Agenda of Regulatory Committee

Regulatory Committee

11 July 2019

Objection to the Construction of a Public Stormwater line through 133 &135 Coronation Road, Hillcrest and 7 Nicholson Place, Hillcrest

File No.: CP2019/11606

Te take mō te pūrongo

Purpose of the report

1. To hear and determine an objection to the Construction of a Public Stormwater line through 133 &135 Coronation Road, Hillcrest and 7 Nicholson Place, Hillcrest129 & 131 Coronation Road Hillcrest.

Whakarāpopototanga matua

Executive summary

2. Stormwater from the existing single dwelling located on 129 & 131 Coronation Road discharges to ground and does not comply with Council’s Stormwater Code of Practice as it does not connect to public reticulation available within the immediate vicinity.

3. The owner of 129 – 131 Coronation Road Hillcrest, John McFetridge and Suzanne Sanders, propose to subdivide and develop the site located at 129 to 131 Coronation Road Hillcrest. The property does not currently have a discharge connection to the council public stormwater system. J McFetridge & S Sanders propose a connecting extension from an existing public Council manhole located within 7 Nicholson Place (Lot 16 DP51770) via a new line across 133 & 135 Coronation Road and 7 Nicholson Place to serve their property.

4. MSC Consulting Group Ltd., consultants for J McFetridge & S Sanders, have considered a number of options to service the site. The proposal to connect from the existing stormwater manhole within 7 Nicholson Place is considered to be the only practical route by both the owner’s and Council’s engineers.

5. J McFetridge & S Sanders have obtained approval from M & E Davies owners of 133 Coronation Road (Lot 4 DP50501) and ER & LLD Johnson owners of 135 Coronation Road (Lot 135 DP50501).

6. J McFetridge & S Sanders have not been able to obtain consents from Jingsong (Teresa) Tang and Chun Jin the owners of 7 Nicholson Place. John & Suzanne McFetridge have requested council to exercise its power under section 460 of the Local Government Act 1974 (“the Act”) to enable the work to be carried out. Council has since served Notice under the Act on these neighbours.

7. Craig Horwood of MSC Consulting has extensively consulted with Jingsong (Teresa) Tang and Chun Jin the owners of 7 Nicholson Place without gaining approval.

8. Council has met and consulted with Jingsong (Teresa)Tang and Chun Jin and explained the engineering benefits of the proposed reticulation without facilitating approval.

9. Dave Serjeant an independent Commissioner has also been engaged to mediate with Jingsong (Teresa) Tang and Chun Jin without gaining approval. The mediators report is included with this report. (Attachment D)

10. Section 460 of the Act provides a right to be heard by a committee of Council. The Committee must hear the objection and decide whether or not to endorse the works.

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a) hear and determine the objections by the owners of 7 Nicholson Place Hillcrest, pursuant to section 460 of the Local Government Act 1974; and

b) subject to the hearing of the objection, resolve under section 460(1) of the Local Government Act 1974 that the proposed stormwater connection route across 133 & 135 Coronation Road and 7 Nicholson Place to service 129 – 131 Coronation Road, is the only practical route as shown on MSC Consulting engineers drawings no. 38481 sheet C100 revision A.

Horopaki

Context

11. The owners of 129 – 131 Coronation Road Hillcrest are John McFetridge and Suzanne Sanders (“the Applicant”). The Applicant has applied under section 460 of the Act for the council to determine, that the proposed installation of a stormwater pipe from an existing Council manhole within 7 Nicholson Place across 133 and 135 Coronation Road is the only practical route and available connection to serve 129 – 131 Coronation Road Hillcrest.

12. A locational aerial of the relevant properties and plans of the precise route from the existing is shown in the MSC Consulting engineers drawings no. 38481 sheet C100 revision C, are contained in Attachment B.

13. The Applicant’s consultant MSC Consulting Group have undertaken a stormwater network analysis to confirm downstream capacity to receive the stormwater discharge from the proposed development as presented in Attachment C.

14. The Applicant lodged an Engineering Approval application (reference ENG60304410) on 18 July 2017 to undertake the work to install the wastewater line. This has since been approved on 14 August 2017 and provided as Attachment A. While approval was obtained from the property owners of 133 & 135 Coronation Road, no consent was obtained from the owners (Teresa) Jingsong Tang and Chun Jin the owners of 7 Nicholson Place.

15. The ‘Applicant’ and its consultants have consulted with the property’s owners (Teresa) Jingsong Tang and Chun Jin in writing and by phone over a period of 18 months to date in order to obtain their consent to undertake the work. A copy of relevant pertinent communication demonstrates that both (Teresa) Jingsong Tang and Chun Jin have been fully informed of the extent of works and this is provided as Attachment E. The written communication has been sent to the address listed for the respective owners as well as email communication. The ‘Applicant’ has not been able to obtain consent.

16. The Council’s senior development engineer has also consulted with these landowners on numerous occasions over the past eighteen months and has not been able to facilitate approval. Attachment D also confirms the attempts by Mr Dave Serjeant, council’s independent facilitator engaged to seek a resolution. However, these attempts were also unsuccessful. Under report of 27 November 2018 the facilitator proposes that the matter be set down for a hearing.

17. The Council is satisfied that the owners (‘Applicant’) of 129 - 131 Coronation Road, have met its expectations of seeking all endeavors to obtain an agreement to install the stormwater line. Under letter of 28 February 2019 Council formally notified Jingsong (Teresa) Tang (7 Nicholson Place) of the intention to construct the stormwater line under section 460 of the Act. Attachment F contains this notice to the addresses recorded for these owners.

18. The approved stormwater reticulation provides for stormwater connections for 133 and 135 Coronation Road which is a significant improvement on the current situation as these sites currently discharge onto 7 Nicholson Place the property of (Teresa) Jingsong Tang and Chun Jin. Attachment B provides an overview outline of the proposed upgrade works.

19. Craig Horwood (MSC Consultant chartered professional engineer) has continued to communicate with (Teresa) Jingsong Tang and Chun Jin following notification of 28 February 2019 without gaining consent for these works as provided in Attachment E. Irrespective of this the matter needs to be determined by council as the written approvals have not been obtained. Notice of this hearing has been provided to (Teresa) Jingsong Tang and Chun Jin and they retain the right to be heard.

Tātaritanga me ngā tohutohu

Analysis and advice

20. Currently the sites at 129 to 131, 133 & 135 Coronation Road discharge to ground and 133 & 135 Coronation Road discharge onto 7 Nicholson Place via underground drain coils as per photos included with Attachment E.

21. The proposed stormwater discharge connection will provide for discharge connections from 133 & 135 Coronation Road and provide a significant improvement of stormwater management in the immediate vicinity of the surrounding sites.

22. The existing stormwater manhole within 7 Nicholson Place and the associated downstream reticulation has the capacity to receive discharge from the proposed development.

23. The existing manhole is to be upgraded to current standards thereby further improving the current conditions.

24. The Craig Horwood (Chartered Professional Engineer) of MSC Consultants “Stormwater Networks Capacity Analysis” report dated 27 September 2018 reference 38481C sets out the design consideration for the required stormwater reticulation Attachment C.

25. The only other possible option was to connect to public reticulation via a manhole within 137 Coronation Road. This was not considered given the existing manhole with 7 Nicholson Place was not to current engineering standards and the location of two manhole within close proximity is not sound practice.

26. MSC Consulting and council’s engineer therefore consider that the connection to the manhole within 7 Nicholson Place to be the only practical route. A methodology has been presented as the least intrusive for the stormwater connection

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

27. Within the framework of the Regulatory Committee’s Terms of Reference from the Governing Body, the Regulatory Committee has the responsibility for “hearing and determining applications for private drainage works on private land under the Local Government Act 1974. This delegation cannot be sub-delegated”. Copy of Section 460 of the 1974 Act is provided as Attachment F.

28. At the hearing, both the applicant and the objectors can present their evidence in support of their positions. After hearing all the evidence and the relevant information, the Regulatory Committee then has to make a decision. There is no right of appeal of the decision of the Regulatory Committee.

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

Local impacts and local board views

29. The Local Board is not advised of service connection requests under the Act. Further, the determination of this objection requires no consultation beyond the owners Chun Jin and (Teresa) Jingsong Tang of 7 Nicholson Place.

Tauākī whakaaweawe Māori

Māori impact statement

30. Under section 460 of the Act, Iwi are not considered a relevant affected party unless they are land owners through which a proposed drain is to be aligned. Council staff are not aware of any matters pertinent to the site that may be of interest to Maori. There are no sites or places of significance to Mana Whenua recorded in the Unitary plan for the site, along the route or nearby.

Ngā ritenga ā-pūtea

Financial implications

31. All costs for this process and hearing are to be met by the owners of 129 – 131 Coronation Road Hillcrest.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

32. The proposed reticulation will significantly improve the upstream stormwater management and impact on downstream properties as reported by the objecting party

Ngā koringa ā-muri

Next steps

33. The installation of the public stormwater reticulation will be undertaken by Council upon the Hearing approval of the proposed works.

Ngā tāpirihanga

Attachments

No.	Title	Page
a ⇩	Engineering Approval ENG60304410 dated 14 August 2017	15
b ⇩	Outline of Proposed Stormwater Reticulation Works (MSC Consulting “Proposed Drainage Layout” drawing 38481 revision C; Proposed Stormwater Reticulation & Manhole Upgrade; Existing Stormwater Manhole; Council GIS Screen View of Site)	29
c ⇩	MSC Consulting “Stormwater Network Capacity Analysis report dated 27 September 2018	35
d ⇩	Mediation Report by David Frederick Serjeant	55
e ⇩	Pertinent communication records	61
f ⇩	Hearing Notification 28 February 2019	103

Ngā kaihaina

Signatories

Author	Andrew Gray - Governance Advisor
Authoriser	Craig Hobbs – Director Regulatory Services

Regulatory Committee

11 July 2019

Objection to installation of a stormwater pipe at 119, 119A and 119B New Windsor Road, New Windsor

File No.: CP2019/12023

Te take mō te pūrongo

Purpose of the report

1. To hear and determine an objection to proposed stormwater works at 119, 119A and 119B New Windsor Road, New Windsor, pursuant to section 181 of the Local Government Act 2002.

Whakarāpopototanga matua

Executive summary

1. A developer - Rising Sun Investments Ltd - is constructing three new lots at 121 New Windsor Terrace. These must be connected to the existing public stormwater network.

2. To make this connection, a stormwater pipe needs to be run through the driveway of three private properties – 119, 119A and 119B New Windsor Road (see Figure 1 in Attachment A). This will connect to the existing public stormwater line located within the driveway of 119 New Windsor Road and form part of the public stormwater network managed by the council.

3. To progress these works, Auckland Council has served section 181 notices to the owners of 119, 119A and 119B New Windsor Road. The owner of 119A New Windsor Road has formally objected to the proposed stormwater pipe on behalf of themselves, 119 and 119B New Windsor Road (see Attachment B).

4. Healthy Waters has short-listed three options for installing this pipe as they were the most practicable alignments (see Figure 3 in Attachment A). The options analysis determined that:

· the pipe route through the driveways of 119, 119A and 119B is the most logical and direct to reach the connection point

· the work is located within the properties’ driveways and will not affect any structures

· the construction methodology of directionally drilling down the boundary of 119 New Windsor Road does not require property access and will result in minimal disruption

· an alternative option to connect to the south west line within New Windsor Road would avoid the objectors’ properties but is not feasible nor practical due to the site’s topography. This would require pumping water uphill in contravention of Auckland Council’s Stormwater Code of Practice.

· another option to run the pipe along the southern boundary of the property was also discarded as this would interfere with the wastewater network and potentially impact the foundations of neighbouring properties

· the work has been designed in accordance with Auckland Council standards and its installation will result in a public benefit to the wider stormwater network.

5. Completing the works should take approximately seven days and create minimal disruption.

6. The developer has made various attempts to negotiate access with the landowner since April 2018 and has been unable to reach an agreement (see Attachment C). The landowner has objected on the grounds that the drilling could cause the driveway to collapse due to the alleged unstable nature of the soil. Engineers engaged by the council dispute this assertion and confirm the works will be delivered in a manner that eliminates the risk of land collapse.

7. For these reasons, staff recommend that the Regulatory Committee hear the landowner’s objection and then endorse the proposed stormwater works.

Ngā tūtohunga

Recommendations

That the Regulatory Committee:

a) hear and determine the objections by the owners of 119, 119A and 119B New Windsor Road 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 119, 119A and 119B New Windsor Road (as shown in Attachment A to the agenda report) according to clause 1(e) of Schedule 12 of the Local Government Act 2002.

Horopaki

Context

8. A developer – Rising Sun Investments Ltd - has been granted resource consent by Auckland Council to build three new lots at 121 New Windsor Road.

9. To complete this development, and comply with the council’s engineering approval plan, the developer must connect their subdivision to the existing stormwater network located within 119 New Windsor Road.

10. The new pipe will need to run along the length of the driveway shared by the owners of 119, 119A and 119B New Windsor Road in order to make this connection.

11. Installing stormwater infrastructure for this subdivision 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. Auckland Council through its Healthy Waters department manages Auckland’s public stormwater infrastructure and improvements to waterways.

13. To identify the best option to connect this development to the public stormwater system, Healthy Waters has analysed three alternative alignments for the connecting pipe (see Figure 3 in Attachment A).

14. These options were:

· Option one: Install a public stormwater pipe from 121 New Windsor Road under the driveway and along the northern boundary of 119, 119A and 119B New Windsor Road to connect into the existing stormwater network (preferred option).

· Option two: Install a public stormwater pipe running uphill to connect to an existing line north east of 121 New Windsor Road.

· Option three: Install a public stormwater pipe from 121 New Windsor Road along the southern boundary of 119A and 119B New Windsor Road and discharge to the open channel in 119 New Windsor Road.

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

16. The three options were analysed against relevant criteria for additions to the public stormwater network, 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

· route of the connection to the existing stormwater network.

Table 1. Analysis of alignment options against various criteria

	Option 1	Option 2	Option 3	Significance
Affected property owners	3	0	3	Low
Interference with existing services	Minor	Minor	Medium	Medium
Disruption to property owners	Minor	No impact	Medium	Medium
Cost	$$	$$$	$$$$	Low
Route to existing stormwater network	Most direct	Not feasible	Less direct	Medium

Key

Most positive

Moderately positive

Moderately negative

Most negative

17. The cost was also considered but was of less significance, as it will be borne by the developer, rather than the council.

18. As Table 1 shows, although option two scored better in terms of disruption to property owners, it was discarded, as it is not feasible as an option due to the topography of the site - (see Figure 2 in Attachment A).

19. To connect to the existing stormwater line north of 121 New Windsor Road would only be achievable through pumping the stormwater uphill. Pumping in this manner is not supported by Auckland Council as to do so increases the risk of flooding, requires on-going maintenance and contravenes Auckland Council’s Stormwater Code of Practice.

20. Option three was discarded, as it:

· interferes with the existing wastewater line in the boundary of 119A

· would affect the foundations of 119A and 119B as the pipe would be in the zone of influence of these dwellings

· would require an outfall to the open channel. This would create significant extra cost and would require additional consent.

Recommended option: Direct alignment to 119 New Windsor Road

21. Option 1 was identified as the best option because of the following:

· the pipe route is the most logical and direct to reach the connection point;

· the location of the work is located within the driveways of the properties therefore will not affect any structures

· the construction methodology of directionally drilling the stormwater line down the boundary of 119 New Windsor will require property access but will result in minimal disruption as opposed to an open trenching methodology of construction.

· the pipe network has been designed to cater for the 10% annual exceedance probability (the probability of a flood event occurring in any year) including allowance for climate change.

· the work has been designed in accordance with Auckland Council standards and its installation will result in a public benefit to the wider stormwater network of the development.

· it will allow the site to be developed which contributes to Auckland’s growth and need for housing.

Negotiations with the landowners

22. The developer first contacted the landowners in April 2018. Attachment C details the number of attempted meetings and correspondence sent by the developer to the owners of 119, 119A and 119B New Windsor Road to try to resolve the issue of access.

23. The owner of 119A New Windsor Road has been leading the negotiations for access on behalf of 119 and 119B and up until May 2019, he was the owner of both 119A and 119B New Windsor Road.

24. The new owner of 119B New Windsor Road has full knowledge of what is being proposed, having attended a meeting with the developer and Fraser Thomas Consultants about the project on 10 May 2019 (see more details below in paragraph 30).

25. By February 2019 it became clear to the developer that the owners were not interested in reaching an agreement. The developer then approached Auckland Council and requested that it provide facilitation services.

26. In March 2019 Fraser Thomas Consultants, who carries out negotiations for property access on behalf of Auckland Council, made various attempts to reach an agreement between the developer and the property owners.

27. By April 2019 staff decided that progress towards an agreement was not being made. On 17 April 2019 the Council issued a letter indicating that it would seek access to 119, 119A and 119B New Windsor Road pursuant to section 181 of the Local Government Act to build a stormwater pipe to connect to the public stormwater network.

28. That letter described the works and how it would affect the property owner. In accordance with the provisions of Schedule 12 of the Local Government Act the owners were given one calendar month to lodge an objection.

29. On 10 May 2019 a meeting was arranged between the developer and the owners of 119, 119A and 119B. Engineers from both parties attended along with the Council’s engineer and Fraser Thomas Consultants.

30. Despite in-depth discussions about the drilling process and measures to limit the slumping, the owners would not commit to approving a right of entry for construction. At the end of that meeting the Council requested that the owner formally object to the section 181 notice issued by the Council and detail their concerns in writing.

31. The time period for submitting an objection passed. Since the Council had received no response, staff began obtaining quotes to carry out the works. While staff were doing this, the owners formally submitted an objection on 11 June 2019 (see Attachment B).

Grounds for objection

32. The owners have lodged an objection to the works on the grounds that the drilling works would cause the driveway to collapse due the alleged unstable nature of the soil.

33. This claim is disputed by the developer on the grounds that:

· geotechnical testing of the soils immediately adjacent to the access way would be carried out

· the proposed stormwater line is outside the zone of influence for the new dwelling foundations

· any drilling operations would be required to use bentonite clay to encase the trench walls, prior to backcutting and pulling through the new pipe

· immediately upon completion of the placement of pipe within the directionally drilled hole a concrete slurry would be introduced to completely fill the gap between the pipe and the drill hole. The set concrete and the pipe would then form a solid ‘plug,’ thereby removing the risk of collapse of material.

· the proposed methodology has engineering approval, is standard practice for this type of drainage work and will be delivered appropriately by qualified professionals.

34. Auckland Council’s Healthy Waters engineers agree with the developer’s findings.

35. The owner was also concerned that the developer would not be around in the future were the driveway to collapse. This concern is mitigated by the fact that the drain will vest in the council as a public asset which the council is responsible to maintain and repair.

Costs associated with the project

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

37. 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).

38. In cases where there is injurious affection payable then Council will be responsible 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

39. Watercare has been consulted and has approved the engineering plan approval for the development as identified in option one only. There is an existing wastewater line running through the property so the connection does not require any third-party property agreement.

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

Local impacts and local board views

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

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

42. 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

43. The developer has not consulted with mana whenua with respect to the proposed stormwater connection. The developer is not seeking to discharge into the local stream network, but rather to connect to the public stormwater network. This means the impact on local waterways is likely to be minor.

44. As part of reviewing the resource consent for this development, the final receiving point for the stormwater flow will have been considered by the council’s regulatory body.

45. Ensuring that the developer has the ability to connect to the public stormwater network 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

46. 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 119, 119A and 119B New Windsor Road and appointing engineers to advise on the viability of the works.

47. If the committee endorses construction of the stormwater pipe, the objecting property owner could appeal this decision to the District Court.

48. The Council will be responsible for any proven injurious affection to private land pursuant to section 181(6) of the Local Government Act 2002, and the Public Works Act 1981. The proposed pipeline does not involve the taking of any land.

49. Any damage to the objector’s property will also be made good by the council as part of the reinstatement works, so a claim for injurious affection on these grounds is unlikely.

50. A claim of injurious affection where no land is taken can be pursued independently of the section 181 process, so it need not prevent a Council resolution. If an amount cannot be agreed between the parties, the landowner can make a claim to the Land Valuation Tribunal.

51. If the committee does not endorse installation of the pipe, 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 possible 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

52. Staff have undertaken a systematic assessment of risks arising from the project. Key risks relating to proceeding with the pipe and 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 of the Local Government Act 2002.	Likelihood: Low Consequence: Medium	Once constructed the pipeline will be vested in 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 (if evidenced) through the Land Valuation Tribunal should a figure not be agreed.	Likelihood: Low Consequence: Medium	It seems unlikely that the landowner would appeal where they have received assurances from qualified engineers that the works are technically sound, are in accordance with approval engineering plans and can be carried out in a manner which limits damage to their property.
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

53. 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.

54. The objector has up to 14 days to lodge a further appeal to the District Court. If this occurs then the council’s legal team will support this process.

Ngā tāpirihanga

Attachments

No.	Title	Page
a ⇩	Maps showing site, existing stormwater network and options for connection	117
b ⇩	Letter of objection to works from property owner	119
c ⇩	Record of correspondence with property owner	121

Ngā kaihaina

Signatories

Authors

Leigh Steckler – Senior Healthy Waters Specialist

Alex Cumming – Senior Solicitor

Authorisers

Craig Mcllroy – General Manager Healthy Waters

Craig Hobbs – Director Regulatory Services

Regulatory Committee

11 July 2019

Review of Food Safety Bylaw 2013, options and proposed future direction

File No.: CP2019/11277

Te take mō te pūrongo

Purpose of the report

1. To determine the outcome of the review of the Tāmaki Makaurau Whakapai Kai 2013, Auckland Council Food Safety Bylaw 2013 (Bylaw) and decide whether to propose to make a new bylaw.

Whakarāpopototanga matua

Executive summary

2. To enable the Regulatory Committee to complete the review of the Bylaw and decide whether to propose a new bylaw, staff have prepared a findings and options report.

3. Key findings are that the risk of foodborne illness from the sale of food still exists and a bylaw for the display of food grades can raise public awareness and incentivise businesses.

4. Staff recommend that option one (improve Bylaw) to require most food businesses to display a food grade is the most favourable option because:

· the current Bylaw and food grading scheme have support from the public, operators, health experts and environmental health officers as they can incentivise better food safety practices

· most food businesses that serve the public are currently required to display a food grade (6,711 or 70 per cent) even if they have a lower grade

· it raises public awareness of food safety standards and enables them to make an informed decision about where to purchase food

· has less compliance costs for business and council than option two and avoids the risk of inconsistency with the Food Act 2014

· can provide greater incentive for food businesses to improve food safety standards than options three and four, which have no requirement to display a food grade

· fills a regulatory gap in the absence of a national food grading scheme.

5. Option two (extend Bylaw) would require 81 per cent of all food businesses that serve food to the public to display a food grade. The key trade-off is it would increase compliance costs for food businesses not registered and verified by council and may be inconsistent with the Food Act. Further engagement with food businesses and the Ministry for Primary Industries would be required before adopting this option.

6. Staff recommend the committee makes the necessary determinations to commence the statutory process to make a new bylaw for option one (improve Bylaw). This includes recommending the Governing Body adopt the statement of proposal in Attachment A.

7. There may be public concern that the proposed new bylaw does not cover all Auckland food businesses. The statement of proposal will explain the reasons for the proposal so the public can provide informed feedback.

8. If the committee and Governing Body approve the recommendations, public consultation on the proposal is scheduled for late 2019 or early 2020. A panel will consider any feedback, deliberate and make recommendations to the Governing Body. A final decision on any new bylaw will be made by May 2020.

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a) determine that a bylaw is the most appropriate way to help protect public health from foodborne illness as detailed in Attachment B of the agenda report.

b) agree that option one (improve Bylaw) as detailed in Attachment C of the agenda report is the preferred option to help protect public health from foodborne illness.

c) recommend the Governing Body adopt the Food Safety Information Bylaw Statement of Proposal in Attachment A of the agenda report for public consultation and confirm that the proposed new bylaw:

i) is the most appropriate way to help protect public health from foodborne illness

ii) is the most appropriate form of bylaw

iii) does not give rise to any implications and is not inconsistent with the New Zealand Bill of Rights Act 1990

iv) is not inconsistent with the Food Act 2014.

d) recommend the Governing Body forward to local boards and the Independent Maori Statutory Board:

i) the statement of proposal in Attachment A of the agenda report for their views

ii) this agenda report and attachments for their information.

e) delegate authority to the chairperson of the relevant committee following the 2019 local body elections to:

i) appoint a chair and two panel members selected from the Governing Body and the Independent Māori Statutory Board to attend ‘Have Your Say’ events as appropriate and to deliberate and make recommendations to the Governing Body on public feedback to the proposal in (c)

ii) make replacement appointments to the panel if a panel member is unavailable.

f) delegate authority through the Chief Executive to a manager responsible for bylaws:

i) to appoint staff to receive public feedback at ‘Have Your Say’ events

ii) to make any amendments to the proposal in (c) to correct errors, omissions or to reflect decisions made by the Regulatory Committee or the Governing Body.

Horopaki

Context

The Food Safety Bylaw requires businesses to display a food grade

9. The Tāmaki Makaurau Whakapai Kai 2013, Auckland Council Food Safety Bylaw 2013 (Bylaw) was adopted by the Auckland Council Governing Body on 23 May 2013 (GB/2013/48).^{^[1]} A copy of the Bylaw is contained in Attachment A.

10. The Bylaw requires most food businesses that serve the public and are registered and verified by council, to display a food safety grade certificate (food grade).

11. The Bylaw complements the Food Act 2014 (Food Act) and is aligned to the Auckland Plan 2050 outcomes to improve health and wellbeing and ensure regulatory mechanisms support business.

Food grades are issued independently from the Bylaw

12. Food grades are issued as part of the council’s “Eatsafe Auckland” food grading scheme. Council’s Environmental Health Unit developed the scheme as an operational initiative that is independent of the Bylaw (separate) and can be changed at any time.

13. Food grades are based on the outcome of verification or inspection under the Food Act. The Environmental Health Unit undertake verification and inspection under the Food Act to ensure food businesses are selling safe food.

The Bylaw has changed significantly with the introduction of the Food Act

14. When the Bylaw was first adopted in 2013, the Food Hygiene Regulations 1974 (with some exemptions) required all food businesses in Auckland to register with council. The Bylaw required most businesses that served the public to display a food grade, and had clauses about unhygienic food premises, training, food stalls and mobile premises.

15. The introduction of the Food Act resulted in significant changes, in particular:

· food businesses are now required to comply with different risk-based measures

· food businesses can now register with council or the Ministry for Primary industries (MPI), depending on whether they are in Auckland or have stores in other regions

· third-party verifiers can now verify certain food businesses

· Bylaw clauses inconsistent with the Food Act were removed in February 2016 (GB/2016/8)

· transitional Bylaw clauses for food training, food stalls and mobile shops expired in February 2019.

16. Table 1 provides an overview of regulation of food businesses in Auckland.

17. Currently, the Food Act does not require the display of any information to the public (for example a food grade) that identifies the food business as selling safe food.

18. MPI is authorised to make regulations to introduce a national food safety grading scheme, which could include display requirements. Currently however, there is no scheme and it is uncertain whether such a scheme will be developed.

Table 1: Overview of regulation of food businesses that serve the public in Auckland

Display rule	Risk based measures	Sites registered by council (MPI)	Sites verified by Council (Third Party)	Percentage of food businesses
Not graded	Custom Food Control Plan and Template (s40) Food Control Plan (high risk) · food chains, supermarkets	0 (431) 0 (83)	0 (431) 0 (83)	4% 1%
Display required	Template (s39) Food Control Plan (high risk) · restaurants, cafés, takeaways	6712 (567)	6712 (567)	76%
Voluntary display only	National Programme 3 (medium risk) · dairies and service stations that reheat food	1434 (114)	1238 (310)	16%
	National Programme 2 (low risk) · early childhood centres, sale of chilled and frozen foods except packaged ice cream	106 (44)	60 (90)	2%
	National Programme 1 (lower risk) · coffee carts, packaged ice creams and shelf stable products	123 (3)	98 (28)	1%

Note: This table excludes sites that do not serve food to the public, for example manufacturers or producers.

The Bylaw expires in 2020 and must meet certain statutory requirements if still needed

19. The Bylaw will expire on 23 May 2020.^{^[2]} If a new bylaw is needed council must determine that the new bylaw meets legislative criteria and decide whether to adopt the new bylaw following public feedback.^{^[3]} Alternatively, council can propose to allow the current Bylaw to expire following public feedback.^{^[4]}

Staff prepared a findings and options report to determine whether a bylaw is still needed

20. To assist the committee in deciding whether the Bylaw is still needed:

· staff engaged with a range of stakeholders and carried out research in mid-2019 to prepare a findings report on the review of the Bylaw (Attachment B)

· staff then prepared an options report (Attachment C) that responds to the findings.

Tātaritanga me ngā tohutohu

Analysis and advice

Foodborne illness from food businesses is still an issue in Auckland

21. There is still a risk of foodborne illness from businesses selling food to the public:

· food or beverages can become contaminated due to improper food storage, preparation or cooking

· foodborne illnesses can cause gastroenteritis and, in some cases, long-term health problems such as kidney failure

· children, the elderly, pregnant women and people with immunodeficiencies such as diabetes are more vulnerable

· in 2017 there was at least an estimated 3,634 notifiable illness incidents (excluding norovirus) in Auckland (estimated 18,747 in New Zealand), most of which were foodborne

· there were 2,188 Auckland Council requests for service about food safety concerns with food businesses (1 July 2017 to 30 April 2019)

· the risk of foodborne illnesses is anticipated to increase with the public eating a wider range of foods and more raw fruits and vegetables, new food handling and preparation practices, and more on-line food businesses and markets.

The Food Act provides an effective and efficient means to ensure food safety

22. The Food Act established a national registration and verification framework to ensure food businesses sell safe food. This is supported by powers and penalties that are higher than those available under a Bylaw and includes infringement fines.

The Bylaw has wide support but its effectiveness is uncertain

23. The public display of a food grade is intended to raise public awareness and incentivise food businesses, and is widely supported by operators and the public. However, it is uncertain whether food grading reduces foodborne illness. Table 2 summarises the reasons for and against food grading contained in the findings report (Attachment B).

Table 2: Reasons for and against Bylaw and food grading

Reasons for Bylaw and food grading	Reasons against Bylaw and food grading
· compliance with Bylaw requirement to display a food grade by those businesses required to do so, is high · strong support for the Bylaw requirement and food grading: · local boards, environmental health officers, health experts and industry organisations in support · health experts and environmental health officers consider it can raise public awareness and incentivise improved food safety · 85 per cent of businesses support display of food grades	· recent international studies are undecided about whether food grading reduces foodborne illness and some suggest grades can be misleading for the public · most territorial authorities in New Zealand do not have a food grade bylaw
· fills a regulatory gap in the absence of a national grading scheme · 70 per cent of all high-risk food businesses that serve the public (cafes, restaurants, takeaways) currently required to display a food grade · other comparable international jurisdictions have food grading.	· some comparable international jurisdictions do not require a food grade to be displayed · there is public confusion because not all food businesses are required to display a food grade · statutory penalties are not used to enforce the Bylaw.

Reasons for Bylaw and food grading

Reasons against Bylaw and food grading

· compliance with Bylaw requirement to display a food grade by those businesses required to do so, is high

· strong support for the Bylaw requirement and food grading:

· local boards, environmental health officers, health experts and industry organisations in support

· health experts and environmental health officers consider it can raise public awareness and incentivise improved food safety

· 85 per cent of businesses support display of food grades

· recent international studies are undecided about whether food grading reduces foodborne illness and some suggest grades can be misleading for the public

· most territorial authorities in New Zealand do not have a food grade bylaw

· fills a regulatory gap in the absence of a national grading scheme

· 70 per cent of all high-risk food businesses that serve the public (cafes, restaurants, takeaways) currently required to display a food grade

· other comparable international jurisdictions have food grading.

· some comparable international jurisdictions do not require a food grade to be displayed

· there is public confusion because not all food businesses are required to display a food grade

· statutory penalties are not used to enforce the Bylaw.

Improvements to the Bylaw have been identified

24. If a new bylaw is made, it could improve on the current Bylaw by:

· clearly stating which food businesses are required to display a food grade

· clarifying where food grades should be displayed at physical and online sites.

Statutory options include making a new bylaw or allowing the bylaw to expire

25. Staff identified the following options to achieve the outcome sought:

· option one: (improve Bylaw) new bylaw requiring most food businesses that serve the public and are registered and verified by council to display a food grade

· option two: (extend Bylaw) new bylaw requiring most food businesses that serve the public regardless of registration or verification agency to display a food grade

· option three: (no bylaw) allow the Bylaw to expire but continue food grading

· option four: (no bylaw or grading) allow the Bylaw to expire and cease food grading.

26. An option to require National Programme food businesses to display a food grade was considered but not assessed further because they regulate lower risk businesses.

27. Staff assessed each option against assessment criteria. They reflect the core objective to improve and maintain business food safety standards to decrease the risk of foodborne illness, while ensuring compliance costs are reasonable and consistent with the Food Act. The criteria also reflect council’s statutory duties under the Local Government Act 2002.^{^[5]}

28. Table 3 provides a summary of the full assessment contained in Attachment A.

Table 3: Summary of assessment of options

	Effectiveness at improving and maintaining business food safety standards to decrease the risk of foodborne illness	Reasonableness of compliance costs
Option one: improve Bylaw (Recommended)	üü	üü
Option two: extend Bylaw	üüü	ûû
Option three: no bylaw	ü	üü
Option four: no bylaw or grading	ûû	üüü

Key: “ü” and “û” reflect the impact of the option against each criterion relative to other options.

Improving the current Bylaw (option one) is the most favourable option

29. Option one (improve Bylaw) scores most favourably against the assessment criteria. Staff recommend this option because:

· the current Bylaw and food grading scheme have strong public and operator support

· the current Bylaw and food grading scheme have support from health experts and environmental health officers as they can incentivise better food safety practices

· most food businesses that serve the public are currently required to display a food grade (6,711 or 70 per cent)

· it requires food businesses to display a food grade even if it is a lower grade

· it raises public awareness of food safety standards and enables them to make an informed decision about where to purchase food

· it has less compliance costs for business and council than option two and avoids the risk of inconsistency with the Food Act

· it can provide greater incentives for food businesses to improve food safety standards than options three and four which have no requirement to display

· it fills a regulatory gap in the absence of a national food grading scheme.

30. Option two (extend Bylaw) would require 81 per cent of all food businesses that serve food to the public to display a food grade. The key trade-off is it would increase compliance costs for food businesses not registered and verified by council and may be inconsistent with the Food Act. Further engagement with food businesses and the Ministry for Primary Industries would be required before adopting this option.

Staff have prepared a statement of proposal in line with statutory requirements

31. Staff have drafted a statement of proposal to implement option one (improve Bylaw) in Attachment A in accordance with statutory requirements and best practice drafting guidelines. Table 4 shows the main proposals.

32. Staff consider the proposed new bylaw does not give rise to any implications and is not inconsistent with the New Zealand Bill of Rights Act 1990 and would not be inconsistent with the Food Act.

Table 4: Summary of major proposals in the proposed new bylaw

Major proposals	Reasons for proposal
· require operators of food businesses to clearly display a valid food safety information certificate if they – o operate under a template food control plan o serve the public o are registered and verified by council.	· better protects public health from foodborne illness · continues to require most food businesses that serve the public (estimated 6,711 or 70 per cent) to display a food safety information certificate, for example most Auckland only based cafes, restaurants, bars and takeaways · incentivises most food businesses that serve the public to achieve high food safety standards · empowers the public to make informed decisions about where they purchase food
· require food safety information certificates to be displayed in specified locations depending on whether the food business has a physical and/or online site.	· requires food safety information to be displayed in locations that are visible to the public at stores, market stalls, food trucks and online prior to entering a premises or making a purchase · rules are clearer and easier to understand.

Major proposals

Reasons for proposal

· require operators of food businesses to clearly display a valid food safety information certificate if they –

o operate under a template food control plan

o serve the public

o are registered and verified by council.

· better protects public health from foodborne illness

· continues to require most food businesses that serve the public (estimated 6,711 or 70 per cent) to display a food safety information certificate, for example most Auckland only based cafes, restaurants, bars and takeaways

· incentivises most food businesses that serve the public to achieve high food safety standards

· empowers the public to make informed decisions about where they purchase food

· require food safety information certificates to be displayed in specified locations depending on whether the food business has a physical and/or online site.

· requires food safety information to be displayed in locations that are visible to the public at stores, market stalls, food trucks and online prior to entering a premises or making a purchase

· rules are clearer and easier to understand.

Staff recommend the committee commence the public feedback process

33. Staff recommend the committee makes the necessary determinations to delegate authority to the chairperson of the relevant committee following the 2019 local body elections to appoint a chair and two panel members selected from the Governing Body and the Independent Māori Statutory Board.

34. The panel attends ‘Have Your Say’ events as appropriate, deliberates and makes recommendations to the Governing Body on public feedback to the statement of proposal.

35. It is also recommended that staff be delegated authority to receive public feedback at ‘Have Your Say’ events as appropriate or in case a panel member cannot attend.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

36. The Bylaw impacts the operation of the Environmental Health Unit. Input was sought through face-to-face meetings and a workshop. Council units are aware of the impacts of possible changes to the Bylaw and their implementation role.

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

Local impacts and local board views

37. Local board member views were sought as part of the Bylaw review. Generally, local board members support the current Bylaw and food grading scheme.

38. Members were concerned about public confusion. For example, not all Auckland food businesses that serve the public are required to display a food grade and display requirements for market stalls and mobile shops are unclear.

39. The proposal addresses local board member concerns by clarifying display requirements. The proposal does not extend the display requirement (option two) because further investigation would be required to ensure this would not be inconsistent with the Food Act.

40. Local boards will have an opportunity to consider feedback from residents in their local board area prior to an opportunity to provide input to the panel in early 2020.

Tauākī whakaaweawe Māori

Māori impact statement

41. Kai is significant for Māori as it is embedded in the tikanga of manaakitanga and there is specific tikanga around its preparation and consumption. The sharing of kai with manuhiri is an essential part of marae tikanga.

42. Marae are exempt from verification under the Food Act where kai is prepared for customary purposes (for example, at a tangi).

43. Marae committees that responded to staff requests for feedback support food grading for businesses that sell food to the public. The proposal supports this view by continuing to require most food businesses to display a food grade.

Ngā ritenga ā-pūtea

Financial implications

44. Public consultation and implementation costs will be met within existing budgets.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

45. If the committee approves the recommendations, there may be public concern that the proposed new bylaw does not cover all Auckland food businesses.

46. The statement of proposal will explain the reasons for the proposal so the public can provide informed feedback. For example, an extension of the requirement to display a food grade to more food businesses may be inconsistent with the Food Act.

Ngā koringa ā-muri

Next steps

47. If the committee and Governing Body approve the recommendations, public consultation on the proposal will follow. Public consultation is currently scheduled for late 2019 or early 2020. ‘Have Your Say’ events will take place during the public consultation period.

48. The panel will consider any feedback during a publicly notified deliberation meeting that the public can observe. The panel will make its recommendations to the Governing Body. The Governing Body will decide whether to accept the panel recommendations and officially make a new bylaw by May 2020.

Ngā tāpirihanga

Attachments

No.	Title	Page
a ⇩	Food Safety Information Bylaw Statement of Proposal	133
b ⇩	Food Safety Bylaw 2013: Findings Report 2019	177
c ⇩	Food Safety Bylaw 2013: Options Report	243

Ngā kaihaina

Signatories

Authors

Julia Harker - Policy Analyst

Elizabeth Osborne - Policy Analyst

Authorisers

Kataraina Maki – General Manager - Community & Social Policy

Craig Hobbs – Director Regulatory Services

Regulatory Committee

11 July 2019

Request to Appoint Hearing Commissioners for Private Plan Change 21 (Southern Cross Hospitals Ltd) to the Auckland Unitary Plan (Operative in Part)

File No.: CP2019/10154

Te take mō te pūrongo

Purpose of the report

1. To request the appointment of Independent Hearing Commissioners to hear submissions and make decisions on Private Plan Change 21 (Southern Cross Hospitals Ltd) to the Auckland Unitary Plan (Operative in Part).

Whakarāpopototanga matua

Executive summary

2. The Private Plan Change seeks to rezone land at 3 Brightside Road and 149, 151 and 153 Gillies Avenue, Epsom from Mixed Housing Suburban and Single House Zones to Special Purpose – Healthcare Facility and Hospital Zone. It also seeks to remove the special character overlay from 149, 151 and 153 Gillies Avenue and amend transport provisions to specify the parking requirement for the hospital.

3. 176 primary submissions were received on the Private Plan Change request. The submissions raise a mixture of planning, visual landscape, urban design and transport matters.

4. It is considered appropriate that the hearings panel be made up of three independent commissioners, with expertise in planning, urban design or visual landscape and transport matters to hear submissions and make decisions on the Private Plan Change request.

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a) appoint four independent commissioners, with expertise in planning, urban design or landscape, transport and tikanga to hear submissions and make decisions on Private Plan Change 21 to the Auckland Unitary Plan (Operative in Part);

b) delegate authority to the chairperson of the Regulatory Committee (or its equivalent) to make replacement appointments to the hearing panel in resolution a) in the event that a member of the hearings panel is unavailable.

Horopaki

Context

5. Southern Cross Hospitals Limited lodged a private plan change to the Auckland Unitary Plan (Operative in Part) in July 2017. On 5 March 2019 the private plan change was considered and accepted by the council.

6. Private Plan Change 21 seeks to:

· rezone land at 3 Brightside Road from Mixed Housing Suburban to Special Purpose - Healthcare Facility and Hospital Zone

· rezone land at 149, 151 and 153 Gillies Avenue, Epsom from Single House to Special Purpose – Healthcare Facility and Hospital Zone

· remove the special character overlay from the sites at 149, 151 and 153 Gillies Avenue; and

· amend transport provisions to specify the minimum parking requirement of 1 space per 64m² for the hospital

7. The purpose of the Private Plan Change is to enable an expansion of the existing hospital at 3 Brightside Road. The expansion will be on 149, 151 and 153 Gillies Avenue.

8. The Private Plan Change was publicly notified on 21 March 2019. After the closing date for submissions on 18 April 2019, 176 primary submissions were received. The summary of submissions was publicly notified on 30 May 2019 with a closing date for further submissions being 13 June 2019.

9. There is a high degree of public interest on the proposal. Submitters have raised a mixture of planning, visual and landscape, urban design and transport matters. It is therefore recommended that submissions on the Private Plan Change request be heard and decided by a panel of commissioners with expertise in planning, visual and landscape, urban design and transport matters. As discussed further below, the relevant iwi authorities have also recommended that a commissioner with expertise in tikanga is appointed to the panel.

Tātaritanga me ngā tohutohu

Analysis and advice

10. Analysis will be provided in the Council Officer’s hearings report (section 42A report) for the Private Plan Change request. Key matters that require expert assessment include planning, visual and landscape, urban design and transport.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

11. The applicant’s infrastructure report indicates that there are no water or wastewater issues associated with the proposal. No feedback has been received from Watercare staff on the proposal.

12. The proposed rezoning will allow for an increased total maximum impervious area across the sites. The council’s Healthy Waters unit has advised that the applicant’s infrastructure report adequately addresses the key matters in relation to stormwater management and flooding.

13. The submission from Auckland Transport seeks that Council approves the Private Plan Change request provided the transport concerns in relation to parking, traffic generation, safety, access and construction traffic effects are resolved.

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

Local impacts and local board views

14. Southern Cross Hospitals Ltd met and provided information of the proposed Private Plan Change request and potential resource consent application for the future hospital development to the Albert-Eden Local Board in October 2018. The local board raised some matters including consideration of alternative sites, traffic, noise, building height and construction effects. On 18 April 2019 feedback was received from the local board opposing the Private Plan Change request in its entirety. The local board states that the Private Plan Change request would allow development that would be incompatible with the character of the neighbouring area and undermine the integrity of the Auckland Unitary Plan.

Tauākī whakaaweawe Māori

Māori impact statement

15. Southern Cross Hospitals Ltd consulted the relevant 11 iwi groups within the plan change area (see below). The draft Private Plan Change with rezoning information was sent to the iwi groups via email, providing opportunity for queries and feedback on 17 September 2018. No responses were received from the iwi groups.

· Ngāti Pāoa

· Ngāti Whātua o Kaipara

· Ngāi Tai Ki Tāmaki

· Ngāti Maru

· Ngāti Tamaoho

· Ngāti Tamaterā

· Ngāti Te Ata Waiohua

· Ngāti Whātua Ōrākei

· Te Akitai Waiohua

· Te Rūnanga o Ngāti Whātua

· Waikato -Tainui

16. No submissions were received from any mana whenua on full notification of the plan change.

17. As required under section 34A(1A) of the Resource Management Act, council staff contacted representatives from the above iwi authorities to establish whether they considered that the hearing panel for the plan change should include a commissioner with expertise in tikanga. Ngāti Whātua Ōrākei and Waikato-Tainui recommended such an appointment.

Ngā ritenga ā-pūtea

Financial implications

18. The cost of independent hearing commissioners will be recovered from Southern Cross Hospitals Ltd.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

19. Hearing commissioners are appointed from the pool of independent commissioners due to their professionalism, expertise and experience. A small number of elected members that hold the Good Decision-making accreditation may also sit as commissioners. These processes, in addition to staff reporting, ensure a high quality of informed decision-making and help avoid any procedural or judicial risks.

Ngā koringa ā-muri

Next steps

20. Council staff will commence preparation for a hearing to take place in October.

The key next steps involve:

· contacting the appointed Independent Hearing Commissioners to check their availability

· notifying submitters of the hearing dates and venue

· providing submitters with a copy of the hearing report

· Independent Hearing Commissioners conduct the hearing

· Council decision released.

Ngā tāpirihanga

Attachments

There are no attachments for this report.

Ngā kaihaina

Signatories

Author

Panjama Ampanthong - Principal Planner

Authorisers

John Duguid - General Manager - Plans and Places

Craig Hobbs – Director Regulatory Services

Regulatory Committee

11 July 2019

Attachment A: for 11 July 2019

RODNEY – Local Board Area (2 Appeal)

*Appellant*	*Stellan Trust*	*Received*	*4 June 2019*
*References*	*ENV-2019-AKL-000099* *Council : BUN60322627, LUC60322701, WAT60322704, DIS60322702, DIS60323625 and LUS60323625*
*Applicant:*	*New Zealand Transport Agency (NZTA)*
*Site address*	*Multiple Properties Between Hudson Road and 102 State Highway 1, Warkworth*
*Other parties*
*Description*	*An appeal to resource consents associated with the construction, operation and maintenance of a widened State Highway One at Warkworth,* being the intersection with the future Matakana Link Road. (There is a related confirmation of a Notice of Requirement for alteration of designation 6763) The appellant’s submission seeks a reduced extent of designation and provision for access.
*Iwi comments*	*The application did not trigger any requirement for a Cultural Impact Assessment or raise any iwi or Treaty issues.* *The Requiring Authority is to prepare a Protocol for any accidental archaeological discoveries during Construction Works.*
*Status*	*New appeal by a submitter. Yet to be timetabled.*

Appellant	Goatley Holding Limited	Received	4 June 2019
References	ENV-2019-AKL-000097 Council : BUN60322627, LUC60322701, WAT60322704, DIS60322702, DIS60323625 and LUS60323625
Applicant:	New Zealand Transport Agency (NZTA)
Site address	Multiple Properties Between Hudson Road and 102 State Highway 1, Warkworth
Other parties
Description	An appeal to resource consents associated with the construction, operation and maintenance of a widened State Highway One at Warkworth, being the intersection with the future Matakana Link Road. (There is a related confirmation of a Notice of Requirement for alteration of designation 6763) The appellant’s submission seeks a reduced extent of designation and provision for access.
Iwi comments	The application did not trigger any requirement for a Cultural Impact Assessment or raise any iwi or Treaty issues. The Requiring Authority is to prepare a Protocol for any accidental archaeological discoveries during Construction Works.
Status	New appeal by a submitter. Yet to be timetabled.

Hibiscus and Bays - Local Board Area (1 Appeal)

Appellant	Auckland Council (Community Facilities)	Received	22 December 2017
References	ENV-2017-AKL-00075 - Council – SUB60069647
Site address	Orewa Beach Esplanade Reserve, between Kohu Street and Marine View
Other parties	Four 274 parties
Description	Appeal by the applicant against council’s decision to refuse consent to the construction of a seawall, walkway and accessory access structures at the Orewa Beach Esplanade Reserve, between Kohu Street and Marine View.
Iwi comments	Cultural values assessments were prepared by Ngati Manuhiri and Ngai Tai Ki Tamaki that confirmed conditional support for the application. The environment is highly modified and accidental discovery protocols are sought. The application was publically notified and no submissions from Iwi were submitted.
Status	Court heard from the parties, and by minute of 22 February 2018 set the appeal down for a pre-hearing on jurisdiction over the right to appeal and determined that an amicus curiae should be appointed. Affidavits prepared for the pre-hearing set for 9 April 2018 that proceeded as scheduled. The Court on 2 May 2018 released its decision confirming jurisdiction over the Council’s right to appeal. A pre-hearing of 31 July 2018 discuss timetabling, possible mediation dates and sought the appellant to clarify the appeal issues. Court assisted mediation took place on the 21st and 22^nd of February 2019. The substantive issues have been addressed and agreed between the main parties, some s.274 parties have not agreed. The matter proceeded to Court hearing, for the full week of 6^th May 2019. *Awaiting decision from the Court.*

Devonport Takapuna – Local Board Area (1 Appeal)

Appellant	Pierce Road Coalition	Received	21 February 2019
References	ENV-2019-AKL-000028 - Council – LUC60313256
Site address	110 Kitchener Road and 1a Pierce Road, Milford
Other parties	One 274 party
Description	Appeal by submitters against Council’s decision to grant consent to a six story building containing 20 residential apartments and one commercial unit.
Iwi comments	The application was publically notified and no submissions from Iwi were submitted.
Status	*Agreement to settle the appeal reached at mediation on Wed 29 May 2019.*

WAITAKERE – Local Board Area (1 Appeal)

Appellant	Trustees of Forest Trust and Successors	Received	19 July 2018
References	ENV-2018-AKL-000145 Council: SUB-2011-63
Site address	199 Anzac Valley Road, Waitakere
Other parties	None
Description	Appeal against hearing decision to uphold in part and dismiss in part a section 357 objection to conditions and costs of a subdivision resource consent (SUB-2011-63)
Iwi comments	The application did not trigger any requirement for a Cultural Impact Assessment or raise any iwi or Treaty issues.
Status	Appeal lodged on 26 July 2018. Environment Court decision to refuse appeal issued 18 December 2018. Appealed to the High Court however there is now a five year imposed by the Court stay against any current or new appeals lodged by P. Mawhinney of the Forest Trust.

Henderson-Massey – Local Board Area (1 Appeal)

Appellant

Gordon Moase

Received

20 May 2019

References

ENV-2019-AKL-000091	Moase v Auckland Council

Site address

105 Waimumu Rd, Massey, Auckland

Other parties

N/A

Description

Appeal against council’s decision to approve landuse and subdivision consents for 29 dwellings.

Iwi comments

The application did not trigger any requirement for a Cultural Impact Assessment or raise any iwi or Treaty issues.

Status

The Court has requested a memorandum from the Council about the residential activity status of the application and whether there is jurisdiction to appeal. The Environment Court struck out this appeal on 10 June 2019 for lack of jurisdiction. Matter complete.

ALBERT-EDEN –Local Board Area (1 Appeal)

Appellant	Panuku Development Auckland v Auckland Council	Received	04 September 2018
References	ENV-2017-AKL-000176 Council – LUC60303721 & DIS60303722
Site address	198-202 and 214-222 Dominion Road and 113-117 Valley Road, Mt Eden
Other Parties	Pacific Fringe Ltd, Astrid Modrow, Chris King, John Cram, Julie Singh, June Beaumont, Krish Jayaratne, LE & JE Whiley, Michael Wang, Nancy Smith, Peter Lange, Roger Bannan, Robert Dexter, Richard Peters, Ruth Batten, Stuart Wong, Walter Kelland, Valerie Turner
Description	Appeal against a hearing commissioner’s decision to refuse resource consent for a mixed use development comprising four new buildings with 102 residential units, nine retail units and 115 carparks. The commissioner’s grounds for refusal related to the bulk and scale of the proposal and the associated visual, shading and dominance effects, and the adverse effects on Special Character values from the loss of the Universal Building (a character-supporting building).
Iwi comments	The application did not trigger any requirement for a Cultural Impact Assessment, attract submissions from Iwi or raise Treaty issues.
Status	Appeal regarding a development that has generated media, political and local interest. Council has met on a without prejudice basis with the appellant (18 and 24 September 2018). Court assisted mediation occurred on 31 October 2018, no agreement reached between the parties. Further informal discussion between the parties (December 2018). Second court-assisted mediated occurred on 16 January 2019. Mediation agreement reached – subject to various conditions being satisfied. Council to report back to the Court as to progress by 15 February 2019. A number of the s274 parties have requested further time to consider their positions. Council has filed a memorandum with the Court seeking a judicial conference on the first available date after 15 March 2019. Pre-hearing conference scheduled for 2 April 2019. The pre-hearing conference held on 2 April 2019 confirmed that the matter will proceed to a hearing on or after 15 July 2019. A timetable for evidence exchange has been issued. The Court has issued a notice of hearing confirming that the hearing will commence of 19 August 2019.

WAIHEKE –Local Board Area (1 Appeal)

Appellants	Cable Bay Wines Ltd v Auckland Council	Received	2 February 2018
References	ENV-2017-AKL-000010 Council – LUC60127798
Site address	12 Nick Johnston Drive, Waiheke Island
Applicant	Cable Bay Wines Limited
Other parties	Stephen & Suzanne Edwards, Julie Loranger & Lindsay Niemann, Michael & Christine Poland.
Description	Cable Bay appeal Council’s decision to refuse retrospective consent relating to the unlawful establishment and use of an additional dining area known as ‘The Verandah’. The principal issues in contention relate to the scale and intensity of the activity and the general amenity / noise effects associated with the use of the structure.
Iwi comments	The application was limited-notified to neighbours. No iwi group indicated a need for a cultural impact assessment. The Hearing Commissioners considered the application in accordance with the requirements of the RMA 1991 and in particular Part 2 of the RMA.
Status	The Environment Court directed court-assisted mediation after the expiry of the section 274 period on 15 March 2018. Three s274 parties have joined. Awaiting confirmation of Environment Court mediation date and to involve both the consent appeal and the enforcement order application. Mediation held on 2 July 2018. No agreements reached between the parties. Caucusing between noise experts to on 5 July 2018 and a further mediation to be scheduled. No agreement reached at second mediation and matter to be set down for a hearing. The Court has confirmed a joint resource consent appeal and enforcement order hearing commencing on 7 November 2018. The appellant’s evidence is due by 7 September and the Council’s evidence is due by 21 September. Council to call Planning and Noise expert witnesses. Council’s evidence was filed with the Court on 21 September 2018. The hearing commenced on 7 November 2018 and an interim decision on the resource consent was issued on 21 November to convey the Court’s refusal of part of the application, particularly in relation to the use of the lawn for outdoor dining and drinking, and make further directions about the refinement of conditions of consent to aspects of the proposal which might attract consent. An interim decision on the application for enforcement order was issued on 28 November 2019 ordering Cable Bay to undertake various steps to limit their activities. The Court intends that the orders will substantially mirror the final resource consent conditions. Further monitoring and testing work order by the Court is ongoing. A second interim decision on the resource consent appeal was issued by the Court 22 February 2019 confirming the Court’s earlier decision to refuse consent in part. Further collaborative noise monitoring and assessment has been undertaken by the parties’ acoustic engineers and a report on this work is to be provided to the Court by 8 March 2019. This will assist the court in determining whether or not consent can be granted to a modified proposal for the restaurant, alfresco dining and outdoor functions. A judicial teleconference held on 28 March 2019. A further 1-2 day hearing will be scheduled, however that will not be held until July (as the Judge is away for May and June). An evidence exchange timetable will be set in due course. The Court has indicated that the hearing will resume for 2 days in the week of 26 August. A timetable for evidence exchange has been issued.

Waitematā (12 appeals)

*Appellants*	*Society for the Protection of Western Springs Forest Incorporated 2736092 & G Baldock v Auckland Council*	*Received*	*11 June 2019*
References	*ENV-2019-AKL-000104* *LUC60321424*
Site address	*859 Great North Road, Grey Lynn*
Applicant	*Auckland Council Community Facilities*
Other parties	*n/a*
Description	*To remove approximately 200 pine trees in Te Wai Orea – Western Springs Lakeside Park, including earthworks for an access track and restoration planting.*
Iwi comments	Initial engagement and responses received from Ngati Paoa, Ngati Whatua Orakei, Ngati Whatua Kaipara, Te Patukirikiri, Te Runanga o Ngati Whatua, Waikato Tainui, Waiohua Te Ahiwaru Makaurau and Te Kawerau a Maki. Generally supportive of the works. No mana whenua groups have appealed or joined as s274 parties.
Status	*New appeal. A timetable for court-assisted mediation has not yet been set.*

*Appellants*	*Urban Auckland, The Society for the Protection of Auckland City and Waterfront Inc.v Auckland Council; and* Ngāti Whātua Orakei Whaia Maia Limited v Auckland Council**	*Received*	*15 May 2019* *15 May 2019*
References	ENV 2019 AKL 000* CST60323353**
Site address	*Wharf/ 11-99 Brigham Street Auckland Central*
Applicant	*Panuku Development Auckland Limited*
Other parties	*Various 274 parties in support of applicant* *Devonport Heritage in support of Urban Auckland*
Description	Appeal against council’s decision to grant consent to construct two ship mooring dolphins and wharf access structures from the end of Queens Wharf and undertake alterations to the existing Queens Wharf structure including strengthening, bollard replacement, new piles and modifying the sub-structure.
Iwi comments	*Submissions by various Mana whenua groups opposed or supported the application and were neutral by the end of the hearing.*
Status	*New appeal yet to be timetabled*

Appellants	Drago Jujnovich v Auckland Council	Received	11 December 2018
References	ENV 2018 AKL 000371
Site address	560 Richmond Road, Ponsonby
Applicant	Drago Jujnovich c/- Jadren Trust
Other parties	Lesley Baddon
Description	Appeal against council’s decision to refuse resource consent to remove an existing dwelling and utilise the site for up to 13 carparking spaces (staff cars and cars waiting to be repaired) associated with the West Lynn Paint and Panel shop.
Iwi comments	No iwi issues. The application was considered in accordance with the RMA.
Status	The Environment Court has set down a reporting date of 31 January 2019 to advise of any negotiations on the appeal. Joint memorandum filed by parties on 31 January for a further reporting date to the Court of 12 March 2019. Mediation set down for 28 March has since been deferred to 17 April 2019. Mediation held and parties have agreed to settle the appeal. Conditions currently being drafted by Council for circulation to parties for comments. Draft consent order to settle the appeal subject to amended proposal and conditions has been filed dated 10 June for approval by the Environment Court.

Appellants	Henry v Auckland Council North Eastern Investments Limited v Auckland Council The Dark Horse Trust & Others v Auckland Council The St Mary’s Bay Association Inc. & Herne Bay Residents Association Inc.	Received	30 November 2018 30 November 2018 30 November 2018 30 November 2018
References	ENV 2018 AKL 000359 (Henry) ENV 2018 AKL 000358 (NEIL) ENV 2018 AKL 000355 (Dark Horse) ENV 2018 AKL 000357 (Associations)
Site address	St Mary’s Bay and Masefield Beach
Applicant	Auckland Council (Healthy Waters)
Other parties	Numerous
Description	Appeal against council’s decision to grant resource consent for the St Mary’s Bay and Masefield Beach Water Quality Improvement Project.
Iwi comments	Iwi submitted in support of the application and have joined the appeals as a section 274 party in support of the Council’s decision.
Status	The Environment Court has set down mediation in weeks 18 and 25 February 2019. Environment Court mediations held on 18 and 25 February 2019 to clarify issues and discuss and amend conditions of consent. Parties are to file a joint memorandum by 1 March 2019 setting out a timetable for a hearing in June. Appeal by NEIL and its section 274 notices to the appeals listed above withdrawn on 25 February 2019. Late applications by Watercare and Mr. and Ms. Henry to join as a section 274 party granted by the judge at the judicial conference held on 29 March 2019. Mediations held on 18 and 25 February. Parties are still in discussions with a reporting date to be agreed and approved by the Court. Henry Appeal is now withdrawn. Parties have requested a reporting date of 12 July 2019 with the court to allow Watercare and parties to seek independent review of proposed stormwater pipe.

Appellants	Ngāi Tai Ki Tāmaki v Auckland Council Te Ākitai O Waiohua, Ngaati Whanaunga, Ngāti Tamaoho, Ngāti Tamaterā, Te Patukirikiri, And Ngāti Maru v Auckland Council Ngāti Whātua Orakei Whaia Maia Limited v Auckland Council	Received	30 January 2019 30 January 2019 31 January 2019
References	ENV-2019-AKL-000014 ENV-2019-AKL-000015 ENV-2019-AKL-000016
Site address	31 Westhaven Drive, Auckland Central
Other Parties	Ngāti Te Ata
Description	Appeal against the decision of hearing commissioners to grant resource consents for the redevelopment of existing pile moorings within the Westhaven Marina, including land reclamation, installation of new pile berths, a new car park, and a new observation deck and public open space area
Iwi comments	The applications were publicly notified. Submissions from appellant iwi were received, along with other iwi who have not lodged an appeal against these decisions.
Status	ENV-2019-AKL-000014 and ENV-2019-AKL-000015 were withdrawn on 13 January 2019. Mediation scheduled with remaining appellant (Ngāti Whātua Orakei Whaia Maia Limited) and s274 parties on the 29 April 2019. Mediation for 29 April cancelled at the agreement of all parties, appeal will proceed to a hearing, to be held on or after 19 August. A s116 application was made to allow consents to commence while appeal is determined, this was approved by EC on the 27 March 2019. *Matter proceeding to hearing, though the appellant is seeking a 2-3-month delay to this process.*

Appellant	Ferry Building Limited v Auckland Council	Received	25 February 2019
References	ENV-2019-AKL-000030
Site address	Quay Street, Auckland Central
Other Parties	Cooper and Company NZ
Description	Appeal against the decision of hearing commissioners to grant resource consents for the placement of underground seawalls along Quay St (between Marsden Wharf and Queens Wharf) for seismic strengthening purposes (Stage 1 of project).
Iwi comments	The application was publicly notified. No submissions were received from iwi.
Status	Recently received. Auckland Transport has lodged a memorandum seeking priority hearing. Waiting for mediation date. Evidence exchange timetable provided by the court. Mediation set down for 11 April 2019. Draft conditions agreed by the parties at mediation. A draft consent order has been filed with the Environment Court for approval. Consent order with amended conditions dated 16 May 2019 now issued by the Environment Court. File Closed.

ORAKEI (1 appeal)

Appellants	Summerset Villages (St John) Limited v Auckland Council	Received	10 August 2018
References	ENV-2018-AKL-000160
Site address	55-57 Ripon Crescent, Meadowbank
Applicant	Summerset Villages (St John) Limited
Other parties	Andrew and Jeanette Hayes and others
Description	An appeal against a decision to refuse an application to construct and operate a retirement village consisting of 7 buildings with 344 residential units at 55-57 Ripon Cres, Meadowbank
Iwi comments	The resource consent application was publicly notified and determined by commissioners in accordance with the RMA. Involved stormwater discharge and removal of SEA. CIA provided by Ngai Tai ki Tamaki.
Status	Council directed to report back to the Court by 24 September 2018 on progress regarding any negotiation/mediation. Awaiting further directions from the Court and confirmation of a mediation date. The appellant has requested further time to consider possible design revisions. The Court required the appellant to report back on 30^th November as to progress before scheduling mediation. Court-assisted mediated is scheduled for 27 February 2019. No settlement reached at mediation. The matter is to proceed to a hearing. The timetable for evidence exchange has not yet been set. The Court issued a Minute on 20 March 2019 confirming the timetable for evidence exchange. A 5 day fixture will be allocated after 5 August 2019. Council’s evidence in chief was filed with the Court on 4 June 2019. *Expert conferencing scheduled for the week beginning 1 July.*

HOWICK (1 appeal)

Appellant	508 Chapel Road Partnership Trust	Received	16 October 2018
References	ENV-2018-AKL 000281 Council – LUC60292090
Site address	508 Chapel Road Flat Bush
Applicant	508 Chapel Road Partnership Trust
Other Parties	W & B Smith, C Yang, M Muthu and T Mahesh
Description	- Appeal by applicant against a decision refusing consent to establish a childcare centre accommodating 60 children and eight full-time staff at 508 Chapel Road, Flat Bush, Auckland
Iwi comments	No iwi issues. The application was considered in accordance with the RMA.
Status	The Court has asked parties to confirm a list of issues unresolved between the parties, witnesses, timetabling and whether they agree to Court assisted mediation by 30 November 2018. The applicant was declined in regard to adverse neighbourhood character and residential amenity effects arising from the traffic access arrangements. Proceeded to mediation on 15 February 2019. Discussion primarily around traffic matters and alternatives. No settlement reached. *Caucusing and evidence exchange proceeding during April to June. Evidence from the applicant received.*

PAPAKURA – Local Board Area (1 Appeal)

Appellant

Wallace Group Limited, BJ Wallace Trust and SJ Wallace Trust

Received

14 March 2019

References

ENV-2019-AKL 000043

- Council – LUC60311805, DIS60303201, DIS60303159

Site address

3 Popes Road, Takanini

Applicant

Alpha Dairy Limited

Other parties

- Spark NZ Ltd

Description

- An appeal against a decision to grant consents for the construction, operation and maintenance of a new dairy processing facility for the production of infant formula on a Business- Light Industry Zone site with an area of 22,372m². The consent was publicly notified, with 4 submissions in opposition received.

Iwi comments

No iwi group indicated a need for a cultural impact assessment and no submissions were received from iwi. The commissioners considered the application in accordance with the requirements of the RMA 1991 and in particular Part 2 of the RMA

Status

Mediation set down for 28 May has since been vacated.

FRANKLIN – Local Board Area (4 Appeals)

Appellant	Jacks Ridge Limited	Received	24 April 2019
References	ENV-2019-AKL 00067 - LUC60322216
Site address	76 Kimptons Road, Brookby
Applicant	Jacks Ridge Limited
Other parties	- Non-notified application.
Description	An appeal against a decision on an application to refuse consent to construct four commercial storage buildings. The consent proceeded without notification being found that the environmental effects are not more than minor however then refused as being contrary to the objectives and policies for the Rural - Mixed Rural Zone. The decision expresses concerns as to the nature, purpose and scale of the non-residential activity and being not associated with rural production.
Iwi comments	No iwi group indicated a need for a cultural impact assessment. The commissioner considered the application in accordance with the requirements of the RMA 1991 and Part 2 of the RMA.
Status	Recently lodged and likely to proceed to mediation in the coming month. The matter proceeded to mediation on 4 June 2019. The parties continue to proceed towards a possible consent order on the bases of a revised proposal.

Appellant	Clevedon North Limited	Received	22 February 2019
References	ENV-2019-AKL 000029 - Council – (BUN60303009) LUC60303381, SUB60303384, DIS60303387
Site address	52 North Road, Clevedon
Applicant	Clevedon North Limited
Other parties	- Numerous 274 parties have joined.
Description	An appeal against a decision on an application for subdivision and land use consents to subdivide a 9.04ha site into 68 residential lots. Associated earthworks, new roading and infrastructure. The consent was publically notified, with 43 submissions in opposition received.
Iwi comments	No iwi group indicated a need for a cultural impact assessment and no submissions were received from iwi. The commissioners considered the application in accordance with the requirements of the RMA 1991 and in particular Part 2 of the RMA
Status	The appeal proceeded to mediation on 30 May 2019. The parties remain open to exploring alternative designs that may be the subject of a second mediation. A revised design was the bases of a second mediation on 25 June and an agreement in principal was reached. The parties will continue to work towards agreement on a finalised design and conditions of consent.

Appellant	Signature Building Ltd	Received	22 January 2019
References	ENV-2019-AKL 000009 Council – LUC60313362
Site address	17A Bell Road, Beachlands
Applicant	Signature Building Ltd
Other parties	- Beachlands Neighbourhood Voice Inc.
Description	Appeal by the applicant against the Council decision to decline consent to establish a childcare facility for 105 children and 17 staff. The consent was publicly notified, with 83 submissions received (82 in opposition)
Iwi comments	No iwi group indicated a need for a cultural impact assessment and no submissions were received from iwi. The commissioners considered the application in accordance with the requirements of the RMA 1991 and in particular Part 2 of the RMA
Status	Mediation held 29 March. No agreement reached at mediation however parties have agreed to attend further mediation in May. A revised proposal was the subject of a second mediation on 15 May 2019. Agreement was not reached and the matter is to be timetabled for evidence exchange and hearing.

Appellant	Ahuareka Trustees (No. 2) Ltd	Received	19 November 2015
References	ENV-2015-AKL-000147 Council – 42081
Site address	650-680 Whitford Maraetai Road, Whitford
Other parties	Whitford Residents and Ratepayers Association
Description	Appeal against Council’s decision to refuse consent to establish a hamlet of 186 households and ancillary buildings, a country pub and restaurant, retail and commercial units and carpark in the Whitford Rural B zone.
Iwi comments	No iwi submissions
Status	Appeal reported to the Committee in December 2015. Mediation held 11 February 2016. Appeal reported to the Regulatory Committee on 1 December 2016. Evidence exchange occurred in February/March 2017. Judicial teleconference held 30 March. Court hearing proceeded within the week 3 July 2017, with the applicants reply to be filed in writing. Decision of the Court received 15 December 2017 – appeal declined. Significant policy-based decision supporting provisions of AUP (OP). Court costs being sought, otherwise appeal matters complete. The Environment Court decision since appealed by the appellant to the High Court on 26 January 2018. A case management conference is scheduled for 6 March. Council filed its submissions on 31 August and a hearing has been set for 9 October 2018. The appellant’s lawyer requested a deferral for health reasons, which was agreed to. The hearing will now not be held until early 2019. *High Court hearing held 9 May 2019 and awaiting decision.*

Regionwide – All Local Board Areas (3 Appeals)

*Appellants*	*Royal Forrest and Bird Protection Society of NZ Inc. v Auckland Council* *Housing New Zealand Corporation v Auckland Council* *Herne Bay Residents Association Inc.& The St Mary’s Bay Association Inc.*	*Received*	*10 May 2019* *10 May 2019* *15 May 2019*
*References*	ENV 2019 AKL ENV 2019 AKL ENV 2019 AKL
*Site address*	Regionwide
*Applicant*	Auckland Council (Healthy Waters)
*Other parties*	Numerous
*Description*	Appeals against council’s decision to grant resource consent for the discharges of stormwater from existing and future urban landuses that will enter Council’s stormwater network; and discharges of stormwater from the Council’s stormwater network to the environment.
*Iwi comments*	Mr. Tame Te Rangi made submissions on behalf of Te Mana Whenua Katiaki Forum which has membership from each of the 19 mana whenua entities with interests in the Auckland Council area and supported the application. There were other submissions from iwi including submission lodged by Ngati Tamaoho initially opposed the application but supported it at the hearing based on conditions recommended by the applicant.
*Status*	*The section 274 party notice timeframe closes at end of May 2019. Waiting for the Environment Court directions on the appeals and a mediation date.*

Regulatory Committee

11 July 2019

REGULATORY COMMITTEE FORWARD WORK PROGRAMME 2019 / 2020

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 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 REG/2018/58 13/9/18 - report to seek direction on the content of the statement of proposal for the management of freedom camping 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 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 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 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 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 REG/2019/7 14/3/19 – a report to request a statement of proposal that makes a new bylaw REG/2019/12 14/3/19 – a report to determine outcome of review and decide whether to make changes 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 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 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 Progress to Date: Report 14/2/19 received REG/2019/8 Report 14/3/19 received REG/2019/14 Report 11/4/19 received REG/2019/23 Report 9/5/19 received REG/2019/30 Report 13/6/19 received REG/2019/35		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 updates Progress to Date: Report 13/6/19 Compliance work with taverns hosting pokie machines REG/2019/34		Q4	Q1	Q2	Q3

[1] Bylaw made under section 145 of the Local Government Act 2002 and section 64 of the Health Act 1956.

[2] Section 158 and 160A of the Local Government Act 2002.

[3] Sections 83, 83AA, 86, 152A, 155 and 156 of the Local Government Act 2002 and section 446 Food Act 2014

[4] Section 156 via section 82 of the Local Government Act 2002 (council in its discretion elects to use the special consultative procedure for decision to allow a bylaw to expire as if it were a decision to revoke a bylaw).

[5] Local Government Act 2002, sections 3, 10, 14 and 155.

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