I hereby give notice that an ordinary
meeting of the Regulatory Committee will be held on:
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Date:
Time:
Meeting Room:
Venue:
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Thursday, 8
February 2018
9.30am
Room 1, Level
26
135 Albert St
Auckland
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Komiti Whakahaere ā-Ture
Regulatory 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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Deputy Mayor Bill Cashmore
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Members
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Cr Fa’anana Efeso Collins
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Cr Richard Hills
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Cr Daniel Newman, JP
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Cr Dick Quax
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Cr Sharon Stewart, QSM
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IMSB Chair David Taipari
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Member Wayne Walker
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Cr John Watson
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IMSB Member Glenn Wilcox
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Ex-officio
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Mayor Hon Phil Goff, CNZM, JP
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(Quorum 5 members)
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Maea Petherick
Senior Governance Advisor
2 February 2018
Contact Telephone: (09) 890 8136
Email: maea.petherick@aucklandcouncil.govt.nz
Website: www.aucklandcouncil.govt.nz
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Responsibilities
The committee is responsible for regulatory hearings
(required by relevant legislation) on behalf of the council. The
committee is responsible for appointing independent commissioners to carry out
the council’s functions or delegating the appointment power (as set out
in the committee’s policy). The committee is
responsible for regulatory policy and bylaws. Where the
committee’s powers are recommendatory, the committee or the appointee
will provide recommendations to the relevant decision-maker.
The committee’s key responsibilities include:
·
decision-making (including through a hearings process) under the
Resource Management Act 1991 and related legislation
·
hearing and determining objections under the Dog Control Act 1996
·
decision-making under the Sale and Supply of Alcohol Act 2012
·
hearing and determining matters regarding drainage and works on
private land under the Local Government Act 1974 and Local Government Act 2002
(this cannot be sub-delegated)
·
hearing and determining matters arising under bylaws
·
receiving recommendations from officers and appointing
independent hearings commissioners to a pool of commissioners who will be
available to make decisions on matters as directed by the Regulatory Committee
·
receiving recommendations from officers and deciding who should
make a decision on any particular matter including who should sit as hearings
commissioners in any particular hearing
·
monitoring the performance of regulatory decision-making
·
where decisions are appealed or where the committee decides that
the council itself should appeal a decision, directing the conduct of any such
appeals
·
considering and making recommendations to the Governing Body
regarding the regulatory and bylaw delegations (including to Local Boards)
·
regulatory fees and charges
·
recommend bylaws to Governing Body for consultation and adoption
·
appointing hearings panels for bylaw matters
·
review local board and Auckland water organisation proposed
bylaws and recommend to Governing Body
·
set regulatory policy and controls, including performing the
delegations made by the Governing Body to the former Regulatory and Bylaws
Committee, under resolution GB/2012/157 in relation to dogs and GB/2014/121 in
relation to alcohol.
·
engage with local boards on bylaw development and review
·
adopting or amending a policy or policies and making any
necessary sub-delegations relating to any of the above areas of responsibility
to provide guidance and transparency to those involved.
Not all decisions under the Resource Management Act 1991 and
other enactments require a hearing to be held and the term
“decision-making” is used to encompass a range of decision-making
processes including through a hearing. “Decision-making”
includes, but is not limited to, decisions in relation to applications for
resource consent, plan changes, notices of requirement, objections, existing
use right certificates and certificates of compliance and also includes all
necessary related decision-making.
In adopting a policy or policies and making any
sub-delegations, the committee must ensure that it retains oversight of
decision-making under the Resource Management Act 1991 and that it provides for
councillors to be involved in decision-making in appropriate circumstances.
For the avoidance of doubt, these delegations confirm the
existing delegations (contained in the chief executive’s Delegations
Register) to hearings commissioners and staff relating to decision-making under
the RMA and other enactments mentioned below but limits those delegations by
requiring them to be exercised as directed by the Regulatory Committee.
Relevant legislation includes but is not
limited to:
All Bylaws
Biosecurity Act 1993
Building Act 2004
Dog Control Act 1996
Fencing of Swimming Pools Act 1987
Gambling Act 2003;Land Transport Act 1998
Health Act 1956
Local Government Act 1974
Local Government Act 2002
Local Government (Auckland Council Act) 2009
Resource Management Act 1991
Sale and Supply of Alcohol Act 2012
Waste Minimisation Act 2008
Maritime Transport Act 1994
Related Regulations
Powers
(i) All
powers necessary to perform the committee’s responsibilities.
Except:
(a) powers that
the Governing Body cannot delegate or has retained to itself (section 2)
(b) where the
committee’s responsibility is limited to making a recommendation only.
(ii) Power to
establish subcommittees.
Exclusion of the public – who
needs to leave the meeting
Members of the public
All members of the public must leave the
meeting when the public are excluded unless a resolution is passed permitting a
person to remain because their knowledge will assist the meeting.
Those who are not members of the public
General principles
·
Access to confidential information is managed on a “need to
know” basis where access to the information is required in order for a
person to perform their role.
·
Those who are not members of the meeting (see list below) must
leave unless it is necessary for them to remain and hear the debate in order to
perform their role.
·
Those who need to be present for one confidential item can remain
only for that item and must leave the room for any other confidential items.
·
In any case of doubt, the ruling of the chairperson is final.
Members of the meeting
·
The members of the meeting remain (all Governing Body members if
the meeting is a Governing Body meeting; all members of the committee if the
meeting is a committee meeting).
·
However, standing orders require that a councillor who has a
pecuniary conflict of interest leave the room.
·
All councillors have the right to attend any meeting of a committee
and councillors who are not members of a committee may remain, subject to any
limitations in standing orders.
Independent Māori Statutory Board
·
Members of the Independent Māori
Statutory Board who are appointed members of the committee remain.
·
Independent Māori Statutory Board
members and staff remain if this is necessary in order for them to perform
their role.
Staff
·
All staff supporting the meeting (administrative, senior
management) remain.
·
Other staff who need to because of their role may remain.
Local Board members
·
Local Board members who need to hear the matter being discussed
in order to perform their role may remain. This will usually be if the
matter affects, or is relevant to, a particular Local Board area.
Council Controlled Organisations
·
Representatives of a Council Controlled Organisation can remain
only if required to for discussion of a matter relevant to the Council Controlled
Organisation.
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Regulatory
Committee
08 February
2018
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ITEM TABLE
OF CONTENTS PAGE
1 Apologies 9
2 Declaration of
Interest 9
3 Confirmation
of Minutes 9
4 Petitions 9
5 Public Input 9
6 Local Board
Input 9
7 Extraordinary
Business 9
8 Notices of
Motion 10
9 Options on the
development of alcohol licensing fees to replace default fees set by Central
Government 11
10 Proposal for cost recovery
of investigations and resolutions of non-compliant activities 15
11 Update on the proactive
boarding house inspections in South and Central Auckland 19
12 Resource Consents:
Quarterly Hearings Report November 2017 23
13 Regulatory Committee
Summary of Information Items - 8 February 2018 29
14 Consideration of
Extraordinary Items
At the close of
the agenda no apologies had been received.
2 Declaration
of Interest
Members are
reminded of the need to be vigilant to stand aside from decision making when a
conflict arises between their role as a member and any private or other
external interest they might have.
3 Confirmation
of Minutes
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That the Regulatory Committee:
a)
confirm the ordinary minutes of its meeting,
held on Thursday, 9 November 2017, including the
confidential section, as a true and correct record.
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4 Petitions
At the close of
the agenda no requests to present petitions had been received.
5 Public
Input
Standing Order
7.7 provides for Public Input. Applications to speak must be made to the
Governance Advisor, in writing, no later than one (1) clear working day
prior to the meeting and must include the subject matter. The meeting
Chairperson has the discretion to decline any application that does not meet
the requirements of Standing Orders. A maximum of thirty (30) minutes
is allocated to the period for public input with five (5) minutes
speaking time for each speaker.
At the close of
the agenda no requests for public input had been received.
6 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.
7 Extraordinary
Business
Section 46A(7)
of the Local Government Official Information and Meetings Act 1987 (as amended)
states:
“An item that
is not on the agenda for a meeting may be dealt with at that meeting if-
(a) The local
authority by resolution so decides; and
(b) The presiding member
explains at the meeting, at a time when it is open to the public,-
(i) The
reason why the item is not on the agenda; and
(ii) The reason why the
discussion of the item cannot be delayed until a subsequent meeting.”
Section 46A(7A)
of the Local Government Official Information and Meetings Act 1987 (as amended)
states:
“Where an
item is not on the agenda for a meeting,-
(a) That item may be discussed
at that meeting if-
(i) That item is a minor
matter relating to the general business of the local authority; and
(ii) the presiding member
explains at the beginning of the meeting, at a time when it is open to the
public, that the item will be discussed at the meeting; but
(b) no resolution, decision or
recommendation may be made in respect of that item except to refer that item to
a subsequent meeting of the local authority for further discussion.”
8 Notices
of Motion
There were no
notices of motion.
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Regulatory Committee
08 February
2018
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Options
on the development of alcohol licensing fees to replace default fees set by
Central Government
File No.: CP2018/00448
Te take mō te pūrongo / Purpose of the report
1. To
consider the appropriate level of cost recovery for the alcohol licensing
activities and determine actions required to achieve that level of recovery.
Whakarāpopototanga matua / Executive summary
2. The
Sale and Supply of Alcohol (Fees) Regulations 2013 set out the fees that
territorial authorities can charge to recover the cost relating to licensing
and other matters under the Sale and Supply of Alcohol Act 2012. These
default fees can be altered and tailored by a council through a bylaw.
3. When
setting the fees in 2013 it was the Government’s intention that the
alcohol licensing process should be funded as far as practicable by those
applying for licences and certificates.
4. From
July 2016 to December 2017 the Council has applied the default licensing fee
regime provided through government regulation. The rate of cost recovery
has varied between 65% to 89% dependent on the type and volume of licences
received and the method used to determine corporate overheads.
5. The
Regional Strategy and Policy Committee resolved in February 2015 to review the
licensing fees regime following implementation of the Local Alcohol Policy;
however the Policy is still subject to appeal and judicial review and is not
expected to be implemented for at least 9 to 12 months. It is therefore
timely for the Committee to determine what level of cost recovery they expect
from the alcohol licensing process so that steps can be taken to achieve the
level of recovery required.
6. The
Ministry of Justice has recently completed a review of the default alcohol
licensing fees and has reported their conclusions to the Associate Minister,
Hon Aupito Willian Sio who has until mid-March to decide whether to amend fees.
7. In
the event that the Associate Minister’s decision does not permit the
Committee’s required level of cost recovery to be achieved, the Council
will need to decide whether to increase licensing fees through a
bylaw.
8. Before
making a bylaw prescribing fees, the Council must consult those who are
representative of interests likely to be substantially affected by the bylaw,
e.g. Hospitality New Zealand and the Restaurant Association of New
Zealand. The consultation and subsequent recommendations to the Committee
would be led be the Community and Social Policy Department with support from
Regulatory Services.
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Ngā tūtohunga / Recommendation/s
That the Regulatory Committee:
a) agree
that the recovery of costs incurred by council in the alcohol licensing
process should be 100%
b) note
that the Associate Minister of Justice will decide by mid-March 2018 whether
the Government will increase the default alcohol licensing fees
c) agree
that if the Associate Minister’s decision does not enable a 100%
recovery of the costs incurred by council in the alcohol licensing process,
the General Manager, Community and Social Policy should commence work to
implement a fees bylaw that will allow the appropriate cost recovery.
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Horopaki / Context
9. The
Explanatory note to the Sale and Supply of Alcohol (Fees) Regulations
2013 states, amongst other things, “These regulations… set out
fees payable to territorial authorities and the Alcohol Regulatory and
Licensing Authority to ensure that so far as is practicable their costs
relating to licensing and other matters under the Sale and Supply of Alcohol
Act 2012 are recovered.”
10. The current
government default fees were set in November 2013.
11. On 5 February
2015 the Regional Strategy and Policy Committee resolved (REG/2015/7) that it:
· Note
that the majority of council’s relevant costs were recovered from the
existing default fees regime for the twelve months to December 2014.
· Confirm
the continuance of the default licensing fees regime.
· Review
the default licensing fees regime after a suitable period of time has elapsed
following the implementation of the Local Alcohol Policy.
12. In the last
two years the Local Alcohol Policy has not been implemented and is still
subject to appeal and judicial review. It is anticipated that it will be
at least 9 to 12 months before the Policy can be implemented.
13. It should be
noted that at that time the ‘relevant costs’ consideration did not
include the corporate overhead costs of the alcohol licensing process as it was
believed that they could not be taken into account when reporting the
expenditure on alcohol licensing. This has recently been clarified by the
Ministry of Justice who state that all costs of running the licensing system
can be taken into account including indirect costs and overheads.
Tātaritanga me ngā tohutohu / Analysis and advice
14. From January
2014 to June 2015 cost recovery gradually increased from 44% to 68%.
15. In the year
July 2015 to June 2016 cost recovery was 89%. This was achieved through a
larger number of applications than usual being received and a lower than usual
corporate overhead charge.
16. The most
recent 18 months from July 2016 to December 2017 had a cost recovery of
78%. It is anticipated that cost recovery will be able to be maintained
at this level for another year at the current fee rates. This is because
overdue annual fees are being collected at a greater rate than previously and
direct costs are relatively stable.
17. The Ministry
of Justice has recently completed a review of the default alcohol licensing
fees and has reported their conclusions to the Associate Minister. The
Associate Minister of Justice has until 17 March 2018 to decide whether to
raise the fees.
18. With the
implementation of the Local Alcohol Policy some way off, and with the costs
recovered by way of fees over the last 18 months being approximately 78% of
costs incurred it is felt that now is the time to review the licensing fees
regime. The initial key decision for the Committee at this time is to
determine what level of cost recovery they require for the alcohol licensing
process. This will then determine what action, if any, is needed to
achieve the expected cost recovery.
19. In the event
that the Associate Minister does raise the fees then it is likely that the fee
increase will allow full recovery of costs incurred and no further action may
be necessary by council. If however the Associate Minister decides not to
raise the fees or the fee increase does not allow for recovery of costs to the
level expected by the Committee, then a decision will need to be made whether
to increase licensing fees through a bylaw.
20. A fees
increase by the Associate Minister would need to be at least 28% across the
board to achieve full cost recovery. Revenue in the last financial year
was $4.8 million, a shortfall of $1.4 million for full cost recovery.
21. The setting
of licensing fees by way of a bylaw is permitted by section 405 of the Sale and
Supply of Alcohol Act 2012, and also the Sale and Supply of Alcohol
(Fee-setting Bylaws) Order 2013.
22. Before making
a bylaw prescribing fees, the Council must consult those who are representative
of interests likely to be substantially affected by the bylaw, e.g. Hospitality
New Zealand and the Restaurant Association of New Zealand. The
consultation process and subsequent recommendations to the Committee would be
carried out by the Community and Social Policy Department with the assistance
of Regulatory Services
Ngā whakaaweawe ā-rohe me ngā tirohanga a te
poari ā-rohe /
Local impacts and local board views
23. This report
relates to approaches to regulatory fees. The view of local boards has not been
sought for this report. Local boards are involved in wider alcohol harm
reduction related work.
Tauākī whakaaweawe Māori / Māori impact
statement
24. This report
does not raise any specific issues relating to Māori. Previous wider
alcohol harm reduction related work has included the involvement of various iwi
and related groups.
Ngā ritenga ā-pūtea / Financial implications
25. Setting an
expected cost recovery figure of 100% and putting in place a fees regime to
meet that will save ratepayer funding of approximately $1.4 million each year.
26. There is a
cost to the Council in terms of the development, notification and hearing of
any new bylaw. This will be funded from within existing budgets.
Ngā raru tūpono / Risks
27. The industry
is likely to be critical of the rising cost of fees, albeit that the fees have
been the same since December 2013.
28. As far as
Special Licences are concerned there is a risk that if fees are set too high
some groups will just choose to take the risk of running an event without a
licence.
29. The
fee-setting bylaw will be undertaken under special consultative procedures.
While this process is more targeted to those most affected and is shorter, it
may not align with expectations from some sectors, including individual
licensees. The options for engaging with industry stakeholder groups, licensees
and other groups will need to be considered if a decision is made for the
council to set its own fees.
30. The council
will need to be confident in the actual cost and revenue information and the
modelling of this. Setting fees too high or too low could risk reputational
damage to council.
Ngā koringa ā-muri / Next steps
31. Once the
committee has set an expected cost recovery figure, staff can do initial work,
leading up to the decision by the Associate Minister in mid-March, to identify
the consultation process which would be needed if a new bylaw was required.
Ngā tāpirihanga / Attachments
There are no attachments for
this report.
Ngā kaihaina / Signatories
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Author
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Rob Abbott - Manager Alcohol Licensing
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Authorisers
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Grant Barnes - General Manager Licensing and
Compliance Services
Penny Pirrit - Director Regulatory Services
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Regulatory
Committee
08 February
2018
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Proposal for cost recovery of
investigations and resolutions of non-compliant activities
File No.: CP2018/00450
Te take mō te pūrongo / Purpose of the report
1. To
agree to introduce a charge that recovers the cost of investigations for some
compliance activities.
Whakarāpopototanga matua / Executive summary
2. Regulatory
Services respond to approximately 120,000 requests for service each year. Of
these, 90,000 are responded to by compliance officers in the Regulatory
Compliance unit.
3. Many
interventions are resolved quickly and amicably by skilled and experienced
compliance officers. A relatively small number are particularly serious,
impacting public safety or environmental wellbeing. In many of these
instances the attitude of individual(s) to addressing compliance is poor and a
confounding factor. Escalated compliance action is therefore
warranted.
4. These
interventions consume significant amounts of staff time. The costs of
which are not incurred by the liable party, rather they are met by the
ratepayer.
5. Council
has the legal means to recover the costs of compliance in certain
circumstances. Invoicing the cost of these investigations where
appropriate will ensure the liable party pays for the infractions rather than
the ratepayer.
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Ngā tūtohunga / Recommendation/s
That the Regulatory Committee:
a) agree
that the financial cost of regulatory compliance investigations are recovered
from liable parties, specifically;
i) where
the time spent on the compliance inspection(s) is more than 2 hours;
ii) where
the attitude to compliance exacerbates the time taken to reach a resolution
and significantly contributes to the costs incurred by council, and
iii) where
the investigation does not result in any other form of financial penalty
– either through court or an infringement notice.
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Horopaki / Context
6. The
Regulatory Services Directorate conducts compliance under a number of
significant statutes, including the Resource Management Act 1991, Building Act
2004 and Local Government Act 2002. Secondary regulations and bylaws add
to compliance obligations.
7. The
volume of compliance activities is significant, with approximately 90,000
requests for service received by the Regulatory Compliance unit alone.
8. Demand
for compliance services is increasing. Volumes increased between 8 to 25%
in the year ending December 2016, with resource management breaches and noise
complaints experiencing significant increases.
9. All
regulatory compliance activities have recently been consolidated into a single
Regulatory Compliance unit, creating a central point of accountability.
All requests for serviced received are routed, triaged, allocated and tracked
by a dedicated Regulatory Dispatch team.
10. Complementary
to the new structure, in October 2017 the Regulatory Committee endorsed a shift
to a strengthened compliance approach.
11. The new
approach is evidence led and prioritises our response to high harm/high risk
incidents. This ensures effort is targeted to non-compliance where the
greatest impact on public health and safety and environmental values is
evident.
12. The new
approach is supported by making the most of the full complement of tools that
we have available as a result of the consolidated regulatory compliance
toolbox.
Tātaritanga me ngā tohutohu / Analysis and advice
13. To date,
Auckland Council has only on-charged the cost of compliance investigations
where either the offending party had a resource consent that was being
monitored or in a limited number of pollution response incidents.
14. In the very
small proportion of instances where an investigation results in enforcement
action, costs are also sought through the court process.
Statutory
basis
15. Advice
regarding the grounds to recover costs has been sought from Legal Services and
is summarised below
· Section 150 of the Local Government Act 2002 allows for cost
recovery for compliance inspections under a bylaw if the bylaw provides for
that inspection.
· Section 219 of the Building Act 2004 allows for cost recovery for
compliance inspections.
· Section 150 of the Local Government Act 2002 may be used for the
recovery of compliance inspection costs under the jurisdiction of the Resource
Management Act 1991; however this is practically untested and may be incur a
legal challenge.
Benefits
16. Seeking
the recovery of costs incurred adds another tool to assist with resolving
non-compliance and changing the behavior of non-compliant parties. It is
anticipated to encourage the speedier resolution of non-compliance and to serve
as a reminder to avoid the future costs of non-compliance.
17. Recovering
some of the cost of these investigations will add to operational revenue and
alleviate in part budgetary pressures.
18. This
proposal also addresses practice inconsistencies. Currently, those who do
‘the right thing’ and actively enter the regulatory system by
obtaining resource consent are charged for the cost of investigations as part
of the council’s compliance monitoring programme.
In contrast, those who do not seek approval are not charged and instead that
cost is met by the ratepayer.
Risks
19. There
is a risk of legal challenge where recovery of costs arising from investigating
breaches of the Resource Management Act 1991. Legal advice has been
sought on the likelihood of legal challenge concludes that the risk is minimal
given the financial quantum of costs sought are likely to be relatively small.
If challenged, council could decide whether to proceed with a judicial review
or withdraw the charges. Of note, other councils are currently charging in this
manner and have not been challenged to date.
Proposed
initial criteria
20. This
proposal recommends charging a non-compliant party for the professional time
incurred where the following criteria are met;
· a clear breach and a responsible party had been identified; and
· the responsible party had been warned that we would cost recover;
and
· time spent on the investigation exceeds 2 hours and has been
formally recorded by the investigating officer(s); and
· where the attitude to compliance exacerbates the time taken to reach
a resolution and significantly contributes to the costs incurred by council,
and
· where the investigation does not result in any other form of
financial penalty – either through court or an infringement notice.
21. Three
proposed options are presented below:
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Pros:
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Cons:
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Option one: Status quo
· No charging for compliance investigations
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· No change to processes or resource
demands for Auckland Council.
· No risk of legal challenge
· No impact on customer satisfaction
metrics
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· Does not add to compliance tool kit
· Does not address inequity of ratepayers
meeting costs of compliance
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Option two: Low (recommended)
· Charge when the time spent on the
compliance inspection(s) was more than 2 hours; and
· where the attitude to compliance exacerbates the time taken to
reach a resolution and significantly contributes to the costs incurred by
council, and
· if the investigation did not result in
any other form of fine – either through court or an infringement
notice.
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· Few changes to processes or resources
· Low risk of legal challenge
· Charging is used when it is most needed
and when other existing tools are not applicable or effective.
· Moderate increase in revenue
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· Benefits are restricted to fewer possible
opportunities
· Impact on customer satisfaction metrics
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Option three: High
· Charge for all time spent on compliance investigations
where non-compliance is identified.
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· Significant increase in revenue
· Charging is used in the greatest number
of instances
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· Greater changes to processes and
resources
· Higher risk of legal challenge
· Impact on customer satisfaction metrics
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Recommended
option
22. While
option three has the greatest potential impact on revenue and compliance
resolution rates, there is a greater risk associated with this, particularly at
the outset.
23. It
is recommended that option two is implemented in the first instance and
re-evaluated after 18 months, allowing 6 months implementation and 12 months
monitoring.
24. These
criteria ensure that any charges that are invoiced are only those that are
actual and reasonable costs and the potential for legal challenge is minimised.
25. These
criteria focus the charging on our more time consuming compliance
investigations into breaches of the Building Act 2004, Resource Management Act
1991 and local government bylaws rather than the high volume rapid response requests
for service such as noise control.
26. It
is estimated that approximately 1000 requests for service would meet this
criteria per year.
Ngā whakaaweawe ā-rohe me ngā tirohanga a te
poari ā-rohe /
Local impacts and local board views
27. This report
relates to regulatory fees. The view of local boards has not been sought for
this report.
Tauākī whakaaweawe Māori / Māori impact
statement
28. This report
does not raise any specific issues relating to Māori.
Ngā ritenga ā-pūtea / Financial implications
29. Implementing
charging of compliance investigations will positively impact on revenue
accounted for in Regulatory Compliance. Modelling the financial impact
will be undertaken following the decision of the Committee.
Ngā raru tūpono / Risks
30. There
is a risk of legal challenge of costs incurred investigating breaches of the
Resource Management Act 1991. Legal advice has been sought on the quantum and
likelihood of these risks, which concludes that the risk is minimal and can
mitigated.
Ngā koringa ā-muri / Next steps
31. Implement the
proposal including any updates to systems and training within the 4th
quarter of the 2017/18 financial year, reviewing on a monthly basis for the
first 6 months.
Ngā
tāpirihanga / Attachments
There are no attachments for
this report.
Ngā kaihaina / Signatories
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Author
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Steve Pearce - Manager Regulatory
Compliance
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Authorisers
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Grant Barnes - General Manager Licensing and
Compliance Services
Penny Pirrit - Director Regulatory Services
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|
Regulatory
Committee
08 February
2018
|
|
Update on the proactive boarding house
inspections in South and Central Auckland
File No.: CP2018/00500
Te take mō te pūrongo / Purpose of the report
1. To provide an update on the proactive boarding houses inspections
programme.
Whakarāpopototanga matua / Executive summary
2. This report was placed on the November agenda; however the meeting
did not have enough time to consider its business items and was deferred to the
February 2018 meeting. The report has been updated to include the results from
the inspections in Central Auckland.
3. The fourth and fifth rounds of proactive inspections of boarding
houses have been conducted in South and Central Auckland. These inspections
have reinforced the benefits of the “targeted initiatives approach”
and support the Regulatory Committee’s recent endorsement for a
strengthened approach to compliance by ensuring that interventions are
proportionate, focused on areas of high harm and risk.
4. The inspections again included building and fire safety,
environmental health and sanitation, and Auckland Unitary Plan
requirements. Inspections were undertaken in conjunction with the New
Zealand Fire and Emergency Service and the Tenancy Compliance and
Investigations Unit of the Ministry of Business, Innovation and Employment
(MBIE).
5. Twenty one boarding houses were inspected, thirteen in South
Auckland and eight in Central Auckland. Of the 13 boarding houses inspected in
South Auckland; seven were inspected for the first time, with the remainder a
follow up to their initial inspection in 2015. It was notable that
boarding houses previously inspected had better compliance levels than the
boarding houses inspected for the first time.
6. Breaches observed included unauthorised changes to the use of
buildings, unauthorised building work, fire safety issues, poor cleanliness,
mould growth, overcrowding and poor maintenance.
|
Ngā tūtohunga / Recommendation/s
That the Regulatory Committee:
a) receive the update on the proactive boarding house inspections in
South and Central Auckland.
|
Horopaki / Context
7. The three previous rounds of proactive inspections have resulted in
boarding houses with increased compliance levels relating to building safety,
environmental health, and sanitation and resource management regulations.
8. The regulatory standards for boarding houses are provided by the
Building Act 2004 and the Building Code 1992, the Health Act 1956 and the
Housing Improvement Regulations 1947, the Resource Management Act 1991 and the
Auckland Unitary Plan, and the Residential Tenancies Act 1986.
Tātaritanga me ngā tohutohu / Analysis and advice
Methodology
9. A list of target boarding houses was determined based on
intelligence held by Auckland Council and MBIE, with input from other agencies.
10. Twenty one boarding houses were chosen for inspection from a list of
over hundred boarding houses in South and Central Auckland. Six were previously
inspected.
11. Inspection notification letters were sent to all boarding houses to
encourage the operators to take measures to ensure compliance with existing
legislation.
12. The twenty one boarding houses to be inspected were sent
notification letters with 5-10 days prior to inspection. A contingency plan was
established in the event that a boarding house would require immediate closure
due to extremely unsafe conditions.
Inter-agency
Collaboration
13. On-site inspections were carried out jointly by council compliance
staff, the New Zealand Fire and Emergency Service and Tenancy Compliance and
Investigations Unit of MBIE.
Results
14. It was notable that properties which had been inspected previously
were more compliant than those inspected for the first time. Of the six
boarding houses re-inspected as part of this project, four had no compliance
issues and the remaining two had some minor issues relating to maintenance and
unconsented work.
15. For the fifteen boarding houses inspected for the first time, five
properties breached environmental health requirements. Non-compliance included
poor cleanliness, mould growth, and overcrowding.
16. Seven properties with initial inspections were non-complaint with
the building code, which resulted in “Notice’s to Fix” being
issued under the Building Act 2004. The issues were specific to unauthorized
change of use of a building or unauthorized building work.
17. Four properties with initial inspections breached the Resource
Management Act 1991 or the Unitary Plan requirements. Non-compliance related to
“breach of site coverage, additional cabins on site, breach of boundary
rules and lack of pedestrian markings.
18. MBIE advised that most of Tenancy Agreements audited did not have
adequate statements relating to insulation, lacked information required by the
Act or contained clauses that were inconsistent with the Act. Two
boarding house owners were required to take action to ensure that they were
meeting their obligations relating to tenants bonds.
19. Council staff are working with boarding house owners to remedy the
breaches. Re-inspections will be undertaken to ensure that full compliance is
achieved.
Ngā whakaaweawe ā-rohe me ngā tirohanga a te
poari ā-rohe /
Local impacts and local board views
20. The Mangere-Otahuhu and Otara-Papatoetoe local boards have been
strong advocates of improved boarding house conditions. Council staff together
with MBIE attended the Mangere-Otahuhu Local board workshop in September 2017
to discuss roles, responsibilities and the proactive inspections of boarding
houses.
Tauākī whakaaweawe Māori / Māori impact
statement
21. This proactive compliance programme aims to improve living
conditions and protect the rights of tenants. Ensuring greater compliance with
relevant statutes and regulations will improve living conditions in boarding
houses and thus enhance the rights of tenants, including Maori.
Ngā ritenga ā-pūtea / Financial implications
22. No direct
financial implications as these inspections have been undertaken as part of
Licensing and Regulatory Compliance’s programme of proactive
inspections. No revenue is generated from these activities.
Ngā raru tūpono / Risks
23. This was the fourth and fifth annual inspections of boarding houses,
building on previous operations in South and West Auckland. The quality of
boarding houses inspected is markedly improved compared with previous years,
particularly for the ones which had been inspected previously.
24. The severity of non-compliance is also less than previously
observed. Non-compliance was assessed on the risk of significant harm to
tenants, with landlords required to immediately address shortcomings. Failure
to do so would have resulted in strict enforcement action. Compliance has been
achieved to date through issuance of statutory notices rather than prosecution.
The latter however will remain an option in the event of willful non-compliance.
25. Staff have previously advised of the adequacy of the existing
regulatory regime to address the conditions of boarding houses in Auckland.
These inspections reinforce this advice of adequate regulatory tools. This
position is further strengthened with the collaboration of MBIEs Tenancy
Compliance and Investigations Unit and the New Zealand Fire Service.
Ngā koringa ā-muri / Next steps
26. Working collaboratively with MBIE was of benefit to both
organisations. There is agreement that further proactive inspections will
include MBIE compliance staff.
Ngā
tāpirihanga / Attachments
There are no attachments for
this report.
Ngā kaihaina / Signatories
|
Author
|
Mervyn Chetty - Manager Environmental Health
|
|
Authorisers
|
Grant Barnes - General Manager Licensing and
Compliance Services
Penny Pirrit - Director Regulatory Services
|
|
Regulatory
Committee
08 February
2018
|
|
Resource Consents: Quarterly Hearings
Report November 2017
File No.: CP2018/00503
Te take mō te pūrongo / Purpose of the report
1. To
provide a quarterly update of regulatory hearings under the Resource Management
Act 1991.
Whakarāpopototanga matua / Executive summary
2. This report was placed on the November agenda, however the meeting
did not have enough time to consider its business items and was deferred to the
February 2018 meeting.
3. This
report provides a summary of hearings held in the period 1 July to 30 September
2017 and the commissioners appointed to those hearings.
|
Ngā tūtohunga / Recommendation/s
That the Regulatory Committee:
a) receive the Resource Consents: Quarterly Hearings Report November
2017.
|
Horopaki / Context
4. The
Regulatory Committee holds the responsibility for regulatory hearings required
by relevant legislation. The majority of these fall within the area of resource
consents and notices of requirement under the Resource Management Act 1991. The
Committee oversees who the decision maker(s) should be in relation to the
matters that need to be heard, and the position to be taken in regards to any
appeals of those decisions.
5. The
delegation to appoint hearing commissioners has been delegated to staff.
Guidance for the assignment of commissioners to a particular hearing follows
clauses 3.7 to 3.12 of the Regulatory Committee Policy. The staff in assigning
commissioners must therefore take into account the nature and issues raised by
an application, and hence the need for particular expertise including
mataurangi Maori and tikanga Maori. Local Board members as commissioners can
also be considered for matters that are significant or contentious.
6. The
assignments of the hearing commissioners for this three month period, is as set
out in Attachment A. The assignments occur well in advance of the hearing and
therefore an assigned alternate will often be part of the actual hearing panel
due to availability.
7. The
reporting of resource consent appeals occurs separately as part of a monthly
up-date appeals report.
Tātaritanga me ngā tohutohu / Analysis and advice
8. The
analysis and advice is provided during the hearings process. This report
is a summary of hearings held as outlined in the Regulatory Committee Policy.
Ngā whakaaweawe ā-rohe me ngā tirohanga a te
poari ā-rohe /
Local impacts and local board views
9. Local Boards are not involved with the appointment of commissioners.
Tauākī whakaaweawe Māori / Māori impact
statement
10. The decision
requested of the Regulatory Committee is to receive this report rather than
appoint commissioners to hearings. The Committee policy at 3.7 includes
“the desirability of appointing a person with relevant expertise in
mataurangi Maori and tikanga Maori” as a consideration in the appointment
of hearing panel members. Further policy 3.8 states “Where a matter
covers areas of significance to Maori, council staff will consult with IMSB
staff on the appointments”.
Ngā ritenga ā-pūtea / Financial implications
11. The cost of independent hearing commissioners is covered by the
applicants of those applications that are required to be heard.
Ngā raru tūpono / Risks
12. Hearing
commissioners are appointed from the pool of independent commissioners due to
their professionalism, expertise and experience. A small number of Local
Board members that hold the Good Decision Making accredited may also sit as
commissioners. These processes in addition to staff reporting ensure a
high quality of informed decision-making and avoid any procedural or judicial
risks.
Ngā koringa ā-muri / Next steps
13. The next
report will be due in April 2018.
Ngā
tāpirihanga / Attachments
|
No.
|
Title
|
Page
|
|
a⇩
|
Hearings Held 1 July 2017 to 30 September 2017
|
25
|
Ngā kaihaina / Signatories
|
Author
|
Robert Andrews – Principal Specialist
|
|
Authorisers
|
Ian Smallburn - General Manager Resource Consents
Penny Pirrit - Director Regulatory Services
|
|
Regulatory
Committee
08 February
2018
|
|
|
Regulatory
Committee
08 February
2018
|
|
Regulatory Committee Summary of
Information Items - 8 February 2018
File No.: CP2018/00484
Te take mō te pūrongo / Purpose of the report
1. To
note progress on the forward work programme (Attachment A).
2. To
provide an update of all current resource consent appeals lodged with the Environment
Court (Attachment B).
3. To
provide a public record of memos, workshop or briefing papers that have been
distributed for the Committee’s information since 9 November 2017 (Attachment
C).
Whakarāpopototanga matua / Executive summary
4. This
is a regular information-only report which aims to provide public visibility of
information circulated to committee members via memo or other means, where no
decisions are required. There have been no circulations made since the
September meeting.
5. The
workshop papers and any previous documents can be found on the Auckland Council
website at the following link: http://infocouncil.aucklandcouncil.govt.nz/
· at
the top of the page, select meeting “Regulatory Committee” from the
drop-down tab and click ‘View’;
· under
‘Attachments’, select either HTML or PDF version of the document
entitled ‘Extra Attachments’.
6. The
following paper was circulated to members:
· 27
November 2017 – memo re: Appeals to the Amended Provisional Local Alcohol
Policy
7. Note
that, unlike an agenda decision report, staff will not be present to answer
questions about these items referred to in this summary. Committee
members should direct any questions to the authors.
|
Ngā tūtohunga / Recommendation/s
That the Regulatory Committee:
a) receive
the information report.
|
Ngā
tāpirihanga / Attachments
|
No.
|
Title
|
Page
|
|
a⇩
|
Forward Work Programme
|
31
|
|
b⇩
|
Update of all current resoruce consents appeals lodged
with the Environment Court
|
35
|
|
c⇨ 
|
27 November 2017 Memo re: Appeals to the Amended
Provisional Local Alcohol (Under Separate Cover)
|
|
Ngā kaihaina / Signatories
|
Author
|
Maea Petherick - Senior Governance Advisor
|
|
Authoriser
|
Penny Pirrit - Director Regulatory Services
|
|
Regulatory
Committee
08 February
2018
|
|
|
Regulatory
Committee
08 February
2018
|
|
|
Regulatory
Committee
08 February
2018
|
|
|
Regulatory
Committee
08 February
2018
|
|
|
Regulatory
Committee
08 February
2018
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