Agenda of Regulatory Committee

Terms of Reference

Responsibilities

The committee is responsible for regulatory hearings (required by relevant legislation) on behalf of the council. The committee is responsible for appointing independent commissioners to carry out the council’s functions or delegating the appointment power (as set out in the committee’s policy). The committee is responsible for regulatory policy and bylaws. Where the committee’s powers are recommendatory, the committee or the appointee will provide recommendations to the relevant decision-maker.

The committee’s key responsibilities include:

· decision-making (including through a hearings process) under the Resource Management Act 1991 and related legislation

· hearing and determining objections under the Dog Control Act 1996

· decision-making under the Sale and Supply of Alcohol Act 2012

· hearing and determining matters regarding drainage and works on private land under the Local Government Act 1974 and Local Government Act 2002 (this cannot be sub-delegated)

· hearing and determining matters arising under bylaws

· appointing independent hearings commissioners to a pool of commissioners who will be available to make decisions on matters as directed by the Regulatory Committee

· deciding who should make a decision on any particular matter including who should sit as hearings commissioners in any particular hearing

· monitoring the performance of regulatory decision-making

· where decisions are appealed or where the committee decides that the council itself should appeal a decision, directing the conduct of any such appeals

· considering and making recommendations to the Governing Body regarding the regulatory and bylaw delegations (including to Local Boards)

· recommending bylaws to the Governing Body for consultation and adoption

· reviewing local board and Auckland water organisation proposed bylaws and making recommendations to the Governing Body

· appointing panels to hear and deliberate on public feedback related to regulatory policy and bylaw matters

· deciding regulatory policies that are not otherwise the responsibility of another committee

· deciding regulatory policies, standards and controls associated with bylaws including those delegated to the former Regulatory and Bylaws Committee, under resolution GB/2012/157 (dogs) and GB/2014/121 (alcohol)

· receiving local board feedback on bylaw and regulatory policy development and review

· adopting or amending a policy or policies and making any necessary sub-delegations relating to any of the above areas of responsibility to provide guidance and transparency to those involved.

Not all decisions under the Resource Management Act 1991 and other enactments require a hearing to be held and the term “decision-making” is used to encompass a range of decision-making processes including through a hearing. “Decision-making” includes, but is not limited to, decisions in relation to applications for resource consent, plan changes, notices of requirement, objections, existing use right certificates, certificates of compliance, regulatory policy and bylaws and also includes all necessary related decision-making.

In adopting a policy or policies and making any sub-delegations, the committee must ensure that it retains oversight of decision-making and that it provides for councillors to be involved in decision-making in appropriate circumstances.

For the avoidance of doubt, these delegations confirm the existing delegations (contained in the chief executive’s Delegations Register) to hearings commissioners and staff relating to decision-making under the RMA and other enactments mentioned below but limits those delegations by requiring them to be exercised as directed by the Regulatory Committee.

Relevant legislation includes but is not limited to:

All Bylaws

Biosecurity Act 1993

Building Act 2004

Dog Control Act 1996

Fencing of Swimming Pools Act 1987

Gambling Act 2003

Health Act 1956

Land Transport Act 1998

Local Government Act 1974

Local Government Act 2002

Local Government (Auckland Council Act) 2009

Maritime Transport Act 1994

Psychoactive Substances Act 2013

Resource Management Act 1991

Sale and Supply of Alcohol Act 2012

Waste Minimisation Act 2008

Related Regulations

Powers

(i) All powers necessary to perform the committee’s responsibilities.

Except:

(a) powers that the Governing Body cannot delegate or has retained to itself (section 2)

(b) where the committee’s responsibility is limited to making a recommendation only.

(ii) Power to establish subcommittees.

Exclusion of the public – who needs to leave the meeting

Members of the public

All members of the public must leave the meeting when the public are excluded unless a resolution is passed permitting a person to remain because their knowledge will assist the meeting.

Those who are not members of the public

General principles

· Access to confidential information is managed on a “need to know” basis where access to the information is required in order for a person to perform their role.

· Those who are not members of the meeting (see list below) must leave unless it is necessary for them to remain and hear the debate in order to perform their role.

· Those who need to be present for one confidential item can remain only for that item and must leave the room for any other confidential items.

· In any case of doubt, the ruling of the chairperson is final.

Members of the meeting

· The members of the meeting remain (all Governing Body members if the meeting is a Governing Body meeting; all members of the committee if the meeting is a committee meeting).

· However, standing orders require that a councillor who has a pecuniary conflict of interest leave the room.

· All councillors have the right to attend any meeting of a committee and councillors who are not members of a committee may remain, subject to any limitations in standing orders.

Independent Māori Statutory Board

· Members of the Independent Māori Statutory Board who are appointed members of the committee remain.

· Independent Māori Statutory Board members and staff remain if this is necessary in order for them to perform their role.

Staff

· All staff supporting the meeting (administrative, senior management) remain.

· Other staff who need to because of their role may remain.

Local Board members

· Local Board members who need to hear the matter being discussed in order to perform their role may remain. This will usually be if the matter affects, or is relevant to, a particular Local Board area.

Council Controlled Organisations

· Representatives of a Council Controlled Organisation can remain only if required to for discussion of a matter relevant to the Council Controlled Organisation.

Regulatory Committee

28 November 2019

Objection to stormwater works at 30 and 32 Kohinoor Avenue, Māngere

File No.: CP2019/19439

Te take mō te pūrongo

Purpose of the report

1. To hear and determine an objection to proposed stormwater works at 30 and 32 Kohinoor Avenue, pursuant to section 181 of the Local Government Act 2002.

Whakarāpopototanga matua

Executive summary

2. This report recommends that the Regulatory Committee endorse the proposed public stormwater works at 30 and 32 Kohinoor Avenue, Māngere to manage the stormwater effects of the approved development at 28 Kohinoor Avenue.

3. A developer has obtained approval from the council to connect a new development at 28 Kohinoor Avenue, Māngere to the public stormwater manhole that is located on the neighbouring property at 32 Kohinoor Avenue.

4. The proposed works involve directionally drilling a 10-metre length pipe below the driveway shared by number 30 and 32 Kohinoor Avenue (see Attachments A and B). The work is estimated to take up to two days. Once constructed, this pipe will be vested in the council as a public stormwater asset.

5. The owners of 30 and 32 Kohinoor Avenue have refused the developer access to their property for this purpose. Council-led efforts to facilitate an agreement have been unsuccessful (see Attachment C).

6. After an assessment of the proposal and alternative options (see Attachment D), the council has determined that the works constitute necessary public stormwater works. It has issued a notice under section181(2) of the Local Government Act 2002 informing the landowners of its intention to construct the works as a council project.

7. The landowners have lodged a written objection to the works, on the grounds that they have not provided their consent, and alternative connections are possible. They have also expressed concerns over various possible impacts on themselves and their children including safety, harassment and environmental wellbeing (see Attachment E).

8. A hearing is now necessary for the Regulatory Committee to hear the objections and determine whether to proceed with the works. This is in line with the process set out in Schedule 12 of the Local Government Act 2002.

9. If approved, staff will proceed with the works pursuant to section 181(2) of the Local Government Act 2002 on the basis that the work is necessary to manage stormwater, is designed in accordance with Auckland Council standards and is the most efficient option, with minimal impact on landowners.

10. If the Regulatory Committee determines that the works should proceed, the council will work with the landowners to ensure the works are managed to minimise disruption for the families. Works are expected to be undertaken in early 2020, and will take approximately two days.

Ngā tūtohunga

Recommendations

That the Regulatory Committee:

a) hear and determine the objections by the owners of 30 and 32 Kohinoor Avenue according to clause 1(e) of Schedule 12 of the Local Government Act 2002

b) resolve that the council will proceed with the extension of the public stormwater network from 32 Kohinoor Avenue, across the driveway of 30 Kohinoor Avenue to connect with 28 Kohinoor Avenue (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

11. Auckland Council’s Healthy Waters Department is responsible for maintaining the public stormwater network in Auckland. The public stormwater network consists of over 6,000km of pipes and other assets (such as manholes and culverts), some of which are located on private land.

12. Section 181(2) of the Local Government Act 2002 empowers the council to ‘construct works on or under private land or under a building on private land that it considers necessary for sewage and stormwater drainage’. Such works require either the written consent of the property owners, or that the council follows the process set out in Schedule 12 of the Local Government Act 2002.

13. Schedule 12 requires that affected landowners are provided with a description of the proposed works, including plans, and are given the opportunity to object to the works within one month of notification. If an objection is made, a hearing must be arranged. After hearing objections, the council must then determine to either abandon the works proposed, or proceed with the works proposed, with or without any alterations that the council thinks fit.

Enabling stormwater management on Kohinoor Avenue, Māngere

14. A developer has been granted resource consent by Auckland Council’s regulatory department to subdivide a property at 28 Kohinoor Avenue Māngere. A condition of that resource consent is that the new development connects to the public stormwater system.

15. The developer has obtained engineering approval to connect the subdivision to the existing public stormwater manhole located within the driveway of 32 Kohinoor Avenue (see Attachment B). The connecting pipe will cross under the shared driveway of 30 and 32 Kohinoor Avenue.

16. Staff propose that a 10-metre length pipe is constructed using a trenchless method, which involves drilling a small hole from 28 Kohinoor Avenue, then pushing the pipe underground through to the manhole located on 32 Kohinoor Avenue. This method would not involve digging up the shared driveway.

17. Minor excavation works would be undertaken around the outside of the manhole which would be fully reinstated upon completion of the works. The expected duration to carry out the work is two days.

18. The new pipe will be vested in Auckland Council as a public stormwater asset to be owned and maintained Healthy Waters, once it is connected to the stormwater network.

Objections received from landowners at 30 and 32 Kohinoor Avenue

19. The owners of 30 and 32 Kohinoor Avenue have refused to allow the developer to connect to the stormwater network via their properties. The developer applied to the council to provide facilitation services to help reach an agreement with the landowners.

20. Facilitation sessions commenced in March 2019, however no agreement was reached. The council then analysed the developer’s works (as detailed below) and determined that the works are necessary public works, and that they would undertake the works itself as a council project under the powers of the Local Government Act 2002. This enables public works to be undertaken on private land without the owner’s consent, provided the requirements of the Act are met.

21. The council issued a notice of their intention to construct the works to the affected landowners under section 181 of the Local Government Act 2002 on 18 April 2019.

22. Following the issue of this notice, the council has continued to communicate with the landowners, however it has not been possible to reach an agreement.

23. Pursuant to schedule 12 of the Local Government Act 2002, the landowners had until 18 May 2019 to formally object to the section181 notice. No such objection was received.

24. In August 2019, the council notified the landowners of its intention to commence the works. A formal objection to the works from the landowners was then received on 26 August 2019 (see Attachment E).

25. Healthy Waters staff elected to receive the late objection rather than proceeding with the works and, in accordance with the terms of schedule 12 of the Local Government Act, set an objection hearing for 28 November 2019.

Tātaritanga me ngā tohutohu

Analysis and advice

26. The council is empowered to construct works on private land that are necessary for stormwater drainage. When determining the best option to connect developments to the public stormwater system, the council looks at the available network connections in the surrounding area. This analysis takes into account the direction of stormwater flow and the land topography.

27. The council analysed three alternative alignments for connecting the development at 28 Kohinoor Avenue to the public stormwater system (see Attachment D).

28. These options were:

· option one: extending the public network from the manhole at 32 Kohinoor Avenue under the driveway of 30 Kohinoor Ave (recommended option)

· option two: extending the public network from House Park (council-owned land to the east of 28 Kohinoor Avenue)

· option three: extending the public network from 42 Kohinoor Avenue to 28 Kohinoor Avenue

· option four: do nothing - do not provide a stormwater connection for 28 Kohinoor Avenue (not shown in Attachment D).

The four options were analysed against relevant criteria as shown below in Table 1.

Table 1. Analysis of alignment options against various criteria

	Option one Extend under driveway of 30 and 32 Kohinoor Avenue (recommended)	Option two Extend from House Park	Option three Extend from 42 Kohinoor Avenue	Option four Do nothing	Significance of criteria
Number of affected properties	2	1	1	0	Low
Interference with existing infrastructure (water, wastewater and road networks)	None	High	High	None	Medium
Disruption to property owners	Minor	Medium	Major	Minor	High
Cost of works	$	$$$	$$$	$	Low
Route to existing stormwater network	Most direct 10m	Least direct 100m	Less direct 75m	N/A	Medium
Duplication of existing stormwater infrastructure	0%	20%	100%	0%	Medium
Compliance with Stormwater Code of Practice	Yes	Potential non-compliance	No	No	High

Key

Most negative

Moderately negative

Moderately positive

Most positive

Analysing options for stormwater management on Kohinoor Avenue

29. Option two would require an extensive amount of pipe work which is inefficient when there is an alternative option in close proximity. As the land is very flat, the pipe proposed in option two is unlikely to achieve the required fall in order to connect into the existing manhole in the park without the assistance of a pump. The Stormwater Code of Practice does not support pumping in this manner as it increases the risk of flooding and requires on-going maintenance.

30. Option three would duplicate the existing network that already serves properties 32-40 Kohinoor Avenue. Although in the road corridor (and not on private property), it would be an inefficient route given there is an alternative option in close proximity. The implementation of option three would also cause disruption to the entire neighbourhood due to the traffic management needed during the construction phase.

31. Option four (do nothing) involves the council walking away from the situation and leaving the developer to continue to negotiate with the owners. This option is not supported, as it means the developer is likely to pursue either options two or three. As described above, these options would mean the council inherits surplus stormwater infrastructure which it has to maintain as part of the public network, and do not comply with the Stormwater Code of Practice. It also increases the likelihood of 28 Kohinoor Avenue discharging to the kerb in lieu of a better solution and in contravention of its resource consent.

32. As demonstrated by the weightings set out in Table 1 above, option one is the preferred option for the following reasons:

· the route does not interfere with any existing services

· the location of the works does not affect any existing structures on the landowners’ properties, resulting in minimal disturbance

· the land proposed to be crossed is a driveway and not land that could be developed for housing or other structures

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

· the route does not duplicate existing stormwater infrastructure.

33. In addition to these factors, Healthy Waters engineers have determined that option one can be constructed using a trenchless method, which would have minimal impact on the driveway to 30 and 32 Kohinoor Avenue.

Negotiating with the landowners

34. Negotiations with the landowners have been ongoing since October 2018. Initially negotiations were held directly between the developer and the landowners, with the council becoming involved from March 2019 onwards.

35. The council has attempted to engage with the landowners to offer advice on the proposed works and broker an agreement. The council also attempted to arrange a mediation hearing between the parties before an independent commissioner to address the concerns raised in the landowner’s objection letter. However, the landowners did not respond to any correspondence sent by the council.

36. Attachment C shows the council’s response to the objection letter and the correspondence log.

Summary of objections received

37. Both landowners at 30 and 32 Kohinoor Avenue have submitted a copy of the same letter (see Attachment E). Their objections focus largely on the topics outlined in Table 2 below:

Table 2. Summary of objections

Objection points	Response from Healthy Waters
Lack of written consent from landowners	The council has complied with the procedures as set out in Schedule 12 of the Local Government Act where landowners refuse consent to stormwater drainage works. Written notice has been provided to the landowners describing the proposed works, accompanied by a plan. Landowners were provided with an opportunity to object, and a date was set to hear the objection.
Liability for costs The landowners were concerned that they would be liable for maintenance costs for the pipe. The pipe will be vested in Auckland Council as a public stormwater asset once it is constructed.	The council will be responsible for maintenance of that pipe and ensuring it has the required capacity to cope with the stormwater requirements of the area it serves.
Other stormwater management options available	See options analysis above. Staff have assessed the preferred option as being the most efficient alignment in terms of stormwater management.
Lack of transparency on building plans The landowners expressed concerns that they have not seen the building plans for 28 Kohinoor Avenue. They are also concerned about privacy and sunlight issues arising from the development.	These concerns have been considered through the development’s consenting process and are not grounds for objection in relation to the proposed stormwater works.
Impacts on the environment and future generations The landowners raise concerns that the proposed works do not take into account the social, economic, and cultural interests of people and communities, and the reasonably foreseeable needs of future generations.	Connecting new developments to the public stormwater system ensures that Auckland’s stormwater is managed in an efficient and effective way, improving public health and safety by reducing the risk of flooding and illegal discharges.
Resident safety and wellbeing The safety of children is identified as the primary concern of the landowners, with strangers on their private properties.	The works will be undertaken by warranted council contractors. The owners will be notified in advance of when the works will take place and will have an opportunity to raise any concerns they have regarding access, the presence of animals, children or vulnerable persons. Appropriate health and safety procedures will be put in place to ensure the works are undertaken in a safe manner. Works are expected to take up to two days to complete, and will be located on the driveway away from the houses, so disruption is expected to be minimal.
Harassment of landowners The landowners expressed a sense of being harassed and pressured into agreeing to the works.	The council had not been involved in discussions between the developer and the landowners prior to March 2019. All council contractors will follow established procedures when engaging with landowners, and will not enter the properties without prior notification. Landowners can raise any concerns regarding contractor interactions directly with Auckland Council’s call centre, and these will be investigated further.

Recommended stormwater management option

38. Staff recommend that construction of the proposed stormwater works proceed at 30 and 32 Kohinoor Avenue, as per option one in this report.

39. The works are necessary to enable development at 28 Kohinoor Avenue and to meet the council’s stormwater standards. Works are expected to take up to two days to complete, and staff will work with the landowners to ensure minimal disruption occurs. As described above, alternative alignments for the pipe were considered untenable due to non-compliance with the stormwater code of practice.

Tauākī whakaaweawe āhuarangi

Climate impact statement

40. One of the expected consequences of rising global temperatures is increased and more intense rainfall. Healthy Waters staff work with developers to ensure new developments are able to connect to the public stormwater network to ensure the efficient and effective management of stormwater in Auckland.

41. The proposed pipe has been designed to cater for the 10 per cent annual exceedance probability (the probability of a flood event occurring in any year), including allowance for climate change. This has the effect of making the network more resilient to storm events and reducing the likelihood of flooding of neighbouring properties

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

42. Watercare and Auckland Transport assets will not be impacted by the proposed works if option one is undertaken. Other options will require consultation with Auckland Transport and Watercare to determine the impact to existing wastewater infrastructure and road networks.

43. The pipe once constructed will be vested in the council and will form part of the public stormwater network to be maintained by Healthy Waters.

44. If the landowners object to the committee’s decision to support the works, Legal Services will support Healthy Waters staff in any court proceedings.

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

Local impacts and local board views

45. The Māngere-Ōtāhuhu Local Board has not been consulted on the proposed stormwater works, as the pipe will be constructed on private land. The landowners have advised that they have written to the board to notify them of the works, however staff have not been able to locate any direct correspondence with the board.

Tauākī whakaaweawe Māori

Māori impact statement

46. The developer has not consulted local iwi on the proposed stormwater works outlined in this report.

47. Council staff notified iwi representatives of the proposed project through Healthy Water’s monthly email of all active Healthy Waters projects. Iwi representatives were asked to signal whether they would like to be engaged on this project, however, no feedback has been received from iwi to date.

48. Improved water quality for Tāmaki Makaurau is a priority for mana whenua. The recommended option will contribute to a better functioning stormwater management system, reducing the impact of the development on water quality.

Ngā ritenga ā-pūtea

Financial implications

49. The recommended option is the most cost effective for the council, as it involves the shortest and most direct pipe alignment. If approved, the pipe will be constructed by the council, with costs of the works to be paid for by the developer upfront.

50. 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. As part of the works costs the developer will be required to supply to the council a bond to remain in place for two years following completion of the works. This will cover any potential claim by the landowners for injurious affection.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

51. Staff have undertaken a systematic risk assessment. Key risks and proposed mitigations relating to the endorsement of option one are shown in Table 3 below:

Table 3. Risks and mitigations arising from determination of the objection

Risk	Likelihood and consequence	Mitigation
Legal risk – Objectors argue that this is in fact a private pipe and Auckland Council ought to use section 460 of the Local Government Act 1974 instead of section 181 Local Government Act 2002.	Likelihood: Low Consequence: Medium	The pipe will be vested in the council once constructed and will form part of the public stormwater system which the council is responsible for maintaining. It is being built to the council’s standards for public stormwater infrastructure and will serve a wider catchment as the area develops further.
Financial risk – If the landowners appeal the Regulatory Committee’s decision, the council may become liable for the cost of defending a District Court case. The landowners could also seek injurious affection (if evidenced) through the Land Valuation Tribunal, arguing that the public works have reduced the value of their property.	Likelihood: Low Consequence: Medium	It seems unlikely an appeal would be brought. Even if so, the risk of the council losing on appeal is considered low, due to the works being considered necessary, and the section 181 process has been followed correctly. The potential for an injurious affection claim is considered low in this case for the following reasons: · the proposed pipe does not involve the taking of any land · the area affected by the works is a concrete driveway. The residential homes on 30 and 32 Kohinoor Avenue are sufficiently far enough from the works that it is extremely unlikely that they would be impacted · the proposed methodology will cause minimal damage to the driveway which will be reinstated upon completion of the works. Council engineers have determined that the risk of collapse or future damage from these works on this particular piece of land is low. If the landowners are unsuccessful, they will be liable to pay court costs.
Infrastructure risk - Low quality assets being vested to the council.	Likelihood: Low Consequence: Medium	The works will be undertaken by an approved council contractor who will have in place sufficient insurances to cover the risk of failure.

Ngā koringa ā-muri

Next steps

52. If the objection is upheld, and construction of the pipe does not proceed, the development at 28 Kohinoor Avenue will be unable to proceed until an alternative stormwater connection can be identified. As noted in the analysis above, none of the alternative options assessed are considered adequate.

53. If the objection is not upheld and construction of the pipe is endorsed, council staff will use their powers under the Local Government Act 2002 to deliver the stormwater works.

54. The objectors have 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. If no appeal is lodged, the council would look to proceed with the works early 2020.

Ngā tāpirihanga

Attachments

No.	Title	Page
a ⇩	Site plan - Kohinoor Avenue	21
b ⇩	Engineering plans	23
c ⇩	Correspondence log	27
d ⇩	Alternative options considered for stormwater management	29
e ⇩	Objection letters and hearing notifications	31

Ngā kaihaina

Signatories

Authors

Leigh sTeckler - Senior Commercial Negotiator, Healthy Waters

Shaun McAuley - Commercial Partnerships Team Leader, Healthy Waters

Authorisers

Craig Mcilroy – General Manager Healthy Waters

Barry Potter - Director Infrastructure and Environmental Services

Craig Hobbs - Director Regulatory Services

Regulatory Committee

28 November 2019

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

File No.: CP2019/19581

Te take mō te pūrongo

Purpose of the report

1. To consider the objection to the Construction of a Public Stormwater line through 133 & 135 Coronation Road, Hillcrest and 7 Nicholson Place, Hillcrest to serve 129 & 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. The regulatory committee of Council held a hearing on 11 July 2019 and the resolution approved these works.

11. The objector Jingsong (Teresa) Tang of 7 Nicholson Place notified Council that she did not receive the hearing notification. Section 460(2) of the Act requires Council to give an objecting owner an opportunity to be heard before a committee of the Council. Because Ms Tang had not been given that opportunity, Council’s legal counsel advised that the resolution of 11 July would not stand up to legal challenge, and if agreement could not be reached with Ms Tang then the matter would need to be referred for another hearing following proper compliance with notification requirements.

12. The objector has since reiterated two matters that have previously been addressed.

a) The proposed public extension would provide discharge connections for the adjoining properties.

b) The manhole would be located to avoid damage to the existing hedge and if any trees were damaged they would be replaced with similar trees.

13. 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) agree that resolution REG/2019/45 pertaining to Item 8: Objection to the Construction of a Public Stormwater line through 133 & 135 Coronation Road, Hillscrest and 7 Nicholson Place, Hillcrest from the 11 July 2019 meeting, be rescinded:

Resolution number REG/2019/45

MOVED by Cr W Walker, seconded by Deputy Chairperson BC Cashmore:

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

b) note that the owner of 7 Nicholson Place, Hillcrest has not provided consent for the drainage works and was given an opportunity to be heard by the Regulatory Committee but did not attend the hearing

c) determine that under section 460(1) of the Local Government Act 1974 that the

proposed stormwater connection route across 133 & 135 Coronation Road, Hillcrest and 7 Nicholson Place, Hillcrest to service 129 – 131 Coronation Road, Hillcrest is the only practical route as shown on MSC Consulting engineers drawings no. 38481 sheet C100 revision A for the following reasons:

i) the drain will rely on gravity and does not require a pump;

ii) all drainage work will comply with Auckland Council’s current code of practice;

iii) the drainage work will include replacing an existing manhole at 7 Nicholson place that does not meet the current code of practice and is in poor condition.

iv) the owners of 133 and 135 Coronation Road, Hillcrest have provided their consent for the drainage works.

v) the drain will provide capacity for other properties to connect into it in the future and connects to the existing drainage network which has sufficient capacity to take the additional stormwater flows of the applicant site and other properties.

vi) the applicant’s engineer and Council’s development engineer provided evidence that they considered alternative options and consider this is the only practical route for stormwater connection. No evidence was provided to the contrary.

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

c) 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 the MSC Consulting engineers drawings no.38481 sheet C100 revision, attachment C of the report.

Horopaki

Context

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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 the hearing, Thursday 28 November 2019, 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

23. 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.

24. 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.

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

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

27. 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.

28. 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.

29. 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.

Tauākī whakaaweawe āhuarangi

Climate impact statement

30. The extent of the works are of a localised minor nature that does not require climate change consideration.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

31. 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.

32. 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

33. 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

34. 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.

Ngā ritenga ā-pūtea

Financial implications

35. 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

36. 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

37. If the proposed works are approved by the committee, installation of the public stormwater reticulation will be undertaken by Council.

Ngā tāpirihanga

Attachments

No.	Title	Page
a ⇩	Engineering Approval SW 14 August 2017	47
b ⇩	SW Drainage Plan 3 December 2018	61
c ⇩	MSC Stormwater Network Capacity Report	63
d ⇩	Dave Serjeant mediation report	87
e ⇩	Pertinent Communication Nov 2019	95
f ⇩	Hearing Notification 28 February 2019	145
g ⇩	section 460 Local Government Act	149

Ngā kaihaina

Signatories

Author	Cedric Daniel – Senior Development Engineer, Regulatory Engineering
Authoriser	Craig Hobbs - Director Regulatory Services

Chairperson	Cr Linda Cooper, JP
Deputy Chairperson	Cr Josephine Bartley
Members	Cr Dr Cathy Casey
	Cr Fa’anana Efeso Collins
	Cr Shane Henderson
	Cr Daniel Newman, JP
	Cr Sharon Stewart, QSM
	IMSB Chair David Taipari
	IMSB Member Glenn Wilcox
	Cr Paul Young

Ex officio:	Mayor Phil Goff
	Deputy Mayor Bill Cashmore