Terms of Reference
Those powers
which cannot legally be delegated:
(a) the
power to make a rate
(b) the
power to make a bylaw
(c) the
power to borrow money, or purchase or dispose of assets, other than in
accordance with the Long-Term Plan
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power to adopt a long-term plan, annual plan, or annual report
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power to adopt a remuneration and employment policy
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of a draft bylaw prior to consultation
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agreement and appointments to committees
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resulting changes to CCOs
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Governing Body
25 March 2021
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Advice
on next steps for a Freedom Camping in Vehicles Bylaw
File No.: CP2020/04232
Te take mō te
pūrongo
Purpose of the report
1. To
seek a decision on an option for developing a new statement of proposal for a bylaw
to manage freedom camping in vehicles.
Whakarāpopototanga matua
Executive summary
2. The
Freedom Camping Act 2011 sets a permissive national policy to enable freedom camping
on public land (see Attachment A). This does not overrule other enactments,
including a default prohibition on camping on land held under the Reserves Act
1977.
Draft
Freedom Camping in Vehicles Bylaw developed then set aside in August 2019
3. In
2018 a draft Freedom Camping Act 2011 bylaw was developed, and in 2019 public
consultation, local board engagement and deliberations were held by a Freedom
Camping in Vehicles Bylaw Panel (the Bylaw Panel).
4. In
August 2019 the Governing Body resolved to set aside the draft bylaw and Bylaw
Panel’s recommendations, and instead requested advice on ten possible
elements of a new statement of proposal for a Freedom Camping Act 2011 bylaw (GB/2019/82).
Some
new elements proposed by Governing Body not viable or require amendment
5. Staff
have analysed these elements and advise that although some would be
straightforward to include in a new statement of proposal, others are not
viable within available resources or would create legal risk. Privileged legal
advice relating to this report has already been provided to the Governing Body.
6. Using
a Freedom Camping Act 2011 bylaw to prohibit freedom camping on all residential
reserves and on most urban and suburban roads through a general rule would be
particularly problematic.
7. To
comply with the legislation, thousands of new area assessments would be
required to implement these elements. This is not feasible prior to the expiry
of the current bylaw, which would create a regulatory gap. Even if assessed, many
areas may not meet the statutory criteria for protection.
More
than one legislative lever can be used to achieve inferred broader policy
intent
8. Staff
have inferred that the broader policy intent behind the Governing Body’s
August 2019 resolutions includes protecting the environmental and recreational
values of reserves and balancing competing demands on public space.
9. The
Governing Body can use more than one legislative lever to achieve these broader
goals. It must ensure, however, that its policy intent in using a particular
Act to manage public land closely aligns with the legislative intent of that
Act:
· the
Freedom Camping Act 2011 requires freedom camping to be enabled by default, and
controlled only in areas that meet statutory criteria for protection
· the
Reserves Act 1977 prohibits freedom camping by default, to protect the
environmental and recreational values of reserves.
10. To
move to a new statement of proposal the council must clarify its policy intent
for managing freedom camping in vehicles and consider options for meeting that
intent.
11. Staff have
had to amend the elements the Governing Body proposed for inclusion in a new
Freedom Camping Act 2011 bylaw to ensure that they would comply with the
Freedom Camping Act 2011 and be practicable to implement. This package of
amended elements has been assessed in the report as Option one.
Reserves
could be excluded from bylaw scope and default prohibition retained
12. Staff have
identified an alternative approach which would deliver the broader policy
intent more simply and transparently: using more than one legislative lever to
manage freedom camping in vehicles on public land.
13. Reserves
would continue to be protected using the Reserves Act 1977 and excluded from
the scope of a Freedom Camping Act 2011 bylaw. This approach is assessed as
Option two.
14. A
third option is that the Governing Body revisit the Bylaw Panel’s
recommendations. This option has been discounted however, as it would enable
freedom camping at 82 reserves, which would not deliver the broader policy
intent. In many respects Option one is similar to the Bylaw Panel’s
recommendations, but with fewer restricted areas.
15. This report
assesses two options:
· Option
one: Freedom Camping Act 2011 bylaw (amended elements from August 2019
Governing Body resolutions)
Ö would
control freedom camping in vehicles on any public land that met the statutory
criteria for protection through a Freedom Camping Act 2011 bylaw
Ö could
include some residential reserves, roads and other areas put forward in public
and elected member submissions
Ö could
potentially include a general rule.
· Option
two: Freedom Camping Act 2011 bylaw (excluding
reserves)
Ö would
reduce the scope of Freedom Camping Act 2011 bylaw to exclude reserves and
retain default camping prohibition under the Reserves Act 1977
Ö would
control freedom camping in vehicles on land held under the Local Government Act
2002 that met the statutory criteria for protection
Ö could
potentially include a general rule.
16. The main
difference between the options is the use of either a Freedom Camping Act 2011
bylaw (Option one) or the Reserves Act 1977 (Option two) to prohibit freedom
camping on reserves.
Staff
recommend Option two (excluding reserves) as it is simpler and reduces risk
17. By removing
reserves from the scope of the bylaw at the outset, Option two would likely
achieve a similar or better outcome compared with Option one but would be
easier to communicate, implement and administer.
18. Option one
would provide only the three restricted areas suggested by the public or
elected members once residential reserves were removed. Option two would
include the 21 restricted areas previously assessed and recommended by the
Bylaw Panel remaining once all reserves were removed.
19. Freedom
camping could legally occur on roads under either option, except where a
prohibition or restriction applied.
20. Additional
restricted areas could be created, including on roads, if a restrictive general
rule was included in a statement of proposal under either option. However, the
cumulative impact of prohibitions and restrictions, including any general rule,
will need to be considered in more depth at the next stage.
21. Although
Option two would provide more restricted areas, there is a risk that neither
option would adequately address issues with under-supply of desirable freedom
camping areas, potentially worsening harms from overcrowding and illegal
camping.
22. This is
partly mitigated by the government funding currently provided for the
council’s compliance activities, although that funding is not guaranteed
in future years.
23. Staff
recommend a new statement of proposal for a Freedom Camping Act 2011 bylaw is
developed based on Option two: Freedom Camping Act 2011 bylaw
(excluding reserves).
24. This option
is simpler, clearer, presents less risk and transparently aligns the Governing
Body’s broader policy intent with the legislative intent of the relevant
Acts.
Next
step: advice on potential general rule for inclusion in new statement of
proposal
25. Following a
decision on the preferred option, staff will begin work on a detailed options
paper on possible settings for a general rule and recommend a joint political
working group be appointed to consider general rule options.
26. Staff will
also begin work on a new statement of proposal for consultation in late 2021.
Limited new area assessments can be undertaken to implement either option if
they are required.
27. To avoid
uncertainty and risk of a regulatory gap, staff also recommend that the
Governing Body amend resolution GB/2015/112 to clarify that the expiry date for
the Freedom Camping Bylaw 2015 will be 29 October 2022, as shown in Attachment
C.
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Ngā tūtohunga
Recommendation/s
That the Governing Body:
a) confirm
the specific policy intent and operational objectives for a Freedom Camping
Act 2011 bylaw, within the context of a broader policy intent and operational
objectives that includes the protection of reserves, outlined in the table at
paragraph 81.
b) agree
that the preferred option for progressing freedom camping regulation is
Option two: Freedom Camping Act 2011 bylaw (excluding reserves), to:
i) make
a bylaw under the Freedom Camping Act 2011 to control freedom camping on land
held under the Local Government Act 2002
ii) retain
the existing prohibition on freedom camping on land held under the Reserves
Act 1977 and exclude all reserves from the scope of the bylaw.
c) direct
staff to develop a detailed options report to support a decision on whether
to include a general rule and possible settings for that rule, for inclusion
in a new statement of proposal.
d) appoint
a joint working group, comprised of three councillors, three local board
chairs (or their delegate), and one Independent Māori Statutory Board
member to consider options for a freedom camping in vehicles general rule.
e) direct
staff to also begin work on a new statement of proposal and draft freedom
camping bylaw based on the option indicated in clause b) above, utilising
previous site assessments and reflecting any further direction given in
relation to clause c) and clause d) above.
f) agree to amend part of previous resolution GB/2015/112 passed at
the Governing Body meeting on 29 October 2015 (as amended by GB/2019/82) to
clarify that the statutory expiry date of the Freedom Camping Bylaw 2015 is
29 October 2022, as contained in Attachment C of the agenda report.
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Horopaki
Context
28. Freedom
camping is when someone stays overnight on public land, including roadsides, in
a vehicle or caravan.
29. It
doesn’t include vehicles parking legally during the day, or people
staying overnight in tents or at camping grounds, resting/sleeping at the
roadside to avoid driver fatigue, or living in a vehicle due to homelessness.
National
legislation is permissive by default, but provides for some controls
30. The Freedom
Camping Act 2011 (the Act) set a national policy to enable freedom camping by
default on all public land, including land controlled by local government,
except where it is already prohibited under another enactment.
31. While the Act
is permissive in intent it does provide for freedom camping to be prohibited or
restricted, but only by exception and only in areas that meet statutory
criteria. The need for controls in an area must be supported by evidence in
each case.
32. As outlined
in more detail in Attachment A, freedom camping can only be prohibited or
restricted in areas scheduled in a Freedom Camping Act 2011 bylaw if:
· they
are under the control of the council group
· their
location can be shown on a map and/or clearly described
· the
prohibitions and restrictions are necessary to:
- protect the area
(e.g. because it is environmentally or culturally sensitive), or
- protect the health
and safety of people who may visit the area, or
- protect access to
the area (e.g. for other users)
· the
bylaw is the most appropriate and proportionate way of addressing the perceived
problem in relation to that area, and is not inconsistent with the New Zealand
Bill of Rights Act 1990 (NZBORA)
· the
prohibitions and restrictions (including any areas already protected under
other enactments) don’t cumulatively create an effective Auckland-wide
ban.
33. The Act is
not specific about the use of ‘general rules’ (rules applying to
all or multiple areas, both scheduled and/or unscheduled in the bylaw).
34. Many other
councils have included restrictive general rules in their freedom camping
bylaws however, to control freedom camping in urban areas, set a maximum stay
and/or require vehicles to be self-contained (i.e., have an onboard toilet and
water storage).
35. The council
can issue infringement fines of $200 for breaches of a Freedom Camping Act 2011
bylaw.
Freedom
camping is still prohibited by default on reserves
36. Despite
the passage of the Freedom Camping Act 2011, freedom camping is still prohibited
by default on land held under the Reserves Act 1977 (section 44).
37. An
exception can be made to allow freedom camping in an area if criteria in
the Reserves Act 1977 are met. If the draft bylaw developed in 2018 had been
adopted, the council would have needed to exercise its delegated Ministerial
Consent under the Reserves Act 1977 to allow restricted freedom camping at 82
reserves.
38. The
ability to issue infringement fines was a key consideration in the decision, in
2018, to use a Freedom Camping Act 2011 bylaw to control freedom camping on
reserves rather than rely on the default prohibition.
39. Following
an amendment in late 2019, infringement fines of $800 can now be issued for
breaches of the Reserves Act 1977, which would include unauthorised camping.
Limited
supply of freedom camping areas leads to conflict
40. Auckland is a
key port of entry for international visitors, a campervan rental hub and a
gateway to other popular holiday regions. The supply of suitable areas for
freedom camping in Auckland hasn’t kept pace with growing demand:
· an
estimated 154,000 overseas visitors and 91,000 New Zealanders did some freedom
camping in 2019, up from 123,000 overseas visitors in 2018 and 10,000 per year
in the early 2000s
· in
2018 it was estimated that there were 320 freedom camping vehicles on Auckland
roads per day in the February peak season
· Auckland’s
11 legal freedom camping areas can only accommodate 93 vehicles
· overcrowding
and illegal camping has become an issue at popular locations.
41. Border
closures due to Covid-19 will significantly reduce international visitor
numbers for the foreseeable future. Domestic freedom camping could increase as
New Zealanders holiday at home.
42. Early indications are that overall freedom camping numbers
were lower over the 2020/21 summer season compared with previous years, but
complaints increased.
Freedom
camping can impact other people and the environment
43. Freedom
camping in vehicles is associated with both primary and secondary harms.
Figure 1: Primary and
secondary harms associated with freedom camping
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‘Primary’
harms are intrinsic to freedom camping and
can only be managed, not prevented.
Examples
include blocked views, noise or smells from campsites, and displacement of
other users of public space.
These are
best regulated through a dedicated bylaw.
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‘Secondary’
harms are
preventable, and although popularly associated with freedom camping, they can
be caused by anyone using an area.
Examples
are littering, dumping of waste, vandalism, and environmental damage.
These are
already regulated by other legislation/bylaws.
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44. Evidence from
Auckland and other local authority areas shows that the frequency and severity
of primary harms is largely driven by an under-supply of suitable freedom
camping areas. Primary harms are much more likely where there is overcrowding,
or where sites have not been well-designed to balance competing uses.
45. As pressure
on public space (and especially open space) increases in a growing and
intensifying city, primary harms are more likely to cause community concern. 
46. Council
received 1479 ‘camping-related’ complaints in the three years to 30
June 2019. Most were about people camping where they shouldn’t (60%)
rather than secondary harms. Up to a quarter of ‘campers’ were
actually homeless Aucklanders.
Draft
Freedom Camping in Vehicles bylaw released for public consultation in 2019
47. Auckland
Council inherited a set of freedom camping bylaws from the legacy councils in
2010. These were collated into a single bylaw and confirmed in 2015.
48. To avoid
uncertainty, staff recommend that the Governing Body amend resolution
GB/2015/112 to clarify that the expiry date for the Freedom Camping Bylaw 2015
will be 29 October 2022, as shown in Attachment C. If a bylaw is still
required, a new bylaw would need to be adopted before then to avoid a
regulatory gap.
49. In 2018, a
draft Ture ā-Rohe Noho Puni Wātea ā-Waka / Freedom Camping in
Vehicles Bylaw was developed, which would have increased the number of
desirable areas available for freedom camping. The Statement of Proposal and
draft bylaw were released for public feedback and local board input in 2019.
50. The problem
definition and objectives that informed the development of the draft bylaw were
confirmed as follows:
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The
problem was defined as:
· the
current under-supply of freedom camping sites leads to overcrowding
· conflict
between campers and other users [arises] due to overcrowding and designated
areas being unsuitable for camping
· offensive
behaviours by campers include leaving rubbish, taking over public spaces,
blocking views and making noise
· [there is a] lack of tools that the council can use to
manage freedom campers.
The
policy intent (primary objective) was defined as:
· ‘to
address the harms from freedom camping by increasing the supply of sites
in suitable areas and providing for improved enforcement’, and
· not to use the bylaw to manage homelessness.
(REG/2018/77)
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51. Key
phases of work and governance decisions for a freedom camping in vehicles bylaw
over the period 2010-2020 are shown in the graphic on the following page.
Figure 2: Freedom camping bylaw development: Key
phases of work and governance decisions
Support
for controls, concern about harms and local impacts of permissive approach
52. Staff
conducted research and engagement activities throughout the bylaw development
process in 2017 and 2018 to understand stakeholder views.
53. During public
consultation and local board engagement:
· 2,711
submissions were received
· 16
local boards gave formal feedback to a Freedom Camping in Vehicles Bylaw Panel
(the Bylaw Panel)
· of
the 318 specific areas proposed as prohibited:
o 187
were supported by all or a majority of submissions
o 69
were preferred as restricted areas by a majority of submissions
o 62
did not receive any submissions
· 42
per cent of submissions were in favour, and 45 per cent against, an increase in
restricted areas overall
· of
the 107 specific areas proposed as restricted:
o 62
were supported by all or a majority of submissions
o 33
were preferred as prohibited areas by a majority of submissions
o 12
did not receive any submissions
· 70
areas that were not included in the 2018 Statement of Proposal were the subject
of public submissions:
o 61
were recommended as prohibited areas
o seven
were recommended as restricted areas
o two
areas were recommended as both prohibited and restricted areas in competing
submissions
· three
per cent of submissions specifically opposed the use of delegated Ministerial
Consent to allow freedom camping on reserves, on principle
· a
majority of submitters supported a maximum two-night stay and an exit time no
later than 9am at restricted areas, and a requirement for vehicles to be
certified self-contained in those areas without 24-hour access to toilet
facilities.
54. Several
concerns were raised by the public and local boards. Key themes included:
· opposing
the legislative right to freedom camp rather than pay for accommodation
· the
perceived harms associated with increased freedom camping, especially impacts
on community access and enjoyment of reserves, beaches and facilities
· the
suitability of allowing restricted freedom camping at parks, reserves and
popular coastal areas
· the
lack of a general rule to restrict freedom camping everywhere, including roads
· the
council’s ability to monitor and enforce the current or the proposed
bylaw
· the
need for additional resource for compliance and servicing to prevent harm, and
the cost of this to ratepayers.
Mixed
views among other key stakeholders reflect their primary interests
55. Other key
stakeholders have expressed views on freedom camping regulation.
56. Focus areas
for mana whenua include ensuring:
· camping
is prohibited at sites of significance to Māori, especially wahi tapu
areas
· provision
for temporary bans on freedom camping, e.g. in areas under a rahui
· provision
of sufficient dump stations for the disposal of waste.
57. The New
Zealand Motor Caravan Association (NZMCA):
· supports
the permissive national legislation for freedom camping, and wants more areas
provided in Auckland to reduce overcrowding and related issues
· considers
its members visiting the region obey the rules, camp responsibly and support
local businesses.
58. Businesses
have mixed views, with stronger views related to direct benefit from freedom
camping (e.g. campervan rental companies), or direct competition (e.g.
commercial campgrounds, accommodation providers).
Bylaw
Panel recommends additional prohibited areas and further consultation
59. The Bylaw
Panel considered public submissions and local board input and made its
recommendations to the Governing Body in August 2019. These included:
· a
small net increase in the number of prohibited areas (from 318 to 322) and corresponding
decrease in restricted areas (down to 94 for self-contained vehicles only, and
nine allowing non-self-contained vehicles)
· 36
amendments to the status, boundaries and descriptions of specific areas
prohibited or restricted in the schedules
· further
consultation to seek feedback on these changes and the inclusion of a new
general rule for areas not scheduled in the bylaw.
60. The Bylaw
Panel was unable to make a recommendation on matters outside its scope,
including whether to prohibit or restrict freedom camping in the 70 areas
discussed in public submissions that were not included in the 2018 Statement of
Proposal.
Governing
body sets new direction in response to public feedback
61. At
its August 2019 meeting the Governing Body set aside the amended freedom
camping bylaw and the Bylaw Panel’s recommendations and instead requested
advice on possible elements of a statement of proposal for a new Freedom
Camping Act 2011 bylaw (GB/2019/82).
62. The proposals
outlined in the August 2019 Governing Body resolutions were to:
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1. Prohibit freedom camping in all areas recommended for
prohibition by the Hearings (Bylaw) Panel
2. Prohibit freedom camping in 61 additional areas
proposed for prohibition in public submissions
3. Prohibit freedom camping in all residential reserves
held under the Reserves Act 1977 (through a Freedom Camping Act 2011 bylaw)
4. Prohibit or restrict freedom camping in two areas
proposed in [competing] public submissions
5. Restrict freedom camping at the seven areas proposed
for restriction in public submissions
6. Include any other proposals put forward by elected
members prior to 30 September 2019
Include a
general rule that would:
7. prohibit freedom camping on roads directly outside
homes (except where residents have given permission)
8. prohibit freedom camping on roads directly outside
commercial premises, educational and healthcare facilities, playgrounds, and
swimming pools
9. impose a maximum stay at any specific site
10. endorse the compassionate enforcement approach to
people experiencing homelessness which was included in the original Statement
of Proposal.
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63. In relation
to element (6) in the box above, proposals were received from individual
councillors and local boards relating to 94 areas. This includes some areas
which were also put forward as part of elements (1) through (5) above. All the
areas referred to in the box are listed in Attachment B.
64. The Governing
Body also requested further information on a possible review of the Freedom
Camping Act 2011.
Tātaritanga me ngā
tohutohu
Analysis and advice
65. Staff have
analysed the ten proposed elements of a new statement of proposal for a bylaw
under the Freedom Camping Act 2011, as proposed by the Governing Body in August
2019 and outlined at paragraph 62 above.
66. Staff also
sought legal advice to inform the analysis. As this advice is legally
privileged it has been provided separately to the Governing Body.
67. In summary,
of the ten separate elements proposed:
(A) Three elements represent
a continuation of the past approach. Any areas recommended for prohibition
by the Bylaw Panel have already been assessed as meeting the statutory criteria
for protection.
(B) Four elements propose new
prohibitions and restrictions in specified areas, which is straightforward
in principle. However, most of these areas have already been assessed as not
meeting statutory criteria, and some are too broadly defined to meaningfully
assess. A small number of areas have not yet been assessed against the
statutory criteria for protection and could feasibly be assessed. However,
confirming the outcome of any new assessments across governance levels may be
difficult within statutory timeframes.
(C) Three elements concern
new prohibitions in multiple areas (at all residential reserves, and on
roads directly outside some property types), which is problematic in principle.
In most cases, these areas have not been assessed against the statutory
criteria for protection and cannot practically be assessed.
68. Key
findings for each group of proposals are outlined in the table below.
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Element
grouping
|
Element from August 2019
Governing body resolutions
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Summary of analysis
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Group A
Continuation of past
approach
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1. Prohibit freedom camping in all areas recommended for
prohibition by the Hearings (Bylaw) Panel
9. Impose a maximum stay at any specific site
10. Endorse the compassionate enforcement approach to
peopl |
