I hereby give notice that an ordinary meeting of the Regulatory Committee will be held on:

 

Date:

Time:

Meeting Room:

Venue:

 

Thursday, 13 June 2019

9.30am

Room 1, Level 26
135 Albert St
Auckland

 

Komiti Whakahaere ā-Ture /

Regulatory Committee

 

OPEN AGENDA

 

 

 

 

MEMBERSHIP

 

Chairperson

Cr Linda Cooper, JP

 

Deputy Chairperson

Deputy Mayor Cr Bill Cashmore

 

Members

Cr Josephine Bartley

 

 

Cr Fa’anana Efeso Collins

 

 

Cr Richard Hills

 

 

Cr Daniel Newman, JP

 

 

Cr Sharon Stewart, QSM

 

 

IMSB Chair David Taipari

 

 

Cr Wayne Walker

 

 

Cr John Watson

 

 

IMSB Member Glenn Wilcox

 

 

Cr Paul Young

 

 

 

 

Ex-officio

Mayor Hon Phil Goff, CNZM, JP

 

 

(Quorum 5 members)

 

 

 

Andrew Gray

Governance Advisor

 

10 June 2019

 

Contact Telephone: (09) 977 1735

Email: Andrew.gray@aucklandcouncil.govt.nz

Website: www.aucklandcouncil.govt.nz

 



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.

 

 

 


Regulatory Committee

13 June 2019

 

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                                                                                              10

8          Update on compliance work with taverns hosting pokie machines                      11

9          Summary of Regulatory Committee information memoranda and briefings - 13 June 2019 including the Forward Work Programme                                                        21

10        Objection to construction of stormwater pipe at 61 Godden Crescent, Mission Bay                                                                                                                                       51  

11        Consideration of Extraordinary Items 

 

 


1          Apologies

 

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

 

That the Regulatory Committee:

a)         confirm the ordinary minutes of its meeting, held on Thursday, 9 May 2019, 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.”


Regulatory Committee

13 June 2019

 

Update on compliance work with taverns hosting pokie machines

File No.: CP2019/07997

 

  

 

Te take mō te pūrongo

Purpose of the report

1.       To update the Committee on the work being done by alcohol licensing inspectors to ensure that taverns and restaurants hosting electronic gaming machines (pokies) are complying with the conditions of their alcohol licence.

2.       To address a resolution of the Community Development and Safety Committee:

“request that a report be presented to the appropriate committee regarding implications of recent decisions by the Department of Internal Affairs on Council’s sinking lid policy and including consideration of section 314 of the Gambling Act”

Whakarāpopototanga matua

Executive summary

Compliance by taverns and restaurants

3.       In April last year we reported to you that our inspectors were conducting or going to conduct investigations into 28 tavern premises that host electronic gaming machines (pokies) and that seemed to be principally in the business of providing gambling rather than operating as a tavern.  This report is to update you on the progress into those investigations.

4.       To date we have investigated or are currently investigating 28 tavern and restaurant premises applying for renewal of their alcohol On Licence.  Of those premises:

·        one which we opposed had its licence renewed for a shortened period to enable ongoing monitoring of its activities.  The premises has now changed hands and the new owners have applied for a new licence. 

·        two have had their applications for renewal declined by the District Licensing Committee (DLC) and we are waiting for a decision from the DLC for a third premises that had a hearing two weeks ago.

·        one surrendered their licence.

·        one withdrew their application for renewal and closed, and another is about to withdraw its application for renewal and will also close.

·        one is waiting to have its renewal application heard by the DLC because it is opposed by us while two premises have had their applications adjourned until September and December.

·        15 have been found to be compliant with their licence condition to operate as a tavern and have had their licences renewed

·        three are currently being reported on for a decision to be made as to what we will recommend to the DLC

There are a further eight premises coming up for renewal this year or early next year that will be investigated.


 

5.       As a result of our investigations premises are paying more attention to ensuring that they adhere to their principal business being that of a tavern rather than a “gambling shop”.  Although the gambling companies that run the gambling machines have kept very much in the background it was pleasing that one did come forward and met with us for advice on how to keep their premises compliant.

6.       During the investigations our inspectors have been subject to some threatening behaviour from both patrons and bar staff.  We were also met with refusals to provide information and had to obtain orders from the DLC requiring the information to be provided. 

7.       We will continue to oppose the licences of premises that appear to us to not be operating as licensed by the DLC.

Community Development Committee public input

8.       At its meeting in October last year the Community Development and Safety Committee received  public  input  from  the  group Community Action Against Alcohol Harm (CAAAH)A copy of their input is attached.  The subject of the presentation was their concern at the effect on the Council sinking lid pokie policy, of decisions by the Department of Internal Affairs (DIA) to extend a venue’s gambling licence even though the main activity of the venue had ended.

9.       The sinking lid policy only comes into effect when a venue loses or surrenders its pokie venue licence and then if no new pokie venue licence application has been received by the DIA within six months.  Once six months has passed without a pokie venue licence application being received a venue needs council consent to apply to the DIA for a pokie venue licence.  Under our current pokies policy, no consent can be given and the pokies lid sinks.

10.     The CAAAH highlighted a case last year in which a venue in Mangere had had its alcohol licence renewal declined and it was required to stop selling alcohol on 29 January 2018.  It had a gambling venue licence to host nine pokie machines.  That licence was required to be surrendered by the trust that owned the machines (the Lion Foundation) no later than four weeks after the business stopped trading and the pokies stopped operating, i.e. by 26 February 2018. 

11.     However, the Foundation applied to the DIA for the licence to be allowed to be inactive beyond 26 February 2018, until 6 April 2018, on the basis that the venue operator was applying for a new alcohol licence and if successful would operate the pokies again.  The application to the DIA was granted.

12.     The application for a new alcohol licence was opposed by the inspector and the community, and a hearing was set for 25 June 2018.   On 26 March 2018 the Lion Foundation again applied for the pokie venue licence to be allowed to be inactive until 6 July 2018.  You can see from the timeline at page 4 of Attachment A the further developments with the DIA.

13.     The upshot was that the venue was declined a new alcohol licence but, in the meantime, the DIA took so long to make a final decision that it didn’t cancel the pokie venue licence until 20 August 2018.  The CAAAH were concerned that this meant that the six month period in which to lodge an application for a new pokie venue licence would now end on 20 February 2019 when it could have ended on 26 August 2018. 

14.     In any event no application for a new pokie venue licence was made to the Department of Internal Affairs and the venue is now a shop selling ‘nick knacks’ and cannot now be granted consent by the Council for pokie machines to operate at the venue. 

15.     It should be noted that the DIA in their letter of 20 August 2018 cancelling the pokie venue licence have stated that the reasons for allowing the initial extensions of the licence, i.e. the loss of the alcohol licence and a subsequent application for a new one, were not valid reasons under their policy and should not have been considered.  

16.     This clarifies that in any future scenario like the Graces Place decisions, no extension of a pokie venue licence will be permitted on the ground that a venue has lost its alcohol licence and is appealing that decision or applying for a new alcohol licence. 

17.     The Community Development and Safety Committee also asked that a report include consideration of Section 314 of the Gambling Act 2003.  This section permits the making of regulations relating to several factors affecting gaming machines.  The most relevant to this report is the making of regulations to limit the number of gaming machines within New Zealand or any area within New Zealand.  To date no such regulations have been made. 

18.     However, it could be said that the requirement in the Gambling Act for a territorial authority to adopt a policy on class 4 (pokie) venues gives territorial authorities an ability to limit the number of gaming machines in a similar manner to regulations made under section 314 of the Gambling Act 2003.

19.     If the Committee wished to advance with the Minister of Internal Affairs the making of regulations to limit the number of pokie machines within Tamaki Makaurau a body of work would have to be commenced to support any such submissions.

 

 

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a)      note the update on the actions being taken by alcohol licensing inspectors to ensure that taverns and restaurants hosting gaming machines (pokies) are complying with the conditions of their alcohol licence.

b)      note that the recent decisions by the Department of Internal Affairs that caused concern to the community have not adversely impacted on the Council’s sinking lid pokie policy. 

c)      note that there are currently no regulations limiting the number of gaming machines within New Zealand or any area within New Zealand.

 

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Public Input to Community Development Committee

15

      

Ngā kaihaina

Signatories

Author

Rob  Abbott  - Manager Alcohol Licensing  

Authoriser

Craig Hobbs - Director Regulatory Services

 


Regulatory Committee

13 June 2019

 


 


 


 


 


 


Regulatory Committee

13 June 2019

 

Summary of Regulatory Committee information memoranda and briefings - 13 June 2019 including the Forward Work Programme

File No.: CP2019/08623

 

  

 

Te take mō te pūrongo

Purpose of the report

1.       To provide an update of all current resource consent appeals lodged with the Environment

Court (Attachment A and Attachment B).

2.       To note the progress on the forward work programme (Attachment D).

Whakarāpopototanga matua

Executive summary

3.       This is a regular information-only report which aims to provide greater visibility of information circulated to Regulatory Committee members via memoranda/briefings or other means, where no decisions are required.

4.       The Appeals Status Report and Region-wide Appeal Register are appended at Attachment A and Attachment B.

5.       The forward work programme is appended for members information as Attachment D.

6.       The following information has been circulated to members:

Date

Subject

7/6/19

Letter to Minister of Local Government re Request for Amendments to Alcohol Ban Provisions in the Local Government Act 2002

 

7.       This document can be found on the Auckland Council website at the following link:

http://infocouncil.aucklandcouncil.govt.nz/

·    at the top left of the page, select meeting/Te hui “Regulatory Committee” from the drop-down and click ‘view’;

·    under ‘Attachments’, select either HTML or PDF version of the document entitled ‘Extra Attachments’

8.       Note that, unlike an agenda decision report, staff will not be present to answer questions about the 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 Regulatory Committee Summary of Information Items for 13 June 2019

b)      note the progress on the forward work programme appended at Attachment D of the agenda report.

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Appeals Status Report for 13 June 2019

23

b

Region-wide appeal register 13 June 2019

25

c

Letter to Minister of Local Government re Request for Amendments to Alcohol Ban Provisions in the Local Government Act 2002

39

d

Forward Work Programme

45

     

Ngā kaihaina

Signatories

Author

Andrew Gray - Governance Advisor

Authoriser

Craig Hobbs - Director Regulatory 7Services

 


Regulatory Committee

13 June 2019

 

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13 June 2019

 

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Regulatory Committee

13 June 2019

 

 

REGULATORY COMMITTEE FORWARD WORK PROGRAMME 2018 / 2019

This committee is responsible for regulatory hearings, appointing independent commissioners and for the development of regulatory policy and bylaws.

 

Area of work

Reason for work

Regulatory Committee role

(decision or direction)

Budget/ Funding

Expected timeframes

Highlight financial year quarter and state month if known

FY18/19

FY19/20

Apr – Jun

11 April

9 May

13 June

Jul – Sep

11 July

8 Aug

12 Sept

Oct – Dec

 

Jan - Mar

Alcohol Licensing

Report on the revenue received and the costs incurred for the alcohol licensing process – required by regulation 19 of the Sale and Supply of Alcohol (Fees) Regulations 2013.

 

Note that the majority of alcohol licensing costs were recovered from the existing default licensing fees regime for the twelve months to July 2017. Confirm 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.

Within current baselines.

Q4

Q1

Q2

Q3

Animal Management

Report on Animal Management activities for the year ending June 2018 as required by s10a of the Dog Control Act 1996

 

Note that the Animal Management Annual Report is required under Section 10A of the Dog Control Act 1996 and staff will provide the 2017/18 report to the Secretary of Local Government

 

Progress to Date:

Report 4/10/18 2017/2018 Animal Management Annual Report prepared pursuant to s10A of the Dog Control Act 1996 minute REG/2018/70

 

Within current baselines.

Q4

Q1

Q2

Q3

Earthquake Prone, Dangerous & Insanitary Buildings Policy 2011-2016 Review

2011 - Auckland Council was required under s131 of the Building Act 2004 to adopt a policy on earthquake prone, dangerous and insanitary buildings

2018 – Due to the Building (Earthquake-Prone Buildings) Amendment Act 2016, Auckland Council’s management of earthquake-prone buildings now falls under the national policy and methodology set by MBIE. Our ongoing work programme for issuing statutory EPB notices, receiving seismic assessments, and identifying residual potential EPBs is being carried out on this basis.

Note that dangerous and insanitary buildings continue to have their own local policy that is now under the management of Regulatory Compliance.

Update the Committee on the progress made in implementing Auckland Council’s regulatory obligations with regard to earthquake-prone buildings within its jurisdiction.

 

Q4

Q1

Q2

Q3

Freedom camping

Explore the need for and options for regulating freedom camping in Auckland

 

Key milestones

Nov 2018 - Proposal

Late Nov 2018 – mid Feb 2019 - Public consultation

April 2019 - Public deliberations

May 2019 – Panel’s recommendation to Governing Body

Receive options report following the completion of the research and pilot. (July 2017)

If a regulatory response is required then the committee will:

·    Recommend statement of proposal to Governing Body. 

·    Establish the hearings panel for deliberations on submissions.

·    Recommend final draft of bylaw to governing body for adoption.

 

Progress to date:

An overview programme was presented on 10/08/17 Item 9   REG/2017/72  resolution REG/2017/72 SCP process

9/8/18  report to provide a presentation updating the development of a bylaw under the Freedom Camping Act 2011 – minute REG/2018/58

13/9/18  - report to seek direction on the content of the statement of proposal for the management of freedom camping– minute REG/2018/64

8/11/2018 - report To recommend that the Governing Body adopt the freedom camping in vehicles statement of proposal and draft bylaw for public engagement and appoint a panel to consider feedback, deliberate and make recommendations – minute REG/2018/77

Review is within current baselines.

 

Funding proposals will be required for any recommendations that require capital or operational upgrades.

Q4

Q1

Q2

Q3

Dog management Bylaw and Policy on Dogs.

Legislative requirement to review the bylaw and policy after five years.

Receive report following the completion of the bylaw review. (November 2017)

Recommend statement of proposal to Governing Body.

Establish the hearings panel for deliberations on submissions.

Recommend final draft of bylaw to governing body for adoption.

 

 

 

 

 

Progress to date:

Workshop held April 2018 – to seek informal guidance on a few potentially contentious issues related to dog management.

14/6/18 - A report to endorse the findings of the Auckland Council Policy on Dogs 2012 and Dog Management Bylaw 2012 statutory review and approve a report back on options that respond to the findings - minute REG/2018/44

8/11/18 - A report To seek approval for amendments to the Auckland Council Policy on Dogs 2012 and the Dog Management Bylaw 2012. – minute REG/2018/79

14/2/19 – a report to recommend to the Governing Body that it adopt the Auckland Councils New Policy on Dogs and dog Management Bylaw 2019 Statement of proposal – minute REG/2019/6

# public notification is required for bylaw reviews even if no change to the bylaw is recommended.

 

Q4

Q1

Q2

Q3

Solid Waste Bylaw review

Legislative requirement to review the bylaw and policy after five years.

 

Key milestones:

Sept-Dec 2018 - research and engagement

Feb 2019 – findings report to Regulatory Committee

March 2019 – options report to Regulatory Committee

April 2019 – proposed bylaw

June 2019 – public feedback

July 2019 – panel deliberation

By August 2019 – Governing Body to adopt bylaw

 

 

 

 

 

Receive report following the completion of the bylaw review.

Recommend statement of proposal to Governing Body.

Establish the hearings panel for deliberations on submissions.

Recommend final draft of bylaw to governing body for adoption.

 

Progress to date:

14/2/19 -  a report to endorse the findings of the Solid Waste Bylaw 2012 review and request a report on options that responds to the findings.  Minute REG/2019/7

14/3/19 – a report to request a statement of proposal that makes a new bylaw.  Minute REG/2019/12

14/3/19 – a report to determine outcome of review and decide whether to make changes.  Minutes REG/2019/12

 

Q4

Q1

Q2

Q3

Alcohol Control Bylaw review

Legislative requirement to review the bylaw and policy after five years.

Next steps

·    Staff to prepare a statement of proposal

·    Report back in early 2020

Receive report following the completion of the bylaw review.

Recommend statement of proposal to Governing Body.

Establish the hearings panel for deliberations on submissions.

Recommend final draft of bylaw to governing body for adoption.

 

Progress to date:

9/5/19 report to provide an update on the Alcohol Control Bylaw review 2019 options for any changes  - minute REG/2018/18

 

Q4

Q1

Q2

Q3

Alcohol Fees Bylaw 2019

Development of an alcohol fees bylaw

Recommendation around development of bylaw.

If accepted

Receive report following the completion of the bylaw review.

Recommend statement of proposal to Governing Body.

Establish the hearings panel for deliberations on submissions.

Recommend final draft of bylaw to governing body for adoption.

 

Progress to Date:

Report 11/4/19 on development and decision to delay REG/2019/22

 

 

 

 

 

 

Cemeteries and Crematoria Bylaw 2014 Review

Legislative requirement to review the bylaw and policy after five years.

Receive report following the completion of the bylaw review.

Recommend statement of proposal to Governing Body.

Establish the hearings panel for deliberations on submissions.

Recommend final draft of bylaw to governing body for adoption.

 

Progress to Date:

Report 11/4/19 and request and options report REG/2019/20

Options report 9/5/19 and decision on option REG/2019/27

 

 

 

 

 

 

 

 

 

Boarding Houses Inspection

Update on the Auckland proactive boarding houses inspections programme.

 

Increase inspections from one to a minimum of three per year.

Receive updates

 

Progress to date:

8/2/18  report to provide an update on the proactive boarding houses inspection programme -  minute REG/2018/5

An update on the initiative was provided at the 15/6/18 meeting item 12   resolution REG/2017/51  item 12 update on boarding house inspections item 11

 

Q4

Q1

Q2

Q3

Resource Consents Appeal Update

To provide oversight of the appeals received to resource consent decisions.

Information purposes

Monthly updates - Memo

N/A

Q4

Q1

Q2

Q3

The Regulatory Committee Policy

Reporting on and monitoring of commissioner appointments

Information purposes

Memo quarterly

 

Q4

Q1

Q2

Q3

The Regulatory Committee Policy

Annual review of commissioner pool

Decision: review RMA commissioner pool

Memo Quarterly

 

 

Q4

Q1

Q2

Q3

 

 

The Regulatory Services Directorate

Report on:

·    progress implementing the Food Act 2014

·    insights into the performance, opportunities and risk of the Resources Consents Dept

·    progress implementing the Regulatory Compliance programme

·    update of Building control activity

For information only:

6 monthly update

 

Q4

Q1

Q2

Q3

 



Regulatory Committee

13 June 2019

 

Objection to construction of stormwater pipe at 61 Godden Crescent, Mission Bay

File No.: CP2019/01692

 

  

 

Te take mō te pūrongo

Purpose of the report

1.       To hear and determine an objection to proposed stormwater works at 61 Godden Crescent Mission Bay pursuant to section 181 of the Local Government Act 2002.

Whakarāpopototanga matua

Executive summary

2.       A developer - Location (Kepa Road) Limited - is undertaking construction of 42 apartments at 250 Kepa Road in Mission Bay. As part of receiving engineering plan approval from the Auckland Council, the developer is required to connect to the existing public stormwater network which runs under the berm of Godden Crescent. 

3.       In order to make this connection, a stormwater pipe needs to be run through private property owned by a third party located at 61 Godden Crescent (see Attachment A).

4.       Auckland Council through its Healthy Waters department manages Auckland’s public stormwater infrastructure and improvements to waterways. Healthy Waters has analysed two options for alignment of the pipe (see map in Attachment A) and determined that:

·     the proposed connection to the public system is the closest and most practicable option

·     the design and location of the preferred option minimises the number of private properties it needs to cross

·     the works have been designed with sufficient capacity to serve the development as well as stormwater flows from the uphill catchment if additional properties are built

·     the proposed work has been designed to Auckland Council standards and will result in a public benefit by capturing stormwater run-off generated from existing uphill properties

·     61 Godden Street has the available clearance and space for installation of the pipe.

5.       Because the installation of the pipe will be carried out through directional drilling, it will result in minimal disruption to the landowner’s property and does not require property access.  Access would only be required if obstructions are encountered during drilling and an inspection pit is required. This is unlikely to occur because it is a short distance.

6.       Completing the works, including connection to the main and manhole installation (both occurring outside the property boundary) should take approximately 14 days.

7.       Despite numerous attempts over a period of seven months, the developer and the owner have been unable to reach an agreement to allow the developer to carry out the works.

8.       For all these reasons, staff recommend that the Regulatory Committee hear the landowner’s objection and then endorse the proposed stormwater works pursuant to section 181 of the Local Government Act 2002.


 

Ngā tūtohunga

Recommendations

That the Regulatory Committee:

a)      hear and determine the objections by the owner of 61 Godden Crescent according to clause 1(e) of Schedule 12 of the Local Government Act 2002, and

b)      determine to proceed with construction of the pipeline at 61 Godden Crescent (as shown in Attachment A of the agenda report) according to clause 1(e) of Schedule 12 of the Local Government Act 2002.

 

Horopaki

Context

9.       A developer - Location (Kepa Road) Limited - has been granted resource consent by Auckland Council to build 42 apartments at 250 Kepa Road.

10.     To complete this development, and comply with the council’s engineering approval plan, the developer must connect their apartment block to the existing stormwater network located within Godden Crescent. 

11.     Installing stormwater infrastructure for this apartment block will also provide infrastructure for surrounding properties to connect to the stormwater network if they are developed in future.

Tātaritanga me ngā tohutohu

Analysis and advice

Analysis of alignments for the project

12.     To identify the best option to connect this development to the public stormwater system, two alternative alignments for the connecting pipe were considered (see map in Attachment A).

13.     These were:

·     Option one: Install a public stormwater pipe from the corner of 250 Kepa Road down the boundary of 61 Godden Crescent to connect into the existing stormwater network.

·     Option two: Install a public stormwater pipe passing through the back of properties to the west of the development site to 242B Kepa Road and down the western boundary of 55 and 55A Godden Crescent before connecting to the existing stormwater network in Godden Crescent.

14.     The two options were analysed against relevant criteria, as shown below in Table 1. Criteria were weighted for significance and included:

·    the number of property owners who would be impacted

·    the level of disruption property owners would experience from works,

·    interference with existing services in the area, such as wastewater pipes

·    directness of the connection to the existing stormwater network.


 

Table 1. Analysis of alignment options against various criteria

 

Option 1

Option 2

Significance

Affected property owners

1

6

High

Interference with existing services

Minor

Major

High

Disruption to property owners

Minor

Major

High

Cost

$$

$$$

Medium

Route to existing stormwater network

Most direct

Least direct

Medium

15.     The status quo (i.e. not providing a connection from the apartment block to the public stormwater system) was not analysed as this would be in breach of the council’s own requirements for new developments.

16.     As Table 1 shows, option two: the alternative western alignment scored poorly against the criteria and was discarded, as it:

·    required passing under a significant amount of large trees

·    created interference with the existing wastewater line

·    caused disruption to multiple property owners (six houses as opposed to one) and involved building in close proximity to the foundations of 55A Godden Crescent.

17.     Option two was also more expensive, although this was considered less significant as the costs will be borne by the developer rather than the council. 

Recommended option: Direct alignment to 61 Godden Crescent

18.     Option one scored well against the criteria and was preferred by staff because:

·    the connection to the existing public network is the closest and most practicable route.

·    the design and location of the proposed stormwater line minimises the number of third-party properties affected (only one – 61 Godden Crescent)

·    the construction methodology of directionally drilling the stormwater line down the boundary of 61 Godden Crescent does not require property access and will result in minimal disruption. The route is mainly located under the driveway of the property. Where it passes next to the house it has the required clearance from the foundations.

·    the work has been designed in accordance with Auckland Council standards and its installation will enable development to take place in surrounding areas

Negotiations with the landowner

19.     Negotiations with the owner of 61 Godden Crescent have been ongoing since September 2018. A letter was sent to the owner on 29 November 2018 asking the owner to give permission for the works to take place within their property. The letter described the works and how it would affect the property owner.

20.     Auckland Council’s consultant, Thomas Consultants, who carries out the negotiations on behalf of Auckland Council, then attempted to reach an agreement between the developer and the third-party property owner. After various attempts, they determined that an agreement could not be reached.

 

21.     The Council’s lawyers also made contact with the owner’s solicitors, as they had mentioned they were open to a meeting to potentially discuss an agreement. After multiple attempts to advance discussions or schedule a meeting staff determined that reasonable progress was not being made and a meeting was unlikely to occur.       

Reduction in property values and compensation

22.     Injurious Affection: The process that the Council is carrying out under section 181(3)(b) / Schedule 12 of the Local Government Act does not constitute the acquisition (or "taking") of land.  However, compensation for injurious affection can be claimed under the Public Works Act (1981) and this process is pursued independently of the Local Government Act process. Injurious affection has a specific meaning with respect to reducing property value and must be proven.

23.     As this stage, any claim for injurious affection will be based on the property’s development potential and value being reduced. The proposed works will create minimal disruption to the property owner on the basis that access to the property is not required, the works are straightforward and involve minimal risk and will be completed in a period of no longer than fourteen days.

24.     Access would only be required if obstructions are encountered during drilling and an inspection pit is required. This is unlikely to occur because it is a short distance and drilling will be undertaken in a straight-line. In addition, the contractors will be aware of the ground conditions and materials at all times during the works.

25.     Property owners can make a claim for injurious affection under the Public Works Act even if their objection to the project is not upheld by the Regulatory Committee in its determinations under the Local Government Act.

Costs associated with the project

26.     All costs associated with the works are to be paid for by the developer. This includes the council’s time and costs (including that of its contractors) to facilitate an agreement with the landowner and to carry out the works pursuant to section 181 of the Local Government Act.

27.     The objectors have requested the payment of costs relating to participating in this Local Government Act process.  The council does not intend to pay for such costs.  The council has endeavoured to engage with, and assist, the objector, including making the council’s specialists available to discuss matters with the objectors. 

28.     If an objection is not sustained, objectors may appeal to the District Court. If they are successful the Court may make a costs award in favour of the winning party (that is against the council).

29.     In cases where there is injurious affection payable then there may be some justification for covering a claimant's reasonable costs. If not able to be agreed between the parties, this will become a matter for the Land Valuation Tribunal.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

30.     Watercare has been consulted and has approved the engineering plan approval for the development. The proposed stormwater line crosses under a wastewater pipe at the property boundary and above a wastewater pipe in the berm of Godden Crescent. The appropriate clearances from both pipes have been accepted by Watercare.   

Ngā whakaaweawe ā-rohe me ngā tirohanga a te poari ā-rohe

Local impacts and local board views

31.     The Ōrākei Local Board has not been consulted on the decisions recommended in this report since the stormwater pipe will be delivered on private land.

32.     This project has not been publicly notified as it is unlikely to have an adverse effect on the environment or people.

33.     The decisions recommended in this report will have a positive effect on the surrounding neighbours, as installing this stormwater pipe will enable them to develop their land. 

Tauākī whakaaweawe Māori

Māori impact statement

34.     The developer of the apartment block did not consult with mana whenua due to the small scale of the project, which was not expected to be of significance to Māori.

35.     The decisions recommended in this report will lead to a well-functioning stormwater management system, reducing the impact of the development on water quality. This is a desired outcome for mana whenua in their role as kaitiaki of Auckland’s waterways.

Ngā ritenga ā-pūtea

Financial implications

36.     If the committee endorses the construction of the pipe, all costs associated with the works shall be paid for by the developer. This includes all costs the Council has incurred in facilitating a voluntary agreement between the developer and the owners of 61 Godden Crescent and through appointing engineers to advise on the viability of the works.

37.     There is a possibility that if the committee endorses construction of the stormwater pipe, the property owner could appeal this decision to the District Court.

38.     Objectors can pursue a claim of injurious affection independently of the section 181 process, using the Public Works Act. The proposed pipeline does not involve the taking of any land, nor will it cause any damage to the objector’s property, so a claim for injurious affection on these grounds is unlikely.

39.     The objector has indicated that the pipeline will impact upon further development or redevelopment of their property and therefore reduce its value. Council staff have yet to receive any evidence of this, but it could potentially be arguable. If an injurious affection figure cannot be agreed with the objector, they are able to make a claim to the Land Valuation Tribunal.

40.     If the committee does not endorse installation of the pipe and the developer has to find a less optimal solution, this could create the following cost implications for Auckland Council:

·   costs associated with a poorly functioning stormwater management system including channel overflows from illegal discharges;

·   monitoring and managing parallel stormwater systems created by property owners who are unable to connect to Auckland Council’s stormwater system.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

41.     A systematic assessment of risks arising from the project has been undertaken by staff. Key risks relating to the recommended decision to proceed with the pipeline and the proposed mitigations are shown in Table 2 below.

 

 


 

Table 2. Risks and mitigations arising from determination of the objection

Risk

Likelihood and consequence

Mitigation

Legal risk – Objector argues that this is in fact a private pipe and Auckland Council ought to use section 460 of the Local Government Act 1974 instead of section 181 Local Government Act 2002.

Likelihood: Low

Consequence: Medium

Once constructed the pipeline will be vested to the Council and form part of the public stormwater system which the Council is responsible for ensuring access to and maintaining. It is being built to Council’s standards for public stormwater infrastructure and will serve a wider catchment as the area develops further.  

Financial risk – If the landowner appeals the Regulatory Committee’s decision, the Council may become liable for the cost of defending a District Court case. The landowner could also seek injurious affection through the Land Valuation Tribunal should it not be agreed.

Likelihood: Low

Consequence: Medium

In these circumstances, it seems unlikely that the landowner would appeal, as their sole issue appears to be the loss of development potential, which is more an injurious affection issue. If a District Court appeal is brought, Council can be confident of defeating it. If there is demonstrable injurious affection, Council will be liable for it to the extent that it is warranted. Council will ensure this is only what is evidenced and reasonable.  

Infrastructure risk - Low quality assets being vested to the Council

Likelihood: Low

Consequence: Medium

This risk will only arise if the committee determines that the pipe should not be constructed. The recommended decision mitigates this risk.

Ngā koringa ā-muri

Next steps

42.     If the objection is not upheld and construction of the pipe is endorsed then Council staff will use their powers under the Local Government Act to deliver the stormwater works. 

43.     The objector has up to 30 days to lodge a further appeal to the District Court. If this occurs then the council’s legal team will support this process.

44.     Council staff will meet with the objector to discuss their injurious affection concerns. If this cannot be agreed (or is disputed in its entirety by Council), the objector can make a claim in the Land Valuation Tribunal. 


 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Map of options to connect the Kepa Road development to the public stormwater network

59

     

Ngā kaihaina

Signatories

Authors

Leigh Steckler - Senior Healthy Waters Specialist

Alex Cumming - Senior Solicitor

Authorisers

Craig McIlroy - General Manager Healthy Waters

Barry Potter - Director Infrastructure and Environmental Services

Craig Hobbs - Director Regulatory Services

 


Regulatory Committee

13 June 2019