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Maungakiekie-Tāmaki
Local Board
15 September
2016
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Application
for a licence to operate a commercial wakeboarding operation in Te Tauranga (in
Onehunga Bay Reserve)
File No.:
CP2016/19297
Purpose
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.
Executive Summary
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.
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Recommendation/s
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.
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Comments
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.
Background
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:
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;
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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.
Alternative
Locations
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.
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Pros
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· 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.
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Cons
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· 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.
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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).
Risk
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.
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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:
· 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.
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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.
Consideration
Community
views
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.
Implementation
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.
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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Local Board Resolutions
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15
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b⇩
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Site Plan
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17
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Signatories
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Authors
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Allan Walton - Senior Acquisitions
and Disposals Advisor
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Authorisers
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Kim O’Neill - Head of Community
Relations
Rod Sheridan - General Manager
Community Facilities
Victoria Villaraza - Relationship
Manager
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