Agenda of Regulatory Committee

Terms of Reference

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.

1 Apologies

Apologies from Cr E Collins and Cr R Hills have been received.

2 Declaration of Interest

Members are reminded of the need to be vigilant to stand aside from decision making when a conflict arises between their role as a member and any private or other external interest they might have.

3 Confirmation of Minutes

That the Regulatory Committee:

a) confirm the ordinary minutes of its meeting, held on Thursday, 8 February 2018, as a true and correct record.

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.

Regulatory Committee

08 March 2018

Ara Tūhono Warkworth to Wellsford project - Notice of Requirement, Resource Consents and Environmental Protection Authority Process 2018

File No.: CP2018/01711

Te take mō te pūrongo / Purpose of the report

1. To outline the route protection (designation) and resource consent process for the New Zealand Transport Agency’s Ara Tūhono - Warkworth to Wellsford Project and to recommend a response to a request from the Environmental Protection Authority for the council’s views on the way it should be processed.

Whakarāpopototanga matua / Executive summary

2. The New Zealand Transport Agency (the Agency) is preparing a notice of requirement and resource consent applications (applications) under the Resource Management Act 1991 to protect and construct the second stage of the Ara Tūhono Pūhoi to Wellsford Project that covers the State Highway 1 (SH1) corridor from the Northern Gateway Toll Road at the Johnstone’s Hill tunnel, to Wellsford and Te Hana.

3. NZTA intends to lodge its applications with the Environmental Protection Authority (Authority) in May 2018, and will request the applications are referred to a Board of Inquiry, on the basis that the Warkworth to Wellsford project is a matter of national significance. This would result in a significantly faster processing time.

4. The Authority has written to the council on behalf of the Minister of the Environment, formally seeking the council’s views on:

i. How the proposal should be processed

ii. Auckland Council’s capacity to process the application

iii. Any nominations for Board of Inquiry members, in the event a Board of Inquiry is established

5. For clarity, the request is for the council’s views on the process for considering the Warkworth to Wellsford Project, not the merits or details of the project.

Ngā tūtohunga / Recommendation/s

That the Regulatory Committee:

a) agree that the council’s response to the Environmental Protection Authority in relation to the notice of requirement and applications for resource consent for the Warkworth to Wellsford Projects is to:

i) agree that the Warkworth to Wellsford Project is a proposal of national significance

ii) recommend that the Warkworth to Wellsford Project should be referred to a Board of Inquiry

iii) confirm that Auckland Council has the capacity to process the matter if required.

b) delegate to the Chair and Deputy Chair of the committee and a member of the Independent Māori Statutory Board, working with Manager North West & Islands Planning and the Manager North West Resource Consents, the task of preparing a list of potential Board of Inquiry members with expertise in the areas of planning, ecology, engineering, landscape architecture, and tikanga Māori, should the Minister refer the Warkworth to Wellsford Project to a Board of Inquiry.

Horopaki / Context

6. The Warkworth to Wellsford Project is the second stage of the Ara Tūhono Pūhoi to Wellsford Project covering the State Highway 1 (SH1) corridor from the Northern Gateway Toll Road at the Johnstone’s Hill tunnels, to Wellsford and Te Hana. A Board of Inquiry confirmed the Notices of Requirement and granted resource consents for the first stage of the project, from Pūhoi to Warkworth, in September 2014, and this is now under construction.

7. The Project is a proposed four-lane, motorway standard, offline alternative to State Highway 1 in the north of Auckland. The Indicative Route commences at the interface with the Pūhoi to Warkworth Project, near Wyllie Road, and passes to the west of the existing SH1 alignment near The Dome, before crossing SH1 just south of the Hoteo River. North of the Hoteo River the indicative route bypasses Wellsford and Te Hana to the east. The Project ties into SH1 to the north of Te Hana.

8. The Puhoi to Wellsford Project is recognised in the Auckland Plan as a key inter-regional connection, as nationally important and that aims to help revitalise the Northland economy (Auckland Plan Directive 13.8).

9. The New Zealand Transport Agency objectives for the Project are to:

· Increase long-term corridor capacity, improve route quality and safety, improve freight movement and provide resilience in the wider State Highway network;

· Improve travel time reliability and decrease travel times between Warkworth to Wellsford and Northland;

· Alleviate congestion at Warkworth and Wellsford by providing for through traffic.

10. The Agency wishes to secure a designation of land to enable the future construction of the Project. The timing for construction is not confirmed but assessments being undertaken in support of the applications assume a construction start date around 2030.

11. The Agency has consulted on an indicative route and a plan of this is included in Attachment A.

Approval Process

12. The Agency intends to protect and construct the corridor through both the designation and resource consent processes in the Resource Management Act 1991. To do this, the Agency plans to lodge a Notice of Requirement and resource consent applications that identify the corridor in detail and will include an Assessment of Effects on the Environment.

13. The Agency plans to use Part 6AA ‘Proposals of National Significance’ of the Resource Management Act 1991 to have these matters processed by the Authority rather than the Council. This would result in a significantly faster processing time for the Notice of Requirement and associated resource consent applications as it effectively combines the Council and Environment Court hearing processes.

14. The alternative process would be for the Council to notify and process the Notice of Requirement and resource consent applications and provide a recommendation (Notice of Requirement) and decision (resource consent) to the Agency. Following the Agency’s decision, any submitter or the Council could appeal the decision on the Notice of Requirement to the Environment Court. Equally, any submitter could appeal any decision on a resource consent application to the same Court.

15. The process that the Agency is seeking to use involves lodging the Notice of Requirement and resource consent applications with the Authority, which would then notify and process them using a Board of Inquiry or directly refer the matter to the Environment Court. The Authority is required by law to release any decisions or recommendations no more than nine months following the date of notification. These decisions could only be appealed to the High Court on points of law.

16. The Council’s role in this process would be as a potential submitter on the Notice of Requirement and the consent resource applications (rather than the processor of it). The Council would also be required to prepare a report on the key issues in relation to the proposal under section 149G(3) of the Resource Management Act 1991.

17. The Agency intends to lodge the Notice of Requirement documents and resource consent applications with the Authority in May 2018.

18. The Environmental Protection Authority wrote to Auckland Council on 20 December 2017 (Attachment B) regarding the Ara Tūhono Warkworth to Wellsford Project. The letter explains the Authority’s requirement to make a recommendation to the Minister for the Environment and the Minister’s requirement to have regard to the council’s views. Accordingly, the Authority seeks the council’s views on:

· How the proposal should be processed

· Auckland Council’s capacity to process the application

· Any nominations for Board of Inquiry members, in the event a Board of Inquiry is established.

Tātaritanga me ngā tohutohu / Analysis and advice

19. To answer the Environmental Protection Authority’s question on how the proposal should be processed, it is necessary to first determine whether the proposal is of national significance (and therefore whether a Board of Inquiry or direct referral to the Environment Court are options). If the project is considered to be of national significance then the three options to process it (Council, Board of Inquiry or Environment Court) can be evaluated.

Is the Warkworth to Wellsford Project a proposal of national significance?

20. The project is the second part of the Ara Tūhono - Pūhoi to Wellsford Project. To assess whether the project is of national significance, Section 142(3) of the Resource Management Act 1991 is a useful guide as it sets out the criteria for the Minister to consider. The criteria are listed below with an assessment of the proposal against each one.

21. Whether the matter has aroused widespread public concern or interest regarding its actual or likely effect on the environment (including the global environment).

22. The Agency has engaged, and is continuing the engage with key stakeholders, iwi and the wider community on the Project. Based on the strong interest to date, and the level of interest received on the Puhoi to Warkworth Project, it is anticipated that the Project will arouse widespread public interest regarding its actual or likely effect on the environment. Particular areas of interest are likely to include private property impacts, the interchange locations, the tunnel, and the environmental and amenity effects during construction and operation.

23. Whether the matter involves or is likely to involve significant use of natural and physical resources.

24. The Project will be a significant piece of new infrastructure, extending over a distance of approximately 26 kilometers. It will pass through areas of pine forestry, rural and rural-residential land. The project may incorporate several large viaducts and bridges, and potentially a tunnel. Extensive earthworks will be required during a construction period of approximately five years. The construction works may involve area of indigenous vegetation clearance and the alignment will cross, divert and/or culvert a number of permanent and intermittent watercourses. Accordingly, it is considered that the project will involve significant use of natural and physical resources.

25. Whether the matter affects or is likely to affect a structure, feature, place or area of national significance.

26. The indicative route of the project appears unlikely to affect any structure, features, places or areas of national significance. The receiving environment is predominantly rural, rural residential and pine forestry land uses. The indicative route does traverse the Dome Valley which is an area of environmental values (being a habitat for Hochstetter’s frogs and Powelliphanta snails).

27. Whether the matter affects or is likely to affect or is relevant to New Zealand’s international obligations to the global environment.

28. The Project is not likely to directly affect New Zealand’s international obligations to the global environment. However, New Zealand’s obligations under the Framework Convention on Climate Change may be a relevant factor.

29. Whether the matter results or is likely to result in or contribute to significant or irreversible changes to the environment.

30. The construction of 26 kilometers of permanent transport infrastructure will contribute to an irreversible change to the receiving rural, rural-residential and forestry environments.

31. Whether the matter will assist the Crown in fulfilling its public health, welfare, security, or safety obligations or functions.

32. The Project will provide an alternative route to the existing SH1 between Warkworth and north of Te Hana. This will provide for greater security and resilience of the State Highway network in the event of traffic incidents or natural hazards. The project will also reduce congestion and travel times between Warkworth and Te Hana, removing deterrents to travel and improving accessibility between Auckland, Wellsford and the Northland region. By reducing the cost of travel the project will facilitate regional growth and access to key markets in the Auckland and Northland regions.

33. The provision of a motorway-standard alternative route to State Highway 1 through the Dome Valley will significantly reduce the likelihood and severity of crashes in this well-known traffic blackspot. Accordingly, it is considered that the project will assist the Crown in fulfilling its public health, welfare, security, and safety obligations and functions.

34. Whether the matter involves or is likely to involve technology, processes, or methods that are new to New Zealand and that may affect its environment.

35. The construction of the Project is likely to involve best practice technology, processes and methods. These are unlikely to contribute to any significant adverse effects on the environment, and in fact would be more likely to be used to minimise the effects on the environment from the construction.

36. Whether the matter is or is likely to be significant in terms of Section 8.

37. Section 8 of the Resource Management Act 1991 refers to taking into account the principles of the Treaty of Waitangi. Engagement with relevant mana whenua groups is ongoing, as discussed in the Māori Impact Statement in this report.

38. Whether the matter will affect or is likely to affect more than one region or district

39. Although the physical extent of the Project is within the Auckland region, a key benefit of the project is improving transport accessibility between Northland and Auckland. By reducing the cost of travel, the project will facilitate regional growth and access to key markets in the Auckland and Northland regions. Accordingly, it is considered that the project will affect more than one region or district.

40. Whether the matter relates to a network utility operation that extends or is proposed to extend to more than one district or region.

41. State Highway 1 and the new section of the State Highway to be created by the Project is part of a network utility operation that extends to more than one district or region.

Summary

42. Overall, based on the analysis above, it is considered that the Warkworth to Wellsford Project is of national significance. This is reinforced through the inclusion of the road in the Government’s National Infrastructure plan as a Road of National Significance.

43. Should the Warkworth to Wellsford Project be referred to a Board of Inquiry, the Environment Court or the Auckland Council?

44. Having established the project is a matter of national significance there are three different options for processing the proposal. The options are a Council Hearing, Environment Court Hearing or a Board of Inquiry. Each option has different advantages and disadvantages. The Council’s hearing process would potentially be a more comfortable environment for submitters than a formal Environment Court hearing / cross examination process. A Board of Inquiry would likely sit somewhere in between these two processes in terms of formality and ease of access for the public.

45. The timeframe for the Council process would be longer as any decision could be appealed to the Environment Court. The Board of Inquiry and Environment Court processes would only have appeal rights to the High Court on points of law.

46. Overall, it is considered that the Board of Inquiry is the most suitable option for processing this proposal as it strikes a balance between the most efficient method to process the proposal (of national significance) while still enabling the general public to feel comfortable participating in the process.

Does Auckland council have capacity to process the matter?

47. Auckland Council is the largest local authority in New Zealand. Processing complex projects involving notices of requirement and multiple resource consent applications is within the capacity of the Council.

Suggestions for potential Board of Inquiry members

48. Any list of potential Board of Inquiry members should include candidates that have significant experience and expertise in one or more of the following areas:

· Resource management planning

· Ecology

· Engineering

· Landscape architecture

· Tikanga Māori

49. It is recommended that the Chair and Deputy Chair of this committee and a representative from the Independent Māori Statutory Board be delegated to compile a list of names as potential Board of Inquiry members and forward this list onto the Environmental Protection Authority as part of a response letter. The Manager North West and Islands Planning and the Manager North West Resource Consents would be able to support them in this task.

Ngā whakaaweawe ā-rohe me ngā tirohanga a te poari ā-rohe /
Local impacts and local board views

50. The Rodney Local Board was briefed on the Environmental Protection Authority’s letter at its Transport, Infrastructure and Environment Committee workshop on 22 February 2018. The Rodney Local Board is supportive of the Warkworth to Wellsford project and wants to see the designation and consents processed quickly. The local board would prefer a Board of Inquiry method is used for this project. This is because it would allow a stream-lined process while still enabling local residents to attend a hearing at a local facility and in a less formal setting than the Environment Court. The local board did not have any suggestions for members of a Board of Inquiry.

Tauākī whakaaweawe Māori / Māori impact statement

51. The Agency is continuing to work with Hōkai Nuku on the Project. Hōkai Nuku is a collective formed in 2010 by mana whenua within the Pūhoi to Wellsford project area, and includes Ngāti Manuhiri, Ngāti Wai, Ngāti Mauku/Ngāti Kauwae (Te Uri o Hau), Ngāti Rango (Ngāti Whātua o Kaipara) and Ngāti Whātua.

52. Hōkai Nuku is actively involved in the current construction phase of the Puhoi to Warkworth project and is also actively involved in discussions on Warkworth to Wellsford. This has included various technical discussions and participation in site visits and field investigations. The Agency states that it’s understanding is that Hōkai Nuku is fully in support of the project

53. In mid-2017, the Agency also asked other iwi with potential interests in the Rodney Local Board area whether they wished to be involved in the Project. Ngati Maru, Te Kawerau a Maki and Ngati Paoa all expressed an interest in the Project area. The Agency has met with representatives of those iwi and invited them to prepare Cultural Values Assessments. To date, no significant concerns have been raised about the Project

Ngā ritenga ā-pūtea / Financial implications

54. Should the council process the proposal then the council can charge its processing time to the requiring authority (New Zealand Transport Agency). Should the matter be processed via a Board of Inquiry or the Environment Court then the council may choose to submit on the proposal. Any submission and expert evidence at a hearing will be at the cost of the Council.

Ngā raru tūpono / Risks

55. The risks in responding to the Environmental Protection Authority’s letter are low. It should be noted that the council’s response is not a decision but simply a council view that is expressed to the Minister for the Environment. The Minister can make a decision as he sees fit.

Ngā koringa ā-muri / Next steps

56. Council staff will respond by letter to the Environmental Protection Authority with the recommendations of this committee.

Ngā tāpirihanga / Attachments

No.	Title	Page
a ⇩	Indicative Route Map - Attachment A	17
b ⇩	Letter from Environmental Protection Authority dated 20 December 2017	19

Ngā kaihaina / Signatories

Author

Ryan Bradley - Planner

Authorisers

John Duguid - General Manager - Plans and Places

Penny Pirrit - Director Regulatory Services

Regulatory Committee

08 March 2018

Revocation of a resolution endorsing the construction of a stormwater channel through 1 Takanini School Road

File No.: CP2018/02258

Te take mō te pūrongo / Purpose of the report

1. To revoke a resolution made by the Regulatory Committee on 6 July 2017, which endorsed the construction of a stormwater channel through 1 Takanini School Road.

Whakarāpopototanga matua / Executive summary

2. On 6 July 2017 the Regulatory Committee considered an objection by the Sabatier Trust to construct a stormwater overland flow path channel through 1 Takanini School Road.

3. The committee endorsed construction of the stormwater channel to enable a housing development by Addison Developments (resolution number REG/2017/68). This resolution was appealed to the District Court by the Sabatier Trust.

4. In the meantime, Addison Developments has pursued a different drainage solution to avoid delay to its housing development project and has formally withdrawn its section 460 application

5. Despite the withdrawal, and assurances that no construction will take place on its land, Sabatier Trust seeks to proceed with its appeal of the resolution.

6. In response to this, the Regulatory Committee has two options. These are:

· option one: status quo, to leave the resolution standing

· option two: to revoke the resolution (the preferred option).

7. If the resolution stands, as per option one, Auckland Council will need to participate in an unnecessary court hearing arguing in support of the committee’s decision.

8. This will create costs for the council and financial and reputational risks if the court finds against us, including potential liability for the appellant (Sabatier Trust’s) legal costs.

9. It is therefore recommended that the Regulatory Committee choose option two and revoke its previous resolution.

10. This will formalise the withdrawal of Addison’s application, meaning that the council can avoid the costs and risks of an unnecessary court hearing.

Ngā tūtohunga / Recommendation

That the Regulatory Committee:

a) revoke the following decision carried at the 6 July 2017 meeting of the Regulatory Committee:

Resolution number REG/2017/68:

That the Regulatory Committee:

b) endorse the construction of an overland flow path channel through Lot 2 DP 157092 at 1 Takanini School Road, Takanini as the only practical route, being the lowest point in the catchment, pursuant to section 460 of the Local Government Act 1974 and as referenced on approved plans under EPA – 2016 - 642 - Stg 6C dated 15th February 2017.

Horopaki / Context

11. On 6 July 2017 the Regulatory Committee approved the following resolution:

Resolution number REG/2017/68

That the Regulatory Committee:

a) determine the objection by the owners of 1 Takanini School Road, Takanini pursuant to section 460 and Schedule 12 of the Local Government Act 1974,

12. The resolution followed an application by Addison Developments to construct an overland flow path channel for drainage purposes across Sabatier Trust land under section 460 of the Local Government Act 1974. This was to enable a development which would provide approximately 600 new houses.

13. Sabatier Trust appealed the resolution to the District Court. As a result, Addison Developments was unable to proceed with the construction of the stormwater channel, and its housing development was stalled.

14. Addison has formally withdrawn its Section 460 application and is proceeding with an alternative stormwater drainage solution to be constructed entirely on its own land. Engineering plan approval has been issued by Auckland Council for this alternative stormwater solution, in the council’s role as future owner of this public infrastructure.

15. This means construction of the overland flow path channel is no longer sought by the applicant, Addison Development. However, despite this Sabatier Trust is still seeking to proceed with its appeal to the District Court.

16. On 26 February 2018, the District Court directed that the appeal proceedings be stayed pending the outcome of the council’s consideration of this item at the 8 March 2018 Regulatory Committee meeting. Attachment A to this report describes the District Court proceedings.

Tātaritanga me ngā tohutohu / Analysis and advice

Options Analysis

17. In considering this situation, the Regulatory Committee has two options.

· Option One: Status quo, or to leave the resolution standing

· Option Two: To revoke the resolution.

Option One

18. If the committee selects option one: the status quo, then the resolution will still stand, even though the underlying application has been withdrawn, because it has not been formally revoked.

19. Despite the withdrawal of the application that led to the resolution, and assurances that no construction will take place on its land, Sabatier Trust has stated a preference for the appeal to be heard regardless.

20. While Auckland Council’s position is that there is no longer any matter to appeal, the council may still be required to attend a half day appeal hearing to defend the decision.

21. This would require the drafting of legal submissions and other preparatory work for a preliminary hearing on whether there is a right of appeal against a decision of the council on a Section 460 application. Around eight hours of legal time and cost would be incurred at the expense of the ratepayer. If the preliminary hearing determines that there is a right of appeal, there would be a further hearing on the merits of the decision and additional legal costs and staff resources preparing evidence.

22. There is also a possibility that the District Court may make an adverse decision against the council, resulting in criticism of our processes and potential liability for the appellants (the Sabatier Trust’s) costs.

Option Two

23. If the committee selects option two, revoking the resolution, then there will no longer be any decision to appeal, and the District Court will not hear it.

24. The District Court Judge has provided guidance (see Attachment A) that if the Regulatory Committee withdraws its resolution then the court hearing will not proceed.

25. This means the council will avoid unnecessary staff time and costs. There is also no risk of an adverse decision against the council.

Preferred option and reasons

26. For these reasons the preferred option is option two, that the Regulatory Committee formally revoke their previous resolution. This will remove any risk that the council be made to participate in an unnecessary court proceeding.

27. As explained above, revoking the resolution will not have any impact on delivery of the housing development because Addison Development have identified an alternative way to achieve stormwater drainage at their site.

Ngā whakaaweawe ā-rohe me ngā tirohanga a te poari ā-rohe /
Local impacts and local board views

28. The Papakura Local Board has not been consulted on the specific decisions recommended in this report, because revoking the resolution will not result in any changes to the planned development in their area.

29. However, the Papakura Local Board Plan notes that a key initiative for the board is to ‘implement initiatives to improve water quality in our streams and Manukau Harbour.’ Effective stormwater management is key to achieving better water quality and the board has previously expressed support for major stormwater projects in the area, such as the Artillery Tunnel.

Tauākī whakaaweawe Māori / Māori impact statement

30. Under Section 460 of the Local Government Act 1974, iwi are not considered a relevant affected party unless they are landowners through which a proposed drain is to be constructed, or where known sites and places of significance to mana whenua are potentially affected by the works. In this case, there are no known sites and places of significance to mana whenua present on the site. Because of this consultation with mana whenua was not undertaken on the initial decision by the committee to endorse a stormwater channel over privately owned land at 1 Takanini School Road.

31. No consultation has been undertaken with mana whenua on the contents of this report, as the recommended decision, to revoke the resolution, will not give rise to any physical works or impact on the land or waterways.

Ngā ritenga ā-pūtea / Financial implications

32. There are no financial implications of the preferred option two: revoking the resolution.

33. As outlined above, there are potential financial implications if the Regulatory Committee chooses option one (status quo) and the council to continues with the appeal proceedings. These include costs of staff time and the potential risk of the council having to cover the appellant’s costs.

Ngā raru tūpono / Risks

34. If the Regulatory Committee selects option one: the status quo and does not revoke the resolution, then as noted above, the council may be required to participate in a court proceeding. This creates a risk of the council incurring unnecessary legal costs.

35. There is also a reputational risk that the council may have an adverse decision against it in the District Court, and its processes criticised. This also creates a financial risk that the council may be found liable for Sabatier Trusts (the appellant’s) legal costs.

36. In contrast, the preferred option two, revoking the resolution, does not create any significant risks. There is a minor reputational risk that the Regulatory Committee will be perceived to be acting in a way that is inconsistent with their previous stance.

37. This risk is mitigated by the changing circumstances related to the project – specifically, that Addison Developments has formally withdrawn the application leading to the initial resolution.

Ngā koringa ā-muri / Next steps

38. If the committee approves revoking the resolution, then the council’s Legal Services team will inform the District Court Judge and Sabatier Trust of this decision. The application will be deemed formally withdrawn and no further action will be required by the council.

Ngā tāpirihanga / Attachments

No.	Title	Page
a ⇩	Guidance from District Court Judge - email received 26 February 2018	25

Ngā kaihaina / Signatories

Authors

Alex Cumming – Senior Solicitor

Mark Iszard – Healthy Waters Strategy and Resilience Manager

Authorisers

Barry Potter - Director Infrastructure and Environmental Services

Penny Pirrit - Director Regulatory Services

Regulatory Committee

08 March 2018

Public safety and nuisance bylaw review and direction for any changes 2018

File No.: CP2018/02201

Te take mō te pūrongo / Purpose of the report

1. To approve the outcome of the statutory review and the direction of any changes to six issues within the Auckland Council Public Safety and Nuisance Bylaw 2013 (Bylaw).

Whakarāpopototanga matua / Executive summary

2. To enable the Regulatory Committee to decide on the statutory review and direct changes to the Bylaw, staff have assessed the Bylaw using Local Government Act 2002 criteria.

3. Staff will report on the 49 issues in the Bylaw at consecutive Regulatory Committee meetings from March to June 2018. This report provides an assessment of six of these issues.

4. Staff recommend that the Regulatory Committee approve the outcome of the statutory review and request staff amend the Bylaw to:

· revoke street naming, building and property numbers, car window washing, and safety or lifesaving equipment clauses

· amend fireworks and storing or packing goods clauses.

5. Taking this approach will remove bylaw clauses for issues that are better addressed in existing legislation and ensure remaining bylaw clauses more effectively and efficiently address the issues now and in the future.

6. There is a risk that this will result in conflict between the Auckland Council and Auckland Transport public safety and nuisance bylaws. Auckland Transport has not yet commenced a review of its public safety and nuisance bylaw.

7. Of the six issues in this report, the recommendation to amend the bylaw about storing and packing goods may create public confusion. Staff will continue to engage with Auckland Transport to mitigate this risk either through appropriate public communication or when Auckland Transport review its bylaw

8. If approved, staff will use the decisions from this and subsequent reports to prepare a statement of proposal for approval of the Regulatory Committee. Public notification will follow, before a final decision is made by the Governing Body.

Ngā tūtohunga / Recommendation/s

That the Regulatory Committee:

As required by section 160(1) of the Local Government Act 2002

a) determine that a bylaw is not the most appropriate way to address the following issues:

i) street naming (clause 10(1)-(3))

ii) building and property numbers (clause 10(4)-(6))

iii) car window washing (clause 6(1)(g))

iv) fireworks in other places (clause 6(3)(b))

v) safety or lifesaving equipment (clause 9(5)(q)).

b) determine that a bylaw is the most appropriate way to address the following matters:

i) fireworks in public places (clause 6(3)(a))

ii) storing or packing goods (clause 8(1)(e)).

c) determine that the Auckland Council Public Safety and Nuisance Bylaw 2013 does not give rise to any unjustified implications under the New Zealand Bill of Rights Act 1990.

d) determine that the Auckland Council Public Safety and Nuisance Bylaw 2013 is not the most appropriate form of bylaw.

As provided for in section 160(3) of the Local Government Act 2002

e) request a statement of proposal that amends the Auckland Council Public Safety and Nuisance Bylaw 2013 as detailed in Attachment A that:

i) repeals bylaw clauses about issues in (a)

ii) amends bylaw clauses about issues in (b).

f) amend the general form of the bylaw as detailed in this report.

Horopaki / Context

The Local Government Act 2002 states the requirements for a statutory bylaw review

9. A statutory review of the Auckland Council Public Safety and Nuisance Bylaw 2013, Te Ture ā-Rohe Marutau ā-Iwi me te Whakapōrearea 2013 (the Bylaw) must be completed by 22 August 2018 (section 158 Local Government Act 2002).

10. To complete the statutory review council must decide whether the Bylaw (section 160(1) Local Government Act 2002, Attachment B) :

· is the most appropriate way of addressing the issues contained in the Bylaw

· is the most appropriate form of bylaw

· gives rise to implications under the New Zealand Bill of Rights Act 1990.

The Local Government Act 2002 also states the steps after completing a statutory review

11. Following the outcome of the statutory review, council can propose that the Bylaw be confirmed, amended, revoked, or replaced (Attachment B contains legislative requirements).

Staff will report on the outcome of the statutory review and direction for any changes in parts

12. Staff will report on issues in the Bylaw at consecutive Regulatory Committee meetings from March to June 2018. Attachment C identifies which issues will be addressed in each of these reports. This supports decision making on a complex bylaw that contains 49 issues.

13. Each report will contain analysis and advice on both the statutory review and direction for any changes.

Tātaritanga me ngā tohutohu / Analysis and advice

14. This report contains an assessment of the following six Bylaw issues using criteria contained in the Local Government Act 2002.

1. street naming	2. building and property numbers
3. car window washing	4. fireworks
5. safety or lifesaving equipment	6. storing or packing goods.

Staff recommend the Bylaw is amended to revoke four, and amend two issues

15. Table 1 below presents the outcome of the statutory review and direction for any changes. The full assessment is contained in Attachment A.

Table 1: Summary of statutory review and direction for any changes contained in Attachment A

Bylaw issue	Recommended outcome of statutory review			Recommended direction for any changes
Bylaw issue	bylaw appropriate to address issue?	Bylaw form appropriate?	No unjustified Bill of Rights implications?	Recommended direction for any changes
Street naming Clause 10(1)(2)(3)	û	û	ü	Revoke all clauses
building and property numbers Clause 10(4)(5)(6)(7)	û	û	ü	Revoke all clauses
Car window washing Clause 6(1)(g)	û	û	ü	Revoke clause
Fireworks in public places Clause 6(3)(a) Fireworks in other places Clause 6(3)(b)	ü	û	ü	Amend to retain clause 6(3)(a) and revoke clause 6(3)(b)
Safety or lifesaving equipment Clause 9(5)(q)	û	û	ü	Revoke clause
Storing or packing goods Clause 8(1)(e)	ü	û	ü	Amend clause

Staff recommend improvements to the general bylaw form

16. Through the statutory review process, opportunities were identified to improve the general form of the Bylaw by:

· drafting changes to the Bylaw to be easier to read while still complying with the Auckland Council Bylaw Standard (resolution RB/2012/9). This could include simplifying language, better use of explanatory notes, use of visuals and hyperlinks

· drafting bylaw clauses in a way that the issuing of infringement notices could apply (where appropriate), if government makes future changes to legislation or regulations to enable this.

17. Staff will identify any further opportunities to improve the general bylaw form in subsequent reports to the Regulatory Committee between April and June 2018.

Ngā whakaaweawe ā-rohe me ngā tirohanga a te poari ā-rohe /
Local impacts and local board views

Local boards are especially concerned about car window washing

18. Local boards were engaged in cluster workshops in March 2017. Local board members consider that all issues in the Bylaw remain a concern to varying degrees. However, nuisance, safety and behaviour issues (particularly intimidating car window washing) were of greatest concern.

19. Local boards were also invited to participate in the Regulatory Committee Workshop on 8 February 2018 which focused on the six issues in this report.

Tauākī whakaaweawe Māori / Māori impact statement

Engagement provides a comprehensive picture of Māori perspectives

20. Staff used culturally appropriate, collaborative engagement to identify the impact of public safety and nuisance behaviours on Māori.

21. Five hui were held with whānau, rangatahi and community from:

· Te Kaha o te Rangatahi Trust

· Te Kura Kaupapa Māori o ngā Maungarongo

· Kootuitui Whānau, Papakura

· Ngāti Whātua Ōrākei whānau

· Ranui Action Project.

22. Rangatahi Māori also shared views on car window washing through UPsouth.

23. Māori expressed the following key views:

· high tolerance for those who engage in car window washing activity based on empathy and understanding of the underlying poverty and hardship of participants

· importance of child safety and a child-safe environment

· need to protect and enhance the environment

· need for greater respect for Māori land and Tikanga Māori by authorities and the public.

Car window washing and environmental controls impact Māori more than others

24. Regulation of car window washing under the bylaw is likely to have a greater impact on Māori given the higher proportion of Māori engaged in these activities.

25. Environmental controls for areas such as parks and beaches are also significant because of the role of Māori as kaitiaki (guardians).

26. Staff analysis and advice in Attachment A includes a Māori impact criterion.

Ngā ritenga ā-pūtea / Financial implications

27. The cost of the bylaw review and implementation will be met within existing budgets.

Ngā raru tūpono / Risks

Alignment of the Auckland Transport Bylaw is the main risk

28. Auckland Transport has a similar public safety and nuisance bylaw to the current Auckland Council bylaw for issues that occur on the Auckland transport system to ensure consistency. However, Auckland Transport has not yet commenced a statutory review of its bylaw.

29. There is a risk of conflict between the Auckland Council and Auckland Transport public safety and nuisance bylaws. Auckland Transport’s bylaw is similar to Auckland Council’s bylaw for 15 issues that could fall under either authority’s jurisdiction. An assessment the six issues covered in this report against the Auckland Transport bylaw is provided as Attachment D.

30. Of these, the recommendation to amend the bylaw to prohibit the use of public places for storing and packing of goods is the only one that may create public confusion. Unless Auckland Transport also amends its bylaw, the bylaws would have different rules for the same activity in the same places. However, this difference would be justifiable as the clauses are seeking to achieve different outcomes (obstruction versus use of public places).

31. Staff will continue to engage with Auckland Transport to mitigate this risk either through appropriate public communication or when Auckland Transport reviews its bylaw.

Some stakeholders may be concerned that some issues would no longer be regulated

32. Some stakeholders may be concerned that revoking certain bylaw clauses may mean those issues are no longer addressed. This can be mitigated by the use of explanatory notes about how issues are still regulated under other legislation, and by giving an opportunity to provide feedback on any changes during the special consultative procedure.

Ngā koringa ā-muri / Next steps

Decisions will inform the development of a proposal for public consultation

33. Staff will use the decisions from this and subsequent reports to meet the requirements of section 160(3) Local Government Act 2002, including to:

· prepare a statement of proposal which will include an amended bylaw and compliance approach

· report to the Regulatory Committee to recommend the Governing Body adopts the statement of proposal for the purposes of public consultation and to appoint a panel to consider public submissions.

Ngā tāpirihanga / Attachments

No.	Title	Page
a ⇩	Statutory review and direction for any changes	33
b ⇩	Key legislation	45
c ⇩	Memo on timing and content of advice to Committee	47
d ⇩	Assessment of recommended changes against Auckland Transport public safety and nuisance bylaw	49

Ngā kaihaina / Signatories

Author

Pania Elliot - Principal Policy Analyst

Authorisers

Michael Sinclair - Manager Social Policy and Bylaws

Penny Pirrit - Director Regulatory Services

Regulatory Committee

08 March 2018

Resource Consents: Quarterly Hearings Report March 2018

File No.: CP2018/02383

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 provides a summary of hearings held in the period 1 October to 31 December 2017 and the commissioners appointed to those hearings.

Ngā tūtohunga / Recommendation/s

That the Regulatory Committee:

a) receive the Resource Consents: Quarterly Hearings Report March 2018.

Horopaki / Context

3. 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.

4. 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.

5. 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.

6. The reporting of resource consent appeals occurs separately as part of a monthly up-date appeals report.

Ngā whakaaweawe ā-rohe me ngā tirohanga a te poari ā-rohe /
Local impacts and local board views

7. Local Boards are not involved with the appointment of commissioners.

Tauākī whakaaweawe Māori / Māori impact statement

8. 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

9. The cost of independent hearing commissioners is covered by the applicants of those applications that are required to be heard.

Ngā tāpirihanga / Attachments

No.	Title	Page
a ⇩	Resource Consent Hearings Held 1 October - 31 December 2017	53

Ngā kaihaina / Signatories

Author

Robert Andrews - Principal Specialist

Authorisers

Ian Smallburn - General Manager Resource Consents

Penny Pirrit - Director Regulatory Services

Regulatory Committee

08 March 2018

Objection against a Menacing Dog Classification

File No.: CP2018/01939

Te take mō te pūrongo / Purpose of the report

1. To determine the objection by Ms Rebecca Maud of the menacing classification issued for her dog Jack.

Whakarāpopototanga matua / Executive summary

2. Section 33A of the Dog Control Act 1996 (DCA) provides that the Auckland Council may classify a dog as menacing when the Council considers that a dog poses a threat to any person, stock, poultry, domestic animal or protected wildlife because of:

i) Any observed or reported behaviour of the dog; or

ii) Any characteristics typically associated with the dogs breed or type.

3. Where a dog is classified as menacing, the owner of the dog must:

a) Not allow the dog to be at large or in any public place, or in any private way, without being muzzled; and

b) Must, if required by the territorial authority, within 1 month, produce to the territorial authority a certificate issued by a veterinarian certifying:

i) That the dog is or has been neutered; or

ii) That for reasons that are specified in the certificate, the dog will not be in a fit condition to be neutered before a date specified in the certificate; and

4. The Auckland Council Animal Management Team classified Jack as a menacing dog following an attack on another dog at Maddills Farm Recreational Reserve in Kohimarama.

5. Ms Maud has objected to the Council’s decision and pursuant to section 33D of the DCA. The matter is now before the Committee for a decision as to whether to uphold or rescind the menacing classification of Jack.

6. In making its determination the committee must have regard to:

a) The evidence which formed the basis for the decision to classify Jack menacing;

and

b) The matters relied on by Ms Maud in support of her objection and

c) Any other relevant matters.

7. Auckland Council must give written notice to the owner of its decision and the reasons for its decision.

8. Staff advise the menacing classification should be upheld based on the evidence of the recent attack and prior menacing history.

Ngā tūtohunga / Recommendation/s

That the Regulatory Committee:

a) hear and determine the objection to the menacing dog classification by Ms Maud by either:

i) upholding the menacing classification; or

ii) rescinding the menacing classification.

b) note that the deliberation process will take place with the public excluded as it may prejudice the decision of the objection.

Horopaki / Context

9. At approximately 5.00pm on Sunday, 10 September 2017 Ms Maud’s dog Jack allegedly attacked another dog at Maddills Farm Recreational Reserve in Kohimarama.

10. Animal Management investigated. Statements were obtained from the complainant which detailed the attack, refer to Attachment A.

11. At approximately 6.15pm officers went to Ms Maud’s property and spoke to her about the attack, refer to Attachment B.

12. A formal statement was taken from Ms Maud on 12 September 2017, refer to Attachment C.

13. The evidence compiled upheld the allegation that Jack attacked the complainant’s dog. A decision was subsequently made in accordance with section 33A of the DCA to classify Jack as menacing. The classification was issued on 12 September 2017, refer to Attachment D.

14. The decision was also made to issue an infringement notice to Ms Maud (notice number 61000049076) under s53(1) of the DCA for failing to keep her dog under control, refer to Attachment E.

15. On 21 November 2017 Ms Maud wrote to the Auckland Council objecting to the menacing classification for her dog Jack, refer to Attachment F.

16. On 19 January 2018 Auckland Council advised Ms Maud that Council will not rescind the menacing classification and the reasons why, refer Attachment G.

17. Ms Maud formally requested a hearing on 19 January 2018 at 11.36am, refer Attachment H.

18. Jack has a history of complaints, refer Attachment J. Ms Maud was previously issued a menacing classification for Jack and an infringement notice on 2 May 2017 for failing to control her dog. The facts of that incident involved Jack attacking another dog.

19. Ms Maud asked the Council to reconsider the earlier classification and infringement, which officers did and resolved to revoke the classification and infringement. Copies of relevant documents are attached, refer Attachment I.

Tātaritanga me ngā tohutohu / Analysis and advice

20. Staff advise the menacing classification should be upheld.

21. The previous classification was rescinded on advice from the dog owner that there would be no repeat of menacing behavior. Regrettably, a further incident has occurred resulting in injury to another dog.

22. The risk to public safety and to other dogs will be eliminated if Ms Maud’s dog is muzzled in public.

Ngā whakaaweawe ā-rohe me ngā tirohanga a te poari ā-rohe /
Local impacts and local board views

23. This report relates to classification of a menacing dog. The views of local boards have not been sought for this report.

Tauākī whakaaweawe Māori / Māori impact statement

24. The content of this report has no adverse effects of Maori.

Ngā ritenga ā-pūtea / Financial implications

25. There are no financial implications.

Ngā raru tūpono / Risks

26. There are no risks.

Ngā koringa ā-muri / Next steps

27. To uphold the decision held by the committee.

28. It should be noted that the deliberation of the decision will be held with the public excluded.

Ngā tāpirihanga / Attachments

No.	Title	Page
a ⇩	Complainants statement	79
b ⇩	AMO investigation statement	83
c ⇩	Ms Mauds statement (dog owner)	87
d ⇩	Councils classification letter to Ms Maud	91
e ⇩	Councils infringement notice to Ms Maud	93
f ⇩	Ms Mauds objection to classification	97
g ⇩	Councils reply re Ms Mauds objection	101
h ⇩	Ms Mauds request for a Hearings	103
i ⇩	Previous manancing classficiations	105
j ⇩	History of complaints	107

Ngā kaihaina / Signatories

Author

Amber Blundell - Acting Team Leader Animal Management Central-East

Authorisers

Grant Barnes - General Manager Licensing and Compliance Services

Penny Pirrit - Director Regulatory Services

Chairperson	Cr Linda Cooper, JP
Deputy Chairperson	Deputy Mayor Bill Cashmore
Members	Cr Fa’anana Efeso Collins
	Cr Richard Hills
	Cr Daniel Newman, JP
	Cr Dick Quax
	Cr Sharon Stewart, QSM
	IMSB Chair David Taipari
	Cr Wayne Walker
	Cr John Watson
	IMSB Member Glenn Wilcox

Ex-officio	Mayor Hon Phil Goff, CNZM, JP

Author	Maea Petherick - Senior Governance Advisor
Authoriser	Penny Pirrit - Director Regulatory Services