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

01 September 2020

Property Maintenance and Nuisance Bylaw: 2020 Review Findings

File No.: CP2020/08020

Te take mō te pūrongo

Purpose of the report

1. To agree that the review of the Te Ture ā-rohe Tiaki Rawa me Ngā Mahi Whakaporearea 2015 / Property Maintenance and Nuisance Bylaw 2015 is complete and to request an options report that responds to the findings.

Whakarāpopototanga matua

Executive summary

2. Staff have prepared a findings report to enable the Regulatory Committee to complete the review of the Property Maintenance and Nuisance Bylaw 2015.

3. The review of the Bylaw must be completed by 24 September 2020, or it will expire on 24 September 2022, potentially leaving a regulatory gap.

4. Key findings from the review are:

· a bylaw is still the most appropriate way to manage specific activities and behaviour on private property that may cause a public health risk or nuisance (including the risk of Legionnaires’ disease from industrial cooling towers)

· there are limitations to the Bylaw’s effectiveness, it cannot address visual amenity and resolving safety and nuisance problems can be difficult and expensive

· the current Bylaw approach is appropriate but could be improved, by redrafting parts of the Bylaw to make it easier to understand and enforce

· the current Bylaw does not give rise to any unjustified Bill of Rights implications.

5. Staff recommend that the committee endorse the findings report to complete the statutory review and request an options report. This will allow consideration and proposal of statutory options to confirm, amend, replace or revoke the Bylaw.

6. There is a low risk that some people may express concern about suggested Bylaw improvements or engagement to date. This risk is mitigated by future public consultation on any proposed changes to the Bylaw.

7. If approved, staff will develop options that respond to the findings in this report in the second quarter of the 21/22 financial year.

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a) endorse the property maintenance and nuisance findings in Attachment A of the agenda report.

b) agree that the statutory review of the Property Maintenance and Nuisance Bylaw 2015, is complete including that:

i) a bylaw is still the most appropriate way to manage specific activities and behaviour on private property that may cause a public health risk or public nuisance

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

iii) the current bylaw structure and wording could be improved.

c) request that staff as delegated by the Chief Executive prepare an options report in response to the findings in Attachment A of the agenda report.

Horopaki

Context

The Property Maintenance and Nuisance Bylaw seeks to protect public health and prevent

nuisance

8. Te Kaunihera o Tāmaki Makaurau Te Ture ā-rohe Tiaki Rawa me Ngā Mahi Whakaporearea 2015 / Auckland Council Property Maintenance and Nuisance Bylaw 2015 was adopted by the Governing Body on 24 September 2015 (GB/2015/104).

9. The Bylaw regulates matters related to private property maintenance that can create public health risks or nuisances by:

· regulating overgrown vegetation, deposited materials, and abandoned buildings

· regulating the feeding of wild animals

· requiring registration, maintenance and testing of industrial cooling tower water systems (industrial cooling towers) to reduce the risk of Legionnaires’ disease.

10. The Bylaw is aligned with the following strategic directions in the Auckland Plan:

Outcome

Direction / Focus area

Belonging and Participation

Direction 2: Improve health and wellbeing for all Aucklanders by reducing harm and disparities in opportunities.

Alignment: The Bylaw reduces activities that could cause public health risks.

Homes and Places

Direction 1: Develop a quality compact urban form to accommodate Auckland’s growth.

Focus area 5: Create urban places for the future.

Alignment: The Bylaw aims to minimise nuisance and reduce public health risks in increasingly intensified residential areas.

11. The Bylaw is only one of several central and local government regulations which govern the impact of activities and behaviours on private property, for example the:

· Property Law Act 2007 regulates vegetation on private property that can cause a danger or obstruct views

· Litter Act 1979 regulates litter on private property and allows for its removal based on visual amenity

· Summary of Offences Act 1981 regulates antisocial behaviour by people entering abandoned buildings on private property

· Building Act 2004 regulates mechanical cooling tower systems associated with air conditioning or ventilation.

Statutory review of Bylaw required

12. A statutory review of the Bylaw must be completed by 24 September 2020 determining whether the current Bylaw is:

· still necessary

· well drafted

· meets the requirements of the New Zealand Bill of Rights Act 1990.^{^[1]}

13. If a findings review is not completed on time, the Bylaw will expire on 24 September 2022 and council must (if a bylaw is still necessary) make a new bylaw to avoid a regulatory gap.^{^[2]}

14. Following the findings review, the council can consider statutory options to confirm, amend, replace or revoke the Bylaw using a public consultative process.^{^[3]}

15. Between August 2019 and July 2020 staff engaged with a range of stakeholders and carried out research to develop the findings report in Attachment A, including:

· face-to-face interviews with council compliance officers and building consents staff

· face-to-face interviews with Auckland Regional Public Health Service staff

· a People’s Panel survey asking Aucklanders about their recent experiences with property maintenance related nuisance

· a survey of owners of industrial cooling towers

· analysis of property maintenance related complaints to council

· assessment of other councils’ approaches to property maintenance.

Tātaritanga me ngā tohutohu

Analysis and advice

Growing pest numbers may be driving complaints, but visual amenity a key concern

16. Complaints to council relating to overgrown vegetation, deposited materials, abandoned buildings and feeding of wild animals have increased:

· from 685 in 2016 to a projected 1,255 in 2019

· 3,573 complaints have been received in the four years following the Bylaw’s adoption.

17. Based on both complaints data and responses to the People’s Panel survey:

· overgrown vegetation is the most common problem

· the impact of ‘visual nuisance’ was most frequently cited by survey respondents

· health risks (from pests and animal excrement) was the next highest impact identified in the survey

· 26 percent of all survey respondents experienced overgrown vegetation

· 88 per cent of all complaints received are about the presence of vermin and pests.

18. This survey response and complaints reflect a growing pest problem in Auckland and visual amenity as key concerns.

19. Health risks relating to pest animals are of greater concern to council than visual nuisance. The council does not have a mandate to regulate visual amenity on private property through a bylaw.

Most Aucklanders don’t contact council about nuisances

20. The survey found that on average only one in five people who experienced a nuisance as a result of one of the regulated problems reported it to council. Reasons for this may include:

· low awareness of what the Bylaw regulates

· preference for resolving issues privately

· lacking confidence that council can solve the problem.

Ongoing property maintenance problems require regulation, but the Bylaw has limitations

21. A bylaw is still the most appropriate way to manage problems arising from poor private property maintenance.

22. The Bylaw provides a necessary legal basis for the council to address the problems that are not regulated by other legislation.

23. Compliance staff do investigate public complaints that suggest a breach has occurred – particularly where there is a serious risk to public health and safety or where nuisances are severe or persistent – and consider the Bylaw an essential tool.

24. If the Bylaw did not exist, there would be a regulatory gap for some of the problems the Bylaw addresses and lesser penalties.

25. Staff advise that responsibility for addressing fire hazards arising from property maintenance issues were transferred to Fire and Emergency New Zealand in 2017.

Ongoing risk of Legionnaires’ disease and regulation to protect health still required

26. The Building Act 2004 does not require cooling tower water systems associated with industrial processes (only mechanical ventilation and air conditioning systems) to be registered and monitored for legionella bacteria.

27. The Bylaw sets requirements for industrial systems to avoid a regulatory gap.

28. To prevent the risk of Legionnaires’ disease, which can be fatal, the Bylaw requires owners of industrial cooling tower water systems:

· to register their systems annually

· regularly test, clean and maintain their water tanks.

29. Staff noted a decrease in industrial cooling systems registered with the council from around 400 systems in 2015 to around 120 in 2020. Reasons for this are unclear, although system decommissioning and administrative changes are likely to be key contributing factors.

30. There have been no complaints about industrial cooling towers and no enforcement action has been taken.

31. There have been no outbreaks of Legionnaires’ disease since the Bylaw was adopted in 2015.

32. The Bylaw is currently the only regulation that applies to industrial cooling towers. The testing standards are aligned with the Building Act 2004 and considered best practice.

33. The risk of Legionnaires’ disease has not materially changed since the Bylaw was adopted in 2015. Staff consider industrial cooling towers still require regulation to help prevent the risk of Legionnaires’ disease.

The current Bylaw approach is needed, appropriate but could be improved

34. The current Bylaw is appropriate but could be improved. Suggested improvements will be considered as part of an options report, and include:

· clarifying the definition of nuisance to make it easier to understand and enforce, including that the council cannot regulate visual amenity

· whether the feeding of wild animals may be more appropriately regulated through the Animal Management Bylaw 2015

· clarifying registration and regulatory requirements for industrial cooling towers

· reviewing the frequency of registration, testing and cleaning of industrial cooling towers

· making the Bylaw easier to read and understand by applying the council’s best practice drafting standards.

Many nuisances are low-risk and addressing them can be difficult and expensive

35. There are limitations to the Bylaw’s effectiveness to manage these issues:

· there are low levels of public understanding of what constitutes a breach, meaning many problems experienced by Aucklanders cannot be addressed by the Bylaw

· compliance staff use the council’s risk-based graduated enforcement approach to triage requests for service; these problems create mainly low-level, low-risk nuisances and therefore complaints are typically lower priority

· it can be difficult to track down owners of vacant property, and it is too costly for the council to remediate issues directly

· council is unable to issue infringement fines – this would require legislative change – meaning only notices can be served, followed by prosecution

· prosecution is time-consuming and costly, and gathering sufficient evidence for court action can be a challenge.

The current Bylaw does not give rise to any unjustified Bill of Rights implications

36. The Bylaw could potentially limit rights under the New Zealand Bill of Rights Act 1990. Any limitation, however, is justified. The Bylaw addresses matters related to its purpose, is regulated proportionally, and no more than necessary.

37. For example, requiring the removal of deposited materials or vegetation could be construed as a limitation of freedom of expression. However, this limitation is justified to prevent a risk to public health and avoid causing nuisance.

Staff recommend the committee endorse the findings, complete the statutory review and request an options report

38. The findings report (Attachment A) establishes that there are still problems arising from private property maintenance in Auckland, and that the Bylaw is still necessary but could be improved.

39. Staff recommend that the committee endorse the findings report, complete the statutory review and request an options report. The options report will evaluate and propose statutory options to confirm, amend, replace or revoke the Bylaw.

Tauākī whakaaweawe āhuarangi

Climate impact statement

40. The Bylaw does not create any climate impacts, but climate change may affect the problems regulated by the Bylaw. In particular, higher average temperatures over the last decade may have given pest species an advantage over native species and worsened Auckland’s pest problem, and this trend is expected to continue in future. Warmer temperatures also exacerbate the growth of legionella bacteria.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

41. The Bylaw impacts the operations of council teams involved in property maintenance. Relevant staff provided feedback to the review and suggested improvements to the definitions and scope. These have been incorporated into the findings.

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

Local impacts and local board views

42. This Bylaw has no impact on local governance because it regulates activities on private property and received low levels of public feedback in the last review.

43. Local boards will have an opportunity to provide their views on any proposed changes to the Bylaw following public feedback.

Tauākī whakaaweawe Māori

Māori impact statement

44. A previous literature review of key documents and two hui with Māori found that specific property maintenance problems and regulatory responses have no specific impacts on Māori and are not of particular interest or significance.

45. Staff will proactively engage with mana whenua and mataawaka during any future public consultation to ensure Māori are able to provide their views on any proposed changes to the Bylaw.

Ngā ritenga ā-pūtea

Financial implications

46. There are no financial implications to council from a decision to complete the statutory review. The options report will be completed within current budgets.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

47. There is a low risk that some people may express concern about the suggested Bylaw improvements or stakeholder engagement to date as contained in this report. This risk is mitigated by future public consultation on any proposed changes to the Bylaw.

Ngā koringa ā-muri

Next steps

48. If approved, staff will prepare an options report and proposal for the committee in the second quarter of the 21/22 financial year. This delay is due to current staff levels and other work programme priorities.

Ngā tāpirihanga

Attachments

No.	Title	Page
a ⇩	Property Maintenance and Nuisance Bylaw: 2020 Review Findings Report	15

Ngā kaihaina

Signatories

Author

Caroline Stephens - Graduate Policy Advisor

Authorisers

Kataraina Maki – General Manager - Community & Social Policy

Craig Hobbs - Director Regulatory Services

Regulatory Committee

01 September 2020

Proposal to amend the Alcohol Control Bylaw 2014

File No.: CP2020/11452

Te take mō te pūrongo

Purpose of the report

1. To recommend the Governing Body adopt a proposal to amend the Te Ture a Rohe Whakararata Waipiro / Alcohol Control Bylaw for public consultation and appoint a bylaw panel.

Whakarāpopototanga matua

Executive summary

2. The Regulatory Committee requested an amended Alcohol Control Bylaw 2014 in May 2019 (REG/2019/28).

3. Staff seek a recommendation that the Governing Body adopt the attached Statement of Proposal containing an amended Bylaw for public consultation.

4. The amended Bylaw continues to enable alcohol bans in public places to reduce crime and disorder caused or made worse by alcohol consumed there. It complies with statutory requirements, is appropriate and is not inconsistent with key legislation.

5. The main amendment is the inclusion of new temporary alcohol bans for major events at Mount Smart Stadium, Western Springs Stadium, Eden Park and Auckland Domain.

6. Local board and Auckland Domain Committee views were sought in July and August 2020. All those with a view supported public consultation on the Statement of Proposal.

7. There are risks that the proposal does not reflect the views of the public and that a COVID-19 outbreak prevents in-person public consultation. These risks are partly mitigated by the opportunity for public feedback, online or phone-based ‘Have Your Say’ events and bylaw panel deliberations.

8. Adoption of the Statement of Proposal will start the statutory process to amend the Bylaw including public consultation scheduled for October 2020. A bylaw panel will consider any public feedback, deliberate, and make recommendations to the Governing Body in March 2021. A final decision is expected to be made in April 2021.

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a) note that this committee completed the review of the Alcohol Control Bylaw 2014 in April 2019 and determined that a bylaw about the consumption or possession of alcohol in public places is still the most appropriate way to address crime or disorder in certain public places caused or made worse by alcohol consumed there.

b) recommend the Governing Body adopt the statement of proposal in Attachment A of this agenda report for public consultation, and confirm that the proposed amended Alcohol Control Bylaw 2014:

i) is the most appropriate form of bylaw

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

c) recommend the Governing Body forward to the Independent Māori Statutory Board the statement of proposal in clause b) for their advice.

d) recommend the Governing Body forward to local boards this agenda report and attachments for their information.

e) appoint a chair and two bylaw panel members selected from the Governing Body and the Independent Māori Statutory Board to attend ‘Have Your Say’ events and to deliberate and make recommendations to the Governing Body on public feedback to the statement of proposal in clause b).

f) delegate authority to the Regulatory Committee chairperson to make replacement appointments to the bylaw panel if a panel member is unavailable.

g) 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 clause b) to correct errors, omissions or to reflect decisions made by the Regulatory Committee or the Governing Body.

Horopaki

Context

The Alcohol Control Bylaw enables council to make alcohol bans in public places

9. Te Ture a Rohe Whakararata Waipiro 2014 / Alcohol Control Bylaw 2014 (Bylaw) aims to reduce crime or disorder in certain public places caused or made worse by alcohol consumed there.

10. The Bylaw achieves this by providing a framework that enables alcohol bans to be made by resolution of the relevant delegated authorities – the Regulatory Committee, local boards and the Auckland Domain Committee.

11. Alcohol bans are enforced by the New Zealand Police.

The Regulatory Committee decided to amend the Alcohol Control Bylaw

12. The Regulatory Committee requested staff commence the process to amend the Bylaw on 9 May 2019 (REG/2019/28). This decision followed completion of a statutory bylaw review under the Local Government Act 2002^{^[4]} and consideration of the review findings and four options.

13. Council must use the special consultative procedure to amend the Bylaw, including to:^{:^[5]}

· determine that the amended bylaw meets legislative criteria

· adopt a statement of proposal, including the proposed amended bylaw, for public consultation

· decide on any bylaw amendments after having considered public feedback.

Tātaritanga me ngā tohutohu

Analysis and advice

Bylaw amendments make new event-based alcohol bans and improve understanding

14. The Statement of Proposal (Attachment A) implements the committee’s decision to amend the Bylaw to improve the status quo. The proposal amends the Bylaw to make:

· new event-based temporary alcohol bans for major events at regional venues^{^[6]}

· the Bylaw easier to read and understand.

Summary of proposed Bylaw amendments

Proposed changes

Reason for change

· Make new event-based temporary alcohol bans for all major events at Mount Smart Stadium, Western Springs Stadium, Eden Park and Auckland Domain in the Bylaw.:

· The new event-based temporary alcohol bans will replace existing event-based temporary alcohol bans made by resolution^{^[7]}for Mount Smart Stadium, Eden Park and Auckland Domain for ‘Christmas in the Park’ and the Lantern Festival. Changes to these existing resolutions would:

o for Mount Smart Stadium extend the ban to apply to all major events, not just concerts

o for Eden Park extend the ban to include Eden Park stadium, and two fan trails if they are activated as part of an event^{^[8]}

o for Auckland Domain extend the ban to all major events (not just the Lantern Festival) and extend the times of the ban to start and finish one hour earlier (between 6am and 6am instead of 7am and 7am).

The ban for the Auckland Domain ‘Christmas in the Park’ event would remain unchanged.

· Use a related information note to replace clauses about alcohol ban signage and about legislative decision-making criteria.

· Clarify exceptions to alcohol bans for licensed premises and the transport of alcohol, council’s ability to make temporary alcohol bans and Bylaw wording.

New event-based temporary alcohol bans made in the Bylaw:

· more easily enables a preventative approach to alcohol-related crime or disorder at or near event venues used for major events

· removes time and cost to process individual requests for event-based temporary alcohol bans where:

o the event venue has been and will continue to be used for major events

o a ban has been used in the past for major events at the event venue and Police and event organisers indicate a ban is needed in the future.

· creates more consistent event-based temporary alcohol ban times and application.

Replacing some clauses with related information notes and providing clarifications:

· removes provisions that are useful as extra information but are not required in the Bylaw because they are addressed in legislation or elsewhere outside of the Bylaw

· provides rules that are easier to read and understand.

The proposal complies with statutory requirements and best practice drafting

15. The amended Bylaw has been prepared in accordance with statutory requirements as:

· it has no implications under, and is not inconsistent with, the New Zealand Bill of Rights Act 1990

· it enables a preventative approach to alcohol-related crime or disorder^{^[9]}

· it will be easier to read and understand which will make compliance easier

· it includes event-based temporary alcohol bans for major events at certain venues which are a reasonable limitation on people’s rights and freedoms because the bans only apply temporarily to a limited area for large scale events

· implementation relating to making any new alcohol ban requires any ban to be justified, appropriate and proportionate under the Local Government Act 2002.

Staff recommend the committee commence the process to amend the Bylaw

16. Staff seek the Regulatory Committee recommend to the Governing Body to adopt the attached Statement of Proposal containing an amended Bylaw for public consultation.

17. The Committee can appoint a bylaw panel to attend ‘Have Your Say’ events as appropriate, deliberate and make recommendations to the Governing Body on public feedback to the proposal.

18. 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.

Tauākī whakaaweawe āhuarangi

Climate impact statement

19. There are no implications for climate change arising from this decision.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

20. The proposal impacts the operation of units across the council group involved in events, processing alcohol ban requests and alcohol ban signage. Those units are aware of the impacts of the proposal and their implementation role.

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

Local impacts and local board views

21. Staff sought the views of all local boards and the Auckland Domain Committee on a draft proposal in July and August 2020. The Bylaw is important as they have the delegated authority to make local alcohol bans.^{^[10]}

22. Nineteen local boards provided views, all in support of public consultation. A summary of local board and domain committee views, staff responses and any changes made to the proposal are in Attachment B.

23. Four local boards suggested changes including to improve understanding, enable local board input on proposed major event-based bans, add a local crate day and a North Harbour Stadium event-based ban, and to amend the area of proposed major event-based bans.

24. Staff updated the draft proposal to improve understanding and amend the area of proposed major event-based bans. Other suggested changes are not recommended as local board input already occurs in relation to major events, Police and event organisers do not consider a North Harbour Stadium event-based ban to be necessary, and Police have indicated a local crate day ban is unlikely to be required after December 2020.

Tauākī whakaaweawe Māori

Māori impact statement

25. The Bylaw has significance for Māori as users and kaitiaki / guardians of public space. Māori are also over-represented in alcohol-related hospital visits, the criminal justice system and as victims of crime.

26. Māori health advocacy organisations, Te Puni Kōkiri and the Maunga Authority support the use of alcohol bans as a tool to reduce alcohol-related harm.

27. Mana whenua and mataawaka will have the opportunity to give feedback on the proposal during public consultation.

Ngā ritenga ā-pūtea

Financial implications

28. There are no financial implications arising from this decision as public notification and engagement costs are provided within existing budgets.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

29. There are risks that the proposal does not reflect the views of the public and that a COVID-19 outbreak prevents in-person public consultation. These risks are partly mitigated by the opportunity for public feedback, online or phone-based ‘Have Your Say’ events and bylaw panel deliberations.

Ngā koringa ā-muri

Next steps

Ngā tāpirihanga

Attachments

No.	Title	Page
a ⇩	Statement of proposal to amend the Alcohol Control Bylaw	87
b ⇩	Views of local boards and the Auckland Domain Committee	139

Ngā kaihaina

Signatories

Author

Elizabeth Osborne - Policy Analyst

Authorisers

Kataraina Maki – General Manager - Community & Social Policy

Craig Hobbs - Director Regulatory Services

Regulatory Committee

01 September 2020

Proposal to amend the Cemeteries and Crematoria Bylaw 2014

File No.: CP2020/11453

Te take mō te pūrongo

Purpose of the report

1. To recommend the Governing Body adopt a proposal to amend the Te Ture ā-Rohe mo ngā Wāhi Tapu me ngā Whare Tahu Tupāpaku / Cemeteries and Crematoria Bylaw for public consultation and appoint a bylaw panel.

Whakarāpopototanga matua

Executive summary

2. The Regulatory Committee requested an amended Cemeteries and Crematoria Bylaw 2014 in May 2019 (REG/2019/27).

3. Staff seek a recommendation that the Governing Body adopt the attached Statement of Proposal containing an amended Bylaw for public consultation.

4. The main proposed change is to clarify the Bylaw wording to make it easier to read, understand and comply with. It complies with statutory requirements, is appropriate and is not inconsistent with key legislation.

5. The amended Bylaw continues to enable council to make a separate cemeteries and crematoria code of practice to manage activities at council cemeteries and crematoria.

6. The Aotea / Great Barrier Local Board governance is impacted, and their view was sought and support gained for the Statement of Proposal.

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a) note that this committee determined in April 2019 that a bylaw about council cemeteries and crematoria is still the most appropriate way to manage activities that may cause public safety hazards, damage to property, and unnecessary distress to mourners or relatives.

b) recommend the Governing Body adopt the statement of proposal in Attachment A of this agenda report for public consultation, and confirm that the proposed amended Cemeteries and Crematoria Bylaw 2014:

i) is the most appropriate form of bylaw

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

c) recommend the Governing Body forward to the Independent Māori Statutory Board the proposal in clause b) for their advice.

d) recommend the Governing Body forward to local boards this agenda report and attachment for their information.

f) delegate authority to the Regulatory Committee chairperson to make replacement appointments to the bylaw panel if a panel member is unavailable.

g) 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 clause b) to correct errors, omissions or to reflect decisions made by the Regulatory Committee or the Governing Body.

Horopaki

Context

Committee decided in May 2019 to amend the Cemeteries and Crematoria Bylaw

9. Te Ture ā-Rohe mo ngā Wāhi Tapu me ngā Whare Tahu Tupāpaku 2014 / Cemeteries and Crematoria Bylaw 2014 (Bylaw) manages activities at council cemeteries and crematoria.

10. This approach helps to minimise public safety risks, distress, nuisance, damage to property and heritage, and interference with ground maintenance and operational activities.

11. The Bylaw achieves this by providing a framework that enables council to make rules in a separate Cemeteries and Crematoria Code of Practice (Code).

12. The Regulatory Committee requested staff commence the process to amend the Bylaw on 9 May 2019 (REG/2019/27). This decision followed completion of a statutory bylaw review under the Local Government Act 2002^{^[11]} and consideration of the review findings and options.

13. Council must use the special consultative procedure to amend the Bylaw, including to:^{^[12]}

· determine that the amended bylaw meets legislative criteria

· adopt a statement of proposal, including the proposed amended bylaw, for public consultation

· decide on any bylaw amendments after consideration of public feedback.

Tātaritanga me ngā tohutohu

Analysis and advice

The Bylaw amendments clarify wording and make it easier to understand

14. The Statement of Proposal (Attachment A) implements the committee’s decision to amend the Bylaw to clarify its wording to make it easier to read, understand and comply with.

15. The amended Bylaw has been prepared in accordance with statutory requirements. It:

· is a more appropriate form of bylaw because it uses a structure and words that are easier to read and understand, and make compliance easier

· has no implications under, and is not inconsistent with, the New Zealand Bill of Rights Act 1990.^{^[13]}

Tauākī whakaaweawe āhuarangi

Climate impact statement

16. There are no implications for climate change arising from this decision.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

17. The proposal impacts the operation of units across the council group involved in cemeteries, crematoria and heritage. Those units are aware of the impacts of the proposal and their implementation role.

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

Local impacts and local board views

18. In preparing the proposal, staff sought the views of the Aotea / Great Barrier Local Board in July 2020 on a draft version because the Bylaw impacts local governance.^{^[14]}

19. The local board supported the draft proposal for public consultation (GBI/2020/66).

Tauākī whakaaweawe Māori

Māori impact statement

20. The Bylaw has significance for Māori as urupā are wāhi tapu.

21. Mana whenua, and mataawaka kaumatua and kuia raised concerns about the need for more land for mana whenua and council urupā, use of adornments, and ash scattering (particularly in waterways).

22. These concerns are not within the scope of the proposal:

· land for urupā is addressed through the Auckland Unitary Plan

· adornments will be addressed through amendments to the Code

· ash scattering outside of council cemeteries and crematoria is being addressed through non-regulatory approaches (GB/2019/22). Advice is being sought from the Mana Whenua Kaitiaki Forum on mana whenua’s level of interest in discussing scattering of ashes with other cultures.

23. Mana whenua and mataawaka will have the opportunity to give feedback on the proposal during public consultation.

Ngā ritenga ā-pūtea

Financial implications

24. There are no financial implications arising from this decision as public notification and engagement costs are provided within existing budgets.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

25. There are risks that the proposal does not reflect the views of the public and that a COVID-19 outbreak prevents in-person public consultation. These risks are partly mitigated by the opportunity for public feedback, online or phone-based ‘Have Your Say’ events and bylaw panel deliberations.

Ngā koringa ā-muri

Next steps

Ngā tāpirihanga

Attachments

No.	Title	Page
a ⇩	Statement of proposal to amend the Cemeteries and Crematoria Bylaw 2014	147

Ngā kaihaina

Signatories

Author

Elizabeth Osborne - Policy Analyst

Authorisers

Kataraina Maki – General Manager - Community & Social Policy

Craig Hobbs - Director Regulatory Services

Regulatory Committee

01 September 2020

Request by the Lion Foundation 2008 Ltd that the Committee grant an exception to the council’s Class 4 Gambling (Pokie) Venue Policy

File No.: CP2020/11746

Te take mō te pūrongo

Purpose of the report

1. To seek a decision on a request by the Lion Foundation 2008 Ltd that the Committee grant an exception to the council’s Class 4 Gambling (Pokie) Venue Policy.

Whakarāpopototanga matua

Executive summary

2. On 15 June 2017 the Committee confirmed the Auckland Council’s Class 4 Gambling (Pokie) Venue Policy. In making this decision the Committee confirmed the following:

· A ‘sinking lid’ policy on the number of venues, i.e. no new venues

· A ‘sinking lid’ policy on the number of gaming machines

· No relocations of class 4 venues.

3. On 21 July 2020 the Lion Foundation 2008 Ltd applied to the Auckland Council, and the Regulatory Committee specifically, for territorial consent under section 98(b) of the Gambling Act 2003 to establish a new class 4 venue at the premises of Ha’pai Vue Bar, Unit H, 24 Dunrobin Place, Pakuranga (letter attached). The premises would operate a maximum of nine gaming machines, which is the maximum number permitted for new venues by the Gambling Act 2003.

4. Lion Foundation 2008 Ltd previously held a class 4 gambling venue licence to operate nine gaming machines at the premises but surrendered that licence on 14 October 2019.

5. Lion Foundation 2008 Ltd have said that they intended to subsequently restore gambling at the venue and was entitled to do so if a new class 4 gambling venue licence application was submitted to the Department of Internal Affairs (DIA) by 13 April 2020.

6. Lion Foundation 2008 Ltd state in their letter to the Committee that the Alert Level 4 lockdown that occurred on 25 March 2020 prevented them from completing the licence application and submitting it to the DIA by 13 April 2020. They have not elaborated further.

7. The Class 4 Gambling (Pokie) Venue Policy is clear in not allowing the establishment of any new class 4 venues. The Policy also does not make any allowance for a departure from the Policy.

8. Lion Foundation 2008 Ltd asks the Committee, to make an exception to the Policy and grant territorial consent to them to establish a new class 4 gambling venue at the premises of Unit H, 24 Dunrobin Place, Pakuranga. In their letter of 21 July 2020, the Lion Foundation 2008 Ltd state:

“It is acknowledged that Auckland Council has a sinking lid policy and in normal circumstances, a gambling venue consent application would not be granted. It is, however, possible for a consent to be granted that is contrary to the requirements of the policy in appropriate circumstances (such as timing issues caused by the Covid-19 lockdown), by using section 80 of the Local Government Act 2002. All that is required is that Council identifies and notes the inconsistency, and sets out the reasons for granting the consent.”

9. Section 80 of the Local Government Act 2002 stipulates that:

“(1) If decision of a local authority is significantly inconsistent with … any policy adopted by the local authority … the local authority must when making the decision clearly identify:

(a) The inconsistency; and

(b) The reasons for the inconsistency; and

(c) Any intention of the local authority to amend the policy … to accommodate the decision.”

10. This means that if the Committee, contrary to the Policy, grants the Lion Foundation 2008 Ltd territorial consent to establish a new class 4 gambling venue it must at the same time state how that decision is inconsistent with the Policy, the reasons for the inconsistency and then whether or not they intend to make any amendment to the Policy to accommodate the decision.

11. Should the Committee determine to grant an exception to the Policy then two considerations are triggered. The Committee may conclude that the circumstances that led to their decision are unique to this situation and an exemption is granted on a one-off basis. Alternatively, the Committee may conclude the circumstances described are not particularly unusual and therefore amendments to the Policy may subsequently be required. The triggers will depend on the decision of the Committee and the reasons for it.

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a) agree that its response to the application by the Lion Foundation 2008 Ltd is to

EITHER

decline to grant consent for the Lion Foundation 2008 Ltd to establish a new class 4 gambling venue at Unit H, 24 Dunrobin Place, Pakuranga.

grant consent for the Lion Foundation 2008 Ltd to establish a new class 4 gambling venue at Unit H, 24 Dunrobin Place, Pakuranga.

In doing so the Committee identifies that:

(i) The decision is inconsistent with the Auckland Council Class 4 Gambling (Pokie) Venue Policy which prohibits the establishment of any new class 4 gambling venues.

(ii) The reason(s) for making this inconsistent decision is/are - to be added by the Committee.

(iii) The Committee does / does not intend to amend the Class 4 Gambling (Pokie) Venue Policy to accommodate the decision.

Horopaki

Context

12. Lion Foundation 2008 Ltd previously held a class 4 gambling venue licence to operate nine gaming machines at the premises but surrendered that licence on 14 October 2020.

13. Lion Foundation 2008 Ltd have said that they intended to subsequently restore gambling at the venue and were entitled to do so if a new class 4 gambling venue licence application was submitted to the Department of Internal Affairs (DIA) by 13 April 2020.

14. The Council’s Alcohol Licensing Unit advise that the premises were bought and sold twice during 2019 and operated as a Tavern under temporary authority until 14 January 2020. At that time the latest purchaser closed the business.

15. The underlying alcohol licensee had originally applied to renew the alcohol licence in August 2019 with the intention of selling the premises but subsequently withdrew the alcohol licence renewal in July this year after the prospective purchaser left the premises earlier this year. The premises do not hold an alcohol licence and is not known to be trading.

16. Lion Foundation 2008 Ltd state in their letter to the Committee that the Alert Level 4 lockdown that occurred on 25 March 2020 prevented them from completing their class 4 gambling venue licence application and submitting it to the DIA by 13 April 2020. Lion Foundation have been asked to elaborate further and have been asked, “What specifically was it about the lockdown that prevented Lion completing and submitting the application to the DIA?” In reply Lion Foundation have stated:

“The venue in question was in the middle of a change in ownership when the lockdown occurred. The new owners did not have any prior gaming experience.

The Department of Internal Affairs (and The Lion Foundation) has very high expectations regarding key person suitability and harm minimisation. The Lion Foundation representative, Mark Wallace, wished to meet with the new owners face to face in order to:

· Get to know the new owners and to obtain confidence that the new owners’ business methods and culture accorded with Lion Foundation’s high expectations;

· Go over in detail the harm minimisation policy and harm minimisation expectations;

· Go through the venue agreement, in particular the obligations included in the venue agreement regarding harm minimisation and regulatory compliance;

· Carefully explain the obligations of being appointed a formal venue manager (the responsibility for supervising the gambling and ensuring the bankings are done on time); and

· Assist the venue key persons complete their personal information forms. It is the Lion Foundation’s preference for the form and the various declarations to be explained to the venue key persons to ensure that full disclosure is made.

A physical venue inspection was required in order to confirm the floorplan layout. The licence application requires a The Lion Foundation representative to certify that the floorplan is true and correct.

It is also a requirement for the venue staff to undertake harm minimisation training prior to the venue being licensed. The initial training is always undertaken face to face to ensure maximum understanding and engagement.

Face to face meetings were prohibited under both level 3 and 4 (prohibited from 25 March 2020 to 12 May 2020).

The face to face meetings could only occur and staff training could only occur once Auckland returned to level 2 on 12 May 2020 (after the 13 April 2020 deadline).

17. An email has also been received from the Landlord for the venue Brendon McIlroy which says:

“Further to the Letter dated 21 July from Jarrod True from True Legal who act for The Lion Foundation 2018. The Elizabeth Trust is the owner of the above premises. We have had multiple Purchase agreements for the sale of Ha’apai Veu Bar at our premises fail because of the Timing of Covid-19 Restrictions for the Hospitality Industry. Had it not been for the affects of Covid-19 we would have had the Gaming Licence change to a New purchaser of the business within the time frame required by The Department of Internal Affairs. We have had 65% of our Rental Income affected by the situation and we are having to pay 65% of the outgoings that would normally be paid by our Tenant which is a financial burden for us. My Mother Betty McIlroy who is a Trustee of The Elizabeth Trust is 90 Years old and relays on the income generated from the building. Please could you help us to retain the Gambling Licence for the premises.”

18. In response to that email the following questions were put to the Landlord:

“Could you set out for the Committee exactly what the state of any gambling machine licence application was on 25 March 2020 and how the lockdown prevented that gaming machine licence application from being submitted to the Department of Internal Affairs.

Could you also confirm that the premises does not currently hold an alcohol licence and tell us when it was last open for business. Also could you give further details of how 65% of your Rental Income has been affected by the Lion Foundation 2008 Ltd not having a class 4 gambling venue licence for your premises.”

19. Mr Mcllroy has replied:

“I can confirm that the Venue was in the process of changing owners when the lockdown occurred. My understanding is that the premises does not currently hold a liquor licence. My diary notes indicate that the prior owners ceased trading in late January 2020.

Our rental income has been affected by the business being closed. The prior business owners ceased paying Rent and Outgoings in early April 2020 (this equates to approximately 65% of our income from the building).”

20. In support of a decision allowing consent for a new venue Lion Foundation 2008 Ltd has amongst other things submitted:

· “Council is asked to take into account the timing issues that the Covid-19 lockdown caused,

· and grant the consent using section 80 of the Local Government Act, noting the following reasons for granting the consent:

a. The Lion Foundation 2008 Ltd has a history of operating 9 machines at the venue. No new venue will be created by the granting of the consent;

b. Without the disruption caused by Covid-19, a new licence application would have been submitted to the Department within the six-month period, avoiding the need to obtain a consent from Council. A consent is now only required due to the unprecedented and unexpected nationwide lockdown that was mandated due to a global pandemic; and

c. The granting of the consent will enable the venue to be restored, generating local employment, and enabling local community grants to be made from the gaming machine proceeds.”

21. Lion Foundation 2008 Ltd says that it has been common for councils to use section 80 of the Local Government Act 2002 to grant gambling venue consents and has attached a list of examples to its letter.

22. Lion Foundation 2008 Ltd also points out that a previous Regulatory Committee used section 80 of the Local Government Act 2002 on 9 November 2017 and passed a resolution permitting the East Coast Bays RSA to relocate its gaming machines to a nearby venue after a fire.

Tātaritanga me ngā tohutohu

Analysis and advice

The Policy - Legislative framework

23. The Gambling Act 2003 requires Auckland Council to have a gambling venue policy in place that specifies:

· whether or not class 4 gambling venues may be established within Auckland, and if so

· where they can be located.

The policy may also specify restrictions on the maximum number of gaming machines that can be operated at a class 4 venue.

Under the Gambling Act 2003, to operate class 4 gambling, operators such as the Lion Foundation 2008 Ltd, are required to hold two licences:

· a class 4 operator’s licence, and

· a class 4 venue licence for each venue that hosts its machines.

24. Under the Gambling (Harm Reduction) Amendment Act 2013, policies reviewed after 2013 must consider a relocation policy. A relocation policy sets out if and when Auckland Council will grant consent for a new venue within its district to replace an existing venue within the district.

Auckland Council’s Class 4 Gambling (Pokie) Venue Policy

25. Auckland Council’s Class 4 Gambling (Pokie) Venue Policy, as confirmed by the Regulatory Committee in June 2017 [REG/2017/50], seeks to:

· control the growth of gambling in Auckland

· minimise the harm caused by gambling in Auckland.

In making this decision, the Regulatory Committee confirmed the following:

· a ‘sinking lid’ policy on the number of venues

· a ‘sinking lid’ policy on the number of gaming machines

· no relocations of class 4 venues

· limited provisions for mergers of club venues.

Policy Intent

26. The rationale and policy intent are to effectively manage the social impacts of gambling and reduce harm by overall reducing the number of gambling venues and machines in Auckland.

Implications of decision-making

27. New Venue or relocation: Rule 1 of the policy is clear that there is no provision for the establishment of new class 4 gambling venues or for a current venue to relocate. This applies to both club and non-club venues. Any decision to approve a new venue would be a departure from the policy.

Section 80 of the Local Government Act 2002

28. If a decision is made that departs from the Class 4 Gambling (Pokie) Venue Policy and its ‘sinking lid’ policy position, then the requirements of section 80 of the LGA need to be satisfied. The Committee will have to clearly identify the inconsistency with the pokie venue policy, the reasons for the inconsistency and any intention to amend the existing policy.

29. If, while considering this issue, decision-makers determine that they no longer agree with the ‘sinking lid’ and/or to the no relocation policy positions, then they should also consider whether a more coherent means of addressing this issue would be to amend the Class 4 Gambling (Pokie) Venue Policy.

30. To amend the existing policy, staff generally need to:

· identify changes to the class 4 gambling venue policy that would improve the council’s ability to manage the impact of gambling

· draft a new policy and statement of proposal to be approved for public notification by the Governing Body

· use the special consultative procedure to consult with the public on the proposed changes

· report back to the Governing body for a final decision on the amended policy.

31. The council Gambling Venue Policy 2013 was reviewed in 2016 and retained with no changes. As a statutory review is required every three years, another review of the policy is due (June 2020). This review has been delayed due to COVID- 19 disruption. Policy staff advise that have nearly completed this review and the review findings and consideration of options will be reported to the Committee by November 2020.

Tauākī whakaaweawe āhuarangi

Climate impact statement

32. There is no climate impact from this report.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

33. There are no council group impacts from this report.

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

Local impacts and local board views

34. Although not consulted for this particular item local boards were consulted in relation to the Class 4 Gambling (Pokie) Venue Policy itself and those consultations were reported to the Committee at its 15 June 2017 deliberations.

Tauākī whakaaweawe Māori

Māori impact statement

35. The Māori impact statement provided to the Committee on 15 June 2017 when considering the Policy was:

· “Reducing the problem gambling prevalence rates for Māori is a goal highlighted in the Auckland Plan. High deprivation areas throughout Auckland have the highest concentration of gambling venues and pokie machines (Auckland Plan, Directive 1.7)

· Māori are more likely than other ethnicities to engage in gambling activities associated with problem gambling. The New Zealand 2012 National Gambling Study (2014) estimated that problem gambling prevalence rate is the highest (2.3 per cent) for Māori compared to 1.6 per cent for Pacific island communities and 0.7 per cent for Asian communities

· Māori communities often bear additional costs as a result of problem gambling, including erosion of whanau values, the negligence of care giving responsibilities, and the loss of cultural capital.

· The disproportionate prevalence of Māori in problem gambling is linked to higher levels of deprivation. The Ministry of Health (2009) established that people living in the most deprived areas are more likely to become problem gamblers and are five times more likely to become problem gamblers than those living in the least deprived communities.

· During the review, staff conducted key informant interviews with Māori health providers to ensure Māori views were incorporated into the findings.”

Ngā ritenga ā-pūtea

Financial implications

36. In the event that a revision of the policy was preferred, this process has not been budgeted. It would take approximately six months.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

37. There is a risk that if consents by the Committee are granted contrary to the Policy, the Policy will be undermined.

Ngā koringa ā-muri

Next steps

38. Should the Committee determine to grant an exception to the Policy then two considerations are triggered. The Committee may conclude that the circumstances that led to their decision are unique to this situation and an exemption is granted on a one-off basis. Alternatively, the Committee may conclude the circumstances described are not particularly unusual and therefore amendments to the Policy may subsequently be required. The triggers will depend on the decision of the Committee and the reasons for it.

39. To amend the existing policy, staff generally need to:

· identify changes to the class 4 gambling venue policy that would improve the council’s ability to manage the impact of gambling

· draft a new policy and statement of proposal to be approved for public notification by the Governing Body

· use the special consultative procedure to consult with the public on the proposed changes

· report back to the Governing body for a final decision on the amended policy.

40. The council Gambling Venue Policy 2013 was reviewed in 2016 and retained with no changes. As a statutory review is required every three years, another review of the policy is due (June 2020). This review has been delayed due to COVID- 19 disruption. Policy staff advise that have nearly completed this review and the review findings and consideration of options will be reported to the Committee by November 2020.

Ngā tāpirihanga

Attachments

No.	Title	Page
a ⇨	Ha'apai Veu Bar TA Consent Application (Under Separate Cover)

Ngā kaihaina

Signatories

Author

Rob Abbott - Principal Specialist Alcohol Licensing

Authorisers

Peter Knight – Manager Alcohol Licensing

James Hassall – General Manager Licensing

Craig Hobbs - Director Regulatory Services

No.	Title	Page
a ⇩	Current Resource Consent Appeals as at 1 September 2020	195

No.	Title	Page
a ⇩	Regulatory Committee Forward Work Programme	207

Regulatory Committee

01 September 2020

Kōmiti Whakahaere ā-Ture / Regulatory Committee
Forward Work Programme 2020

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

The full terms of reference can be found here.

Area of work and Lead Department	Reason for work	Committee role (decision and/or direction)	Expected timeframes Highlight the month(s) this is expected to come to committee in 2020
Area of work and Lead Department	Reason for work	Committee role (decision and/or direction)	Jan	Feb	Mar	Apr	May	Jun	Jul	Aug	Sep	Oct	Nov	Dec
Alcohol Licensing Licensing & Regulatory Compliance	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 30 June 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
Animal Management Licensing & Regulatory Compliance	Report on Animal Management activities for the year ending August/Sept 2020 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 2019/2020 report to the Secretary of Local Government
Boarding Houses Inspection Licensing and Compliance Services	Update on the Auckland proactive boarding houses inspections programme. Increase inspections from one to a minimum of three per year.	Update: memo to Regulatory Committee and the Parks, Arts, Community and Events Committee
Earthquake Prone, Dangerous & Insanitary Buildings Policy 2011 -2016 Review Building Consents	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: on the progress made in implementing Auckland Council’s regulatory obligations with regard to earthquake-prone buildings within its jurisdiction. July 2020 decision							ü
BYLAWS
Alcohol Control Bylaw review Community & Social Policy	This Bylaw provides the structure for creating alcohol bans. Individual boards use it to make decisions about local bans. Council has a statutory obligation to review this Bylaw under the Local Government Act 2002.	Recommend a Statement of Proposal to the Governing Body to amend bylaw. Appoint Bylaw Panel to make recommendations to the Governing Body on the proposal after hearing and deliberating on public feedback and local board input. Development of proposal to amend bylaw to commence in February 2020. April 2019 decision May 2019 decision
Animal management Bylaw Review Community and Social Policy	This Bylaw promotes responsible animal ownership, including minimising impact on neighbours, the public and preventing damage.	Decision on whether a bylaw still needed and whether any changes should be made and to confirm, amend, replace or revoke the bylaw (findings and options reports). March 2020 decision.			ü
Bylaw Review 2020-22 initiation Community and Social Policy	Initiation of new bylaw reviews. Includes ‘Local Board Involvement in Regional Policy, Plans and Bylaws - Agreed Principles and Processes 2019’ Council has a statutory obligation to periodically review its bylaws.	Decision on the initiation of bylaw reviews that must be completed by October 2022. Report will for each bylaw: · set out scope · legislative constraints/enablers (if any) · relevance to LBs · proposed process (including LB involvement) · key timeframes · public consultation approach whether a joint working group for early bylaw/policy development is proposed and initiate appointment process if necessary. February 2020 decision		ü
Cemeteries Bylaw Review Community and Social Policy	This Bylaw and code of practice protects health and safety and minimises potential offensive behaviour. Council has a statutory obligation to review this Bylaw under the Local Government Act 2002.	Recommend a Statement of Proposal to the Governing Body to amend bylaw. Appoint Bylaw Panel to make recommendations to the Governing Body on the proposal after hearing and deliberating on public feedback and local board input. Development of proposal to amend bylaw to commence in February 2020. April 2019 decision May 2019 decision.
Freedom Camping Community and Social Policy	This Bylaw replaces legacy requirements to manage freedom camping in vehicles, under the Freedom Camping Act. The legacy bylaws expiry on 29 October 2022.	Decision on options to progress a council approach for a Statement of Proposal on freedom camping in vehicles. Governing Body October 2020										GB
Gambling Policy Reviews Community and Social Policy	The Gambling Act 2003 and the Racing Act 2003 (the Acts) regulate gambling in New Zealand. The Acts require the policies to be reviewed every three years. Auckland Council (Council) first adopted these policies in 2013. Council reviewed them in 2017, found they were generally effective and retained both with no changes The next reviews are du 15 June 2020	Decision: start of the Class 4 Gambling (pokie) Venue Policy and the Racing Board (TAB) Venue Policy reviews in 2020 March 2020 decision.			ü
Navigation Safety Bylaw Review	This Bylaw sets out the rules for all vessels and people using Auckland's waters to ensure their safety. Council has a statutory obligation to review this Bylaw under the Local Government Act 2002.	Decision on whether a bylaw still needed and whether any changes should be made and to confirm, amend, replace or revoke the bylaw (findings and options reports). March 2020 decision . June 2020 decision			ü			ü
Outdoor Fire Safety Bylaw Review Community and Social Policy	This Bylaw applies to a range of outdoor fire activities, including outdoor cooking and heating fires, sky lanterns, traditional cooking fires, open air fires and incinerator fires. This Bylaw expires on 18 December 2021 and must (if necessary) be replaced to avoid a regulatory gap.	Decision on whether a bylaw is still needed and whether any changes should be made and to confirm, amend, replace or revoke the bylaw (findings and options reports).
Property Maintenance Nuisance Bylaw Review Community and Social Policy	This Bylaw requires private property to be maintained well enough that doesn't create a nuisance or risk health and safety. Council has a statutory obligation to review this Bylaw under the Local Government Act 2002.	Decision on whether a bylaw still needed.
Signage Bylaw Review Community and Social Policy	This is a joint bylaw with Auckland Transport that regulates promotional signs to ensure public safety and prevent nuisance from poorly maintained or located signage.	Decision on whether a bylaw still needed and whether any changes should be made and to confirm, amend, replace or revoke the bylaw (findings and options reports). June 2020 decision						ü
Stormwater Bylaw Healthy Waters	The primary purpose of the Bylaw is to regulate land drainage including to protect, manage and maintain an efficient and effective public stormwater network, as well as the ensure the maintenance and operation of private stormwater systems.	Decision on whether a bylaw is the most appropriate regulatory tool to protect Auckland’s stormwater networks July 2020 decision							ü
Trading and Events Bylaw Review Community and Social Policy	This Bylaw regulates businesses and events that use public spaces to make sure everyone can use them fairly and safely. This Bylaw expires on 22 February 2022 and must (if necessary) be replaced to avoid a regulatory gap.	Decision on whether a bylaw is still needed and whether any changes should be made and to confirm, amend, replace or revoke the bylaw (findings and options reports).
Traffic Bylaw Review Community and Social Policy	This Bylaw regulates the use of vehicles on council-controlled land that is not part of the Auckland transport system, like parks and beaches. This Bylaw expires on 25 June 2022 and must (if necessary) be replaced to avoid a regulatory gap.	Decision on whether a bylaw still needed. Project scoping to commence December 2019.
Water Supply and Wastewater Network Bylaw 2015 Watercare	This bylaw protects Auckland’s water sources, water supply and wastewater networks from damage, misuse and interference. This Bylaw will expire on 25 June 2022 and council must (if a bylaw is still necessary) make a new bylaw to avoid a regulatory gap	Decision on whether a bylaw is still need and whether any changes should be made and to confirm, amend, replace or revoke the bylaw (findings and options reports). Due to COVID-19 the findings report went the Emergency Committee in May May 2020 Decision June 2020 Decision					EC	ü

Resource Consents Appeal Update Resource Consents	To provide oversight of the appeals received to resource consent decisions.	Information purposes Monthly updates		ü	ü	Cancelled	cancelled	ü	ü	No meeting
The Regulatory Committee Policy Democracy Services	The Policy incorporates the operational policy and sub delegations for the decision-making responsibilities that lie within the areas of the committee’s responsibilities. Review District Licensing Committee (DLC) and Independent Resource Management Act (RMA) commissioner pools.	Decision: adopt the updated Regulatory Committee Policy July 2020 decision Decision: approve the appointment of the District Licensing Committee and the selection process and appointments of independent resource management commissioners for 2021 to 2024. April 2020, due to COVID19 appointment of District Licensing Committee went go to Emergency Committee DLC Commissioners - November 2019 decision. Emergency Committee April 2020 decision RMA Commissioners – June 2020 decision				EC	Cancelled		ü
The Regulatory Services Directorate Director Regulatory Services	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 · transformation activity update · building consents and control · resource consents and regulatory engineering	For information only: 6 monthly updates

Completed

Lead Department	Area of work	Committee role (decision and/or direction)	Decision
Food Bylaw Review Community and Social Policy	This Bylaw requires food businesses registered with the council to display a food safety grade certificate. This Bylaw expires on 22 May 2020 and must (if necessary) be replaced to avoid a regulatory gap.	Bylaw Panel appointed (REG/2019/39) Councillors Newman (Chair), Mulholland and Young and IMSB member Wilcox) to deliberate on public feedback and local board input and make recommendations to the Governing Body. Progress to date: Decision that a bylaw is still needed, that the current bylaw should be replaced, and proposal adopted in July 2019 (REG/2019/39 and GB/2019/70). Due COVID-19 the decision went to the Governing Body 30 April 2020 decision.	Resolution number GB/2020/36 MOVED by Cr D Newman, seconded by Cr T Mulholland: That the Governing Body: a) acknowledge the impact of the COVID-19 pandemic on food businesses, and their employees. b) approve the Bylaw Panel recommendations on the proposed new Food Safety Information Bylaw 2020 in Attachment A and Attachment B of the agenda report. c) confirm that the Food Safety Information Bylaw 2020 in Attachment C of the agenda report: i) is the most appropriate way to 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. d) adopt the Food Safety Information Bylaw 2020 in Attachment C of the agenda report. e) approve the distribution of this agenda report and associated minutes to local boards for their information. f) delegate authority through the Chief Executive to staff responsible for bylaws to make any amendments to the Bylaw in Attachment C of the agenda report to correct errors or omissions. CARRIED ON VOICES

Regulatory Committee

01 September 2020

Objection to stormwater connection to public manhole located within 73 Park Rise Campbells Bay

File No.: CP2020/10467

Te take mō te pūrongo

Purpose of the report

1. To consider the objection to the Construction of a Public Stormwater line to connect to the public manhole located within the shared accessway serving 73 Park Rise Campbells Bay to serve 77 Park Rise Campbells Bay.

Whakarāpopototanga matua

Executive summary

2. A subdivision resource consent SC3024256 was approved on 4 July 2016 to undertake a two lot subdivision. (Attachment A)

3. The current dwelling stormwater does not comply with Council’s Stormwater Code of Practice as it discharges to ground and via sheet flow onto the neighbouring property. In order to comply, the stormwater should discharge to the public reticulation which is located within adjoining access way serving 73 Park Rise Campbells Bay.

4. The site is located in a SMAF1 control area and requires on-site detention.

5. The shared access way for 73 Park Rise serves 14 landowners (Attachment H)

6. The proposed development consent conditions require the installation of a stormwater management system to discharge to public reticulation.

7. The applicant initially engaged Airey Consultants to liaise with the various landowners to obtain landowner approval and were not successful. (Attachment D)

8. The Airey Consultants “Infrastructure Report” reference 12127-01 dated April 2016 considered three route options to connect to the only available public reticulation.

9. Council’s senior development engineer (Cedric Daniel) then met with certain landowner’s and identified the need for further consultation. (Attachment E)

10. The pertinent matters identified were that landowners were concerned with downstream discharge capacity and potential flooding and disruption during the works.

11. Following consultation and a site with Healthy Waters senior engineer Paul Jones the landowners were assured that the downstream capacity was adequate for the additional discharge and advised that the Aireys Consultants “Infrastructure Report” included a downstream capacity assessment confirming adequate capacity.

12. The most prominent objecting landowners were Jens Richter (73B) and James Leddy (73C) the landowners closest to the proposed works.

13. The applicant then engaged Peter Lowe of Landworks Consulting Ltd to consult with the various landowners.

14. Peter Lowe also undertook a downstream capacity assessment to confirm adequate capacity. (Attachment C)

15. Peter Lowe identified the most practical and least intrusive route option allowing continuous access for all the landowners was to discharge to the nearest manhole located with the shared access way for 73 Park Rise.

16. Council then issued Engineering Approval ENG60060119 under letter dated 27 August 2019 taking into account matters raised during consultation which required that additional affected landowners be consulted.

17. Following extensive consultation (including face to face meetings and letters) Peter Lowe notified Council that he was unable to gain approval from landowners and submitted his consultation report with email of 30 June 2019. (Attachment F)

18. Council then engaged Dave Serjeant an accredited Independent Hearings Commissioner to mediate approval of the stormwater connection. (Attachment G)

19. During consultation the landowners notified Council that the public line was blocked and buried which prompted Healthy Waters to engage a contractor to undertake maintenance works to clear the line of obstructions. (Attachment E)

20. Dave Serjeant also provided confirmation that downstream capacity assessments had confirmed adequate system capacity.

21. Following several months face to face and on-site meeting and communication Dave Serjeant confirmed that he was unable to obtain landowner approval.

22. Dave Serjeant presented his mediation report dated 10 February 2020 confirming that he was no able to mediate approval for the required stormwater connection. (Attachment G)

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a) hear and determine the objections by the owners of 73 Park Rise Campbells Bay, 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 73 Park Rise, is the only practical route as shown on LANDWORKS CONSULTING Ltd engineers drawings P18-59 sheet 400 revision A and sheet 401 revision A.

Horopaki

Context

23. The owner of 77 Park Rise is Kexin Wang (“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 and connection to an existing Council public manhole located within the shared access way for 73 Park Rise as being the only practical route and available connection to serve 77 Park Rise.

24. A locational aerial of the relevant properties and plans of the precise route is shown on LANDWORKS CONSULTING Ltd engineers’ drawings P18-59 sheet 400 revision A and sheet 401 revision A. (Attachment B)

25. The Applicant lodged an Engineering Approval application (reference ENG60312220) on 4 December 2017 to undertake the work to install the stormwater line. This has since been approved on 27 August 2019 2019 subject to landowner approval of various landowners at 73 Park Rise. (Attachment B) Landowners of 73 Park Rise have not approved the connection.

26. The ‘Applicant’ and its consultants have consulted with the property’s owners in person, in writing and by phone over a period of 36 months to date to obtain their consent to undertake the work. A copy of relevant pertinent communication demonstrates that the property owners have been fully informed of the extent of works and this is provided as (Attachment D & F). The written communication has been sent to the addresses listed for the respective owners as well as email communication. The ‘Applicant’ has not been able to obtain consent.

27. The Council’s senior development engineer has also consulted with these landowners and has not been able to facilitate approval. (Attachment E)

28. Attachment G also confirms the attempts by Mr Dave Serjeant, council’s independent facilitator engaged to seek a resolution. However, these attempts were also unsuccessful.

29. Under report of 10 February 2020 the mediator proposes that the matter be set down for a hearing.

30. The Council is satisfied that the owners (‘Applicant’) of 77 Park Rise, have met its expectations of seeking all endeavors to obtain an agreement to install the stormwater line.

31. The approved stormwater reticulation provides for stormwater connection for 77 Park Rise which is a significant improvement on the current situation as this site currently discharges onto 73B Park Rise the property of Jens Richter Joanna Victoria Broadhead & John David Rust.

32. Details of landowners is provided under Attachment H

33. Copies of S460 LGA 1974 are provide under Attachment I

Tātaritanga me ngā tohutohu

Analysis and advice

34. Currently the site at 77 Park Rise stormwater discharges to ground via sheet-flow onto 73B Park Rise.

35. The proposed stormwater discharge connection will provide for discharge connection from 77 Park Rise to the public reticulation system and will provide a significant improvement of stormwater management in the immediate vicinity.

36. The existing public stormwater line traversing 73 Park Rise and the associated downstream reticulation has the capacity to receive discharge from the proposed development as confirmed from separate independent sources.

37. The proposed direct connection to the existing manhole located within the shared access way for properties at 73 Park Rise is in accordance with engineering best practice, is the shortest, least intrusive route and access to all the properties will be fully maintained throughout the duration of the works which are expected to be completed within a maximum of two days.

Tauākī whakaaweawe āhuarangi

Climate impact statement

38. The extent of the works is 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

39. 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.

40. 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

41. 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 the various landowners at 73 Park Rise.

Tauākī whakaaweawe Māori

Māori impact statement

42. Under section 460 of the Act, Iwi are not considered a relevant affected party unless they are landowners 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

43. All costs for this process and hearing are to be met by the owner of 77 Park Rise Campbells Bay.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

44. The proposed reticulation will improve the upstream stormwater management and reduce sheet flow discharged impact on downstream property at 73A Park Rise.

Ngā koringa ā-muri

Next steps

45. 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 ⇨	Resource Consent SC30224256 (Under Separate Cover)
b ⇨	Engineering Approval ENG60060119 (Under Separate Cover)
c ⇨	Engineering Documents (Under Separate Cover)
d ⇨	Aireys Consultants Ltd - Consultation (Under Separate Cover)
e ⇨	Auckland Council Communication (Under Separate Cover)
f ⇨	Landworks Consultants - Consultation (Under Separate Cover)
g ⇨	Mediation - Mediator Report (Under Separate Cover)
h ⇨	Landowner Details - Landowners consulted (Under Separate Cover)
i ⇨	s460 LGA 1974 (Under Separate Cover)

Ngā kaihaina

Signatories

Author

Cedric Daniel - Senior Development Engineer

Authorisers

Hock Lee - Principal Specialist Alcohol Licensing

Craig Hobbs - Director Regulatory Services

[1] Section 160(1) and (2), Local Government Act 2002.

[2] Section 160(A), Local Government Act 2002

[3] Section 160(3), Local Government Act 2002.

[4] See Local Government Act 2002, s158.

[5] See Local Government Act 2002, s83, 83AA, 86, 155, 156, 160(3) and Auckland Council Governing Body Terms of Reference (GB/2016/237).

[6] In Council’s Events Policy, major events have a regional, national and international profile.

[7] MT/2017/144 (Mt Smart); AE/2015/119 (Eden Park); RBC/2015/41 and WTM/2016/110 (Christmas in the Park); ADC/2017/43 (Lantern Festival).

[8] There are two Eden Park Fan Trails designed for fans to walk to Eden Park. One starts at Ponsonby Road (activated on ‘match days’) and one starts from the bottom of Queen Street (last used during the 2011 Rugby World Cup).

[9] Section 147A of the Local Government Act 2002.

[10] GB/2014/121 for local boards and GB/2016/237 for the Auckland Domain Committee.

[11] See Local Government Act 2002, s158.

[12] See Local Government Act 2002, s83, 83AA, 86, 155, 156, 160(3) and Auckland Council Governing Body Terms of Reference (GB/2016/237).

[13] Limitations to freedoms of expression, manifestation of religion and belief, and of minorities to enjoy their culture and practice their religion are minor and justified to meet the Bylaw’s objective.

[14] The Aotea / Great Barrier Local Board has delegated authority over open cemeteries in its local board area under Te Tahua Taungahuru Te Mahere Taungahuru 2018 – 2028, The 10-year Budget Long-Term Plan 2018 – 2028.

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
	Member Glenn Wilcox
	Cr Paul Young

Ex-officio	Deputy Mayor Cr Bill Cashmore
	Mayor Hon Phil Goff, CNZM, JP

Author	Maea Petherick - Kaitohutohu Mana Whakahaere Matua / Senior Governance Advisor
Authorisers	Craig Hobbs - Director Regulatory Services