test above and there were good reasons not to proceed. This would mean that no public notification need take place and Rixen would be advised to remove their structures and equipment from the reserve and reinstate the land.
Option to consult:
38. Where the board is considering the application, the board would then approve the public notification as required by section 54(2) of the Reserves Act and iwi consultation as required by section 4 of the Conservation Act 1987.
39. The process requires that:
· public notice is published in a local paper circulating the area of the reserve;
· a submission period of not less than one month be offered; noting that public notice given after 10 December triggers a requirement to extend that period to 10 February;
· full consideration be given to all objections and submissions through the board, a committee; or person(s) as appointed by the board; and
· either the committee or person(s) make a recommendation back to the board for a decision; or the committee or board make the final decision.
40. This process generally takes between three to six months to complete. Where a committee is being considered, there are options to appoint independent commissioner/s, on the basis that they have “skills, attributes, or knowledge that will assist the work of the committee” (schedule 7, clause 31, Local Government Act 2002). Such commissioners have the advantage of being familiar with the process and relevant legislation and formulating decisions including appropriate conditions and reports.
41. The advantage of using board members is that they are familiar with their local electorate and represent the local ratepayers/user groups and their concerns.
42. Rixen is keen to have its application considered as soon as possible so that it is able to operate this summer if the licence is approved. Local body elections are scheduled for October, and at the end of the term, board committees (including any committee established to hear from submitters) will be discontinued. However the future board may form or be part of the panel.
43. Given the timing of this report, the earliest public notification that could take place is late September or early October. The one month submission period would mean a hearing could take place in November, once the new board is in place so allowing the future local board members to be part of the panel.
44. Staff recommend that the board appoint a panel consisting of one Independent Hearings Commissioner as Chair and the full board as elected in October. Council Hearings staff recommend that Gerry Rowan or Bill Carson (who are experts in the Reserves Act) be appointed as the Chair. This achieves the benefit of having a chair who is experienced with the Reserves Act and hearings processes, combined with retaining the input of the local board.
45. Inclusion of the full local board on the panel also provides an appropriate mandate for the panel to make the final decision on the application without a report back to the board.
Public Engagement Plan
46. Staff are also preparing a public engagement plan to ensure that information on the application and ability to submit is widely advertised. This is to be workshopped with the board on 13 September 2016 and tabled at the meeting.
Approval to leave structures in place temporarily
47. The expiry of the previous licence and the resource consent on 9 September means that Rixen are obligated to remove their structures and equipment from the reserve.
48. Rixen has requested that the structures be permitted to stay temporarily during the licence application process so that they don’t incur costs of up to $20,000 to remove and reinstall.
49. The board has the authority under section I (5) (a) of the Local Board Delegations to grant landowner consent and therefore may allow the structures to remain on a temporary basis.
50. Leaving the structures in place will allow the public the opportunity to understand the visual impact of those structures in situ when considering making submissions on the proposal.
51. However there is a risk that leaving the structures on site is perceived as indicating that approval is a rubber-stamping exercise. In this case staff consider that this risk can be mitigated through the public engagement plan process. This can make clear that the application will be given free and open consideration; and the structures being on site from the previous licence approval would not be a factor in a final decision.
52. Rixen state that the cablepark needs to be run for six to eight hours a week; over two or three days. This is because the salt water environment means the machinery needs regular movement. They would prefer to do this maintenance by running a wakeboarder on the cable. However the risk is that it may be perceived by the public that the cablepark is still operational. In this case, Rixen has agreed that they can maintain the equipment without a wakeboarder attached.
53. Where the board supports the proposal for the cablepark equipment to stay on site for the
duration of the licence application process, then it is recommended that this be subject to:
not operating with any load on the cable
(even for maintenance purposes) unless with the written approval of the
Local Parks Advisor; and · maintaining public liability insurance to the value of $2 million
during the period.
· not operating with any load on the cable (even for maintenance purposes) unless with the written approval of the Local Parks Advisor; and
· maintaining public liability insurance to the value of $2 million during the period.
Statement on significance
54. The decision sought requires analysis against the council’s Significance and Engagement
Policy. The local board has the discretion to determine the degree of significance of a
decision. This decision has been assessed by staff on the following matters:
number of people affected, the degree to
which they are affected and the likely impact of the decision, · Whether
the type of decision has historically generated wide public interest
within the locality (local board decision) or within Auckland and New
Zealand (a governing body decision), · The
impact of the decision on the governing body or local board
ability’s to deliver on actions that contribute to the Auckland Plan,
as well as any statutory responsibility, · The
impact of the decision on the intended service levels for a group of
activities, including the start/stop of any group of activity, · The
degree to which the decision or proposal can be reversed should
circumstances warrant, · The
relationship of Maori, and their culture and traditions, in respect of any
decision impacting on ancestral lands, water, sites, waahi tapu, valued
flora and fauna and other taonga, · Whether
the Reserve is a strategic asset.
· The number of people affected, the degree to which they are affected and the likely impact of the decision,
· Whether the type of decision has historically generated wide public interest within the locality (local board decision) or within Auckland and New Zealand (a governing body decision),
· The impact of the decision on the governing body or local board ability’s to deliver on actions that contribute to the Auckland Plan, as well as any statutory responsibility,
· The impact of the decision on the intended service levels for a group of activities, including the start/stop of any group of activity,
· The degree to which the decision or proposal can be reversed should circumstances warrant,
· The relationship of Maori, and their culture and traditions, in respect of any decision impacting on ancestral lands, water, sites, waahi tapu, valued flora and fauna and other taonga,
· Whether the Reserve is a strategic asset.
55. This decision is not considered to be significant under the criteria set out in council‘s Significance and Engagement Policy. The land is not a strategic asset and a proposal to grant a licence to operate on a reserve is not an activity that exceeds the threshold on activities set out in the policy.
56. However, the proposed public engagement, which is required under the Reserves Act, and iwi consultation to be undertaken in accordance with the Conservation Act are of an equivalent level of consultation that would be required under the council’s Significance and Engagement Policy if the decision was of medium significance.
Local Board views and implications
57. The application is for an activity that delivers on one of the key outcomes of the Maungakiekie Tāmaki Local Board Plan 2014 being:
58. Parks, sports and recreational facilities that promote healthy lifestyles and enhance well-being
59. The proposal was workshopped with the board on 23 August 2016. An engagement plan was suggested at that time and another workshop is scheduled for 13 September to review a suggested plan.
Māori impact statement
60. Should the board approve public notification, then iwi will also be consulted and invited to make submissions on the proposal. Iwi consultation is also included in a separate engagement plan.
61. Should Rixen be granted a licence, they will also need to ensure they have appropriate regulatory approvals in place. Rixen has applied for a resource consent which is pending. They have done this to expedite a summer operation, knowing that the resource consent in no way impacts on the council’s unfettered ability to make the decision as landowner on their licence application.
62. Should the board approve public notification and the engagement plan, the council’s Community Facilities department will carry out the public notification and consultation with iwi as per the engagement plans. Costs involved with the public notification and hearings process will be met by Rixen.
63. Rixen has also been working to form a national body for wakeboarders (‘Cable Wakeboarding Incorporated Society’), seeking to associate with the National Waterski Association. This organization would promote the sport more widely and also provide opportunities for subsidising use using sponsorship or other funding models. These plans however are still in progress and the current application is made as a commercial outcome. As such, any licence approved would be subject to a commercial rental as negotiated through Panuku at market rates.
Local Board Resolutions
Allan Walton - Senior Acquisitions and Disposals Advisor
Kim O’Neill - Head of Community Relations
Rod Sheridan - General Manager Community Facilities
Victoria Villaraza - Relationship Manager