Agenda of Regulatory Committee - Tuesday, July 6, 2021

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

06 July 2021

Resource Consents Appeals: Status Report 6 July 2021

File No.: CP2021/09412

Te take mō te pūrongo

Purpose of the report

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

Whakarāpopototanga matua

Executive summary

2. This memorandum provides a summary of current resource consent appeals to which the Auckland Council is a party. It updates the report to the Regulatory Committee on 2 June 2021.

3. If committee members have detailed questions concerning specific appeals, it would be helpful if they could raise them prior to the meeting with Robert Andrews (phone: 353-9254) or email: robert.andrews@aucklandcouncil.govt.nz) in the first instance.

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a) receive the Resource Consents Appeals: Status Report 6 July 2021.

Horopaki

Context

4. As at 24 June 2021, there are 17 resource consent appeals to which Auckland Council is a party. These are grouped by Local Board Area geographically from north to south, as set out in Attachment A. Changes since the last report and new appeals received are shown in bold italic text.

5. The principal specialist planners - resource consents, continue to resolve these appeals expeditiously. In the period since preparing the previous status report on 2 June 2021, there has been one new appeal lodged and four appeals resolved.

6. The new appeal by the 11 Cheshire Street Body Corporate is against council’s decision to grant resource consents to Summerset Villages (Parnell) Limited, to construct and operate a retirement village at 23 and 41 Cheshire Street. The development includes 216 independent living units and 100 age care units within 8 interconnected buildings from 3 to 8 levels in height and 235 basement car parking spaces. The Body Corporate appeal raises issues around traffic and acoustics, scale and height of buildings and construction impacts. The site is zoned Business- Mixed Use.

Tātaritanga me ngā tohutohu

Analysis and advice

7. To receive the report as provided.

Tauākī whakaaweawe āhuarangi

Climate impact statement

8. The report provides an update of consent appeals and seeks no resolution or consideration of the merits associated with them.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

9. Not applicable.

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

Local impacts and local board views

10. Not applicable.

Tauākī whakaaweawe Māori

Māori impact statement

11. The decision requested of the Regulatory Committee is to receive this progress report rather than to consider the relevance to Māori associated with each of the appeals at this time.

12. The Resource Management Act 1991 includes a number of matters under Part 2, which relate to the relationship of Tangata Whenua to the management of air, land and water resources. Maori values associated with the land, air and freshwater bodies of the Auckland Region are based on whakapapa and stem from the long social, economic and cultural associations and experiences with such taonga. These matters where relevant are considered with the resolution of the resource consent appeals.

Ngā ritenga ā-pūtea

Financial implications

13. Environment Court appeal hearings can generate significant costs in terms of commissioning legal counsel and expert witnesses. Informal mediation and negotiation processes seek to limit these costs. Although it can have budget implications, it is important that Auckland Council, when necessary, ensure that resource consents maintain appropriate environmental outcomes and remain consistent with the statutory plan policy framework through the appeal process.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

14. Not applicable.

Ngā koringa ā-muri

Next steps

15. Not applicable.

Ngā tāpirihanga

Attachments

No.	Title	Page
a ⇩	Current Resource Consent Appeals as at 24 June 2021	13

Ngā kaihaina

Signatories

Author

Robert Andrews - Principal Specialist Planning

Authorisers

Ian Smallburn - General Manager Resource Consents

Craig Hobbs - Director Regulatory Services

No.	Title	Page
a ⇩	Forward Work Programme	23

Regulatory Committee

06 July 2021

Kōmiti Whakahaere ā-Ture / Regulatory Committee
Forward Work Programme 2021

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 2021
Area of work and Lead Department	Reason for work	Committee role (decision and/or direction)	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 2021as 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 2020/2021 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 month focusing on high-risk boarding houses identified from complaint data.	Update: report to Regulatory Committee and the Parks, Arts, Community and Events Committee			ü
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. If required, recommend a statement of proposal and appoint a Bylaw Panel. Progress to Date: Findings Report 17 March 2020 Link to decision Options Report 17 November 2020 Link to decision Decision Report 11 May 2021 Link to decision
Construction Bylaw 2015 Community and Social Policy	Bylaw relates to construction activity on or near public places or infrastructure. This Bylaw will expire on 29 October 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 needed and whether any changes should be made and to confirm, amend, replace or revoke the bylaw. If required, recommend a proposal and appoint a Bylaw Panel.
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 and whether any changes should be made and to confirm, amend, replace or revoke the bylaw. If required, recommend a proposal and appoint a Bylaw Panel. Progress to Date: Review and Findings Report 1 September 2020 Link to decision
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. If required, recommend a proposal and appoint a Bylaw Panel. Progress to Date: Findings Report 23 June 2020 Link to decision Options report 13 October 2020 Link to decision Detailed Options report 20 April 2020 Link to decision			ü
Stormwater Bylaw Healthy Waters / Community and Social Policy	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 still needed and whether any changes should be made and to confirm, amend, replace or revoke the bylaw. If required, recommend a proposal and appoint a Bylaw Panel. Progress to Date: Findings Report 28 July 2020 Link to decision Options Report 16 March 2021 Link to 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. If required, recommend a proposal and appoint a Bylaw Panel. Progress to Date: Findings Report 13 October 2020 Link to decision Options Report 16 February 2021 Link to decision Decision report 11 May 2021 Link to decision	ü			ü
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 is still needed and whether any changes should be made and to confirm, amend, replace or revoke the bylaw. If required, recommend a proposal and appoint a Bylaw Panel. Updated to commence January 2022
Wharves Bylaw 2015 Community and Social Policy	Bylaw relates to use of council-controlled wharves. This Bylaw will expire on 29 October 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 needed and whether any changes should be made and to confirm, amend, replace or revoke the bylaw. If required, recommend a proposal and appoint a Bylaw Panel.
Resource Consents Appeal Update Resource Consents	To provide oversight of the appeals received to resource consent decisions.	Information purposes Monthly report	ü	ü	ü	ü	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 Progress to Date: Provide the Regulatory Committee with an overview and an update on performance, opportunities and risks of Regulatory Services 17 November 2020 Link to PowerPoint presentation Memo update: Hearings held April 2020 to March 2021 Link to memo 11 May 2021 Link to PowerPoint presentation				ü

Completed
Lead Department	Area of work	Committee role (decision and/or direction)	Decision
Community & Social Policy	Alcohol Control Bylaw review 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.	Finding Report 11 April 2019 Link to decision Options Report 9 May 2019 Link to decision Recommendation for Statement of Proposal 1 September 2020 Link to decision Adopt Statement of Proposal – Governing Body 29 October 2020 Link to decision
Licensing & Regulatory Compliance	Animal Management 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	Adopt the 2019/2020 Animal Management Annual Report Link to decision Link to 2019/2020 Animal Management Annual Report
Community and Social Policy	Bylaw Review 2020-22 initiation 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.	Initiation Report 18 February 2020 Link to decision
Community and Social Policy	Cemeteries Bylaw Review (Cemeteries and Crematoria Bylaw 2014) 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.	Options Report 9 April 2019 Link to decision Direction Report 9 May 2019 Link to decision Proposal to amend 1 September 2020 Link to decision Adopt Statement of Proposal – Governing Body 24 September 2020 Link to decision Adopt the amended Cemeteries and Crematoria Bylaw 2014 link to decision
Building Consents	Earthquake Prone, Dangerous & Insanitary Buildings Policy 2011 -2016 Review 2011 - Auckland Council was required under s131 of the Building Act 2004 to adopt a policy on earthquake prone, dangerous and insanitary buildings 2018 – Due to the Building (Earthquake-Prone Buildings) Amendment Act 2016, Auckland Council’s management of earthquake-prone buildings now falls under the national policy and methodology set by MBIE. Our ongoing work programme for issuing statutory EPB notices, receiving seismic assessments, and identifying residual potential EPBs is being carried out on this basis. Note that dangerous and insanitary buildings continue to have their own local policy that is now under the management of Regulatory Compliance.	Update: on the progress made in implementing Auckland Council’s regulatory obligations with regard to earthquake-prone buildings within its jurisdiction.	Approve submission 28 July 2020 Link to decision
Community and Social Policy	Food Bylaw Review	Appoint Bylaw Panel Decision on bylaw - Due to COVID-19 the decision went to the Governing Body	Adoption 30 April 2020 Link to decision
Community and Social Policy	Freedom Camping 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.	Deferred to Governing Body
Community and Social Policy	Gambling Policy Reviews 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.	Decision: start of the Class 4 Gambling (pokie) Venue Policy and the Racing Board (TAB) Venue Policy reviews in 2020 Council reviewed in 2020, retain both with no changes.	start policy reviews 17 March 2020 Link to decision findings review 13 October 2020 Link to decision
Community and Social Policy	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).	Findings Report 17 March 2020 Link to decision Options Report 23 June 2020 Link to decision Recommend statement of proposal 13 October 2020 link to decision Adopt statement of proposal – Governing Body – 29 October 2020 Link to decision
Community and Social Policy	Outdoor Fire Safety Bylaw Review 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. Findings resulted in decision to revoke bylaw	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).	Findings and Options Report 13 October 2020 Link to decision Review findings – Governing Body – 29 October 2020 Link to decision
Democracy Services	The Regulatory Committee Policy 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 Decision: approve the appointment of the District Licensing Committee and the selection process and appointments of independent resource management commissioners for 2021 to 2024.	Recruitment process for DLC Commissioners 12 November 2019 – Governing Body Link to decision 30 April 2020, due to COVID19 appointment of District Licensing Committee went go to Emergency Committee Link to decision Appointment of DLC Committee 30 April 2020 Link to decision Approval to commence recruitment RMA Commissioners 23 June 2020 Link to decision Adoption of the Regulatory Committee policy 28 July 2020 Link to decision Recommendation for the appointment of independent hearings commissioners Link to decision
Watercare / Community and Social Policy	Water Supply and Wastewater Network Bylaw 2015 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. If required, recommend a proposal and appoint a Bylaw Panel.	May 2020, due to COVID-19 findings report went to Emergency Committee Findings Report 28 May 2020-Emergency Committee Link to decision Review Options 23 June 2020 Link to decision Recommendation for Statement of Proposal 16 February 2021 Link to decision Adopt Statement of Proposal – Governing Body – 25 February 2021 Link to decision

Regulatory Committee

06 July 2021

Objection to public stormwater extension and connection across accessway serving 29A Seaview Road Castor Bay

File No.: CP2021/09026

Te take mō te pūrongo

Purpose of the report

1. To consider the object to the construction of an extension to Public Stormwater network via connection to existing public manhole located within Council land across accessway serving 29A Seaview Road Castor Bay (Lot 2 DP 44774) to serve 29 Seaview Road Castor Bay (Lot 1 DP 447774).

Whakarāpopototanga matua

Executive summary

2. The engineering approval ENG60322612 for stormwater and wastewater connections was issued under letter dated 5 November 2018 for the works associated with the proposed subdivision BUN60305251. (Attachment A)

3. The subdivision consent BUN60305251 was approved on 23 November 2017 for four residential dwellings. (Attachment B)

4. The current dwelling stormwater discharges to ground and does not discharge to public reticulation, as the stormwater line for 29 Seaview Road was reportedly damaged during the construction of the accessway for 29A Seaview Road. The damaged stormwater line connects to the public manhole located within the Council pedestrian footpath corridor and needs to be upgraded.

5. The applicant’s consultants have been in communication with the landowners IC Harris, CJ Mearns (owners 1/29A Lot 2 DP 44774) and Huanlian Chen (owner 2/29A Lot 2 DP 44774) since June 2017 and have not been able to obtain approval.

6. Council’s senior development engineer (Cedric Daniel) has communicated with the owners via email and face to face meeting to discuss the required stormwater connection and has not been able to gain approval following communication via various forums. (Attachment E)

7. Under the email of 26 March 2021 following meeting with landowners and review of downstream network by Healthy Waters, Council notified the respective landowners that the proposed connection was the only viable option, and that the council was appointing a mediator to facilitate gaining approval for the proposed works.

8. Council appointed Dave Serjeant as mediator to facilitate gaining agreement and approval for the proposed stormwater works.

9. Mediation has not been successful as per mediator report. (Attachment F)

10. The proposed stormwater connection is required and is the only practical and least intrusive option available.

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a) hear and determine the objections by the owners of 29A Seaview Road Castor Bay (Lot 2 DP 44774), pursuant to section 460 of the Local Government Act 1974.

b) resolve, subject to the hearing of the objection, under section 460(1) of the Local Government Act 1974 that the proposed stormwater connection across accessway for 29A Seaview Road, is the only practical route as shown on AR & Associates Ltd engineers drawing “Proposed Stormwater Plan” P18-036 revision B sheet 400.

Horopaki

Context

11. The owner of 29 Seaview Road Castor Bay is Lei Zhang (“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 Council Parks pedestrian footpath corridor as being the only practical route and available connection to serve 29 Seaview Road.

12. Details of the relevant properties and plans of the precise route is shown on the AR & Associates Ltd engineers drawing “Proposed Stormwater Plan” P18-036 revision B sheet 400. (Attachment A)

13. The applicant obtained approval for a four-lot subdivision development under consent BUN60305251 dated 23 November 2017. (Attachment B)

14. The Applicant lodged an Engineering Approval application (reference ENG60322612) on 3 July 2018 to undertake the work to install the stormwater line. The engineering approval was issued under letter dated 5 November 2018 subject to landowner approval of 29A Seaview Road. (Attachment A) Landowners of 29A Seaview Road have not approved the connection and strongly object to the connection.

15. The Applicant and its consultants have consulted with the property’s owners in writing and by phone 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 E). The written communication has been sent to the addresses listed as well as by email communication. The Applicant has not been able to obtain consent.

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

17. The landowners of 29A Seaview Road have expressed strong opposition to the connection and have not provided any reasonable concerns and objections. The main concerns raised relate to potential downstream flooding and construction use of their accessway.

18. Healthy Waters have confirmed that the concerns regarding network capacity and flooding are not justified and the matter of unapproved use of the construction access will be managed via Council’s compliance monitoring team during the construction works. The council is satisfied that the owners (‘Applicant’) of 29 Seaview Road, have met its expectations of seeking all endeavors to obtain an agreement to install the stormwater line.

19. The approved stormwater reticulation provides for stormwater connection for 29 Seaview Road which is a significant improvement on the current situation as this site currently discharges to ground and is not connected to the public network.

20. Details of the landowners are provided under Attachment D.

21. Copies of the S460 LGA 1974 notices are provided under Attachment G.

Tātaritanga me ngā tohutohu

Analysis and advice

22. Currently the site at 29 Seaview Road stormwater discharges to ground via sheet-flow within the site.

23. The proposed stormwater discharge connection will provide for discharge connection from the proposed four-lot development for 29 Seaview Road to the public reticulation system via the existing public manhole located with Council property and will provide a significant improvement of stormwater management in the immediate vicinity.

24. Healthy Waters have confirmed that the proposed connection will improve the existing circumstances and will not exacerbate the downstream environment raised as a concern by the landowners at 29A Seaview Road. (Attachment C)

25. The proposed direct connection to the existing public manhole located within the Council public pedestrian footpath corridor is in accordance with engineering best practice, is the shortest, most practical and least intrusive route and is compliant with Council’s Stormwater Code of Practice.

Tauākī whakaaweawe āhuarangi

Climate impact statement

26. 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

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

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

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

Local impacts and local board views

29. The Devonport-Takapuna Local Board is not advised of service connection requests under the Act. Further, the determination of this objection requires no consultation beyond the owners of 29A Seaview Road Castor Bay.

Tauākī whakaaweawe Māori

Māori impact statement

30. 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 Māori. 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

31. All costs for this process and hearing are to be met by the owners of 29 Seaview Road.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

32. The proposed reticulation will improve the upstream stormwater management and reduce sheet flow discharge impact on downstream property at 29A Seaview Road.

Ngā koringa ā-muri

Next steps

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

Ngā tāpirihanga

Attachments

No.	Title	Page
a ⇩	Engineering Approval ENG60322612	35
b ⇩	BUN60305251 Decision	107
c ⇩	Stormwater Options	143
d ⇩	Landowner Details	163
e ⇩	Consultation	175
f ⇩	Mediation	341
g ⇩	S460 LGA 1974 Notification	375

Ngā kaihaina

Signatories

Author

Cedric Daniel - Senior Development Engineer

Authorisers

Hock Lee – Principal Engineer

Craig Hobbs - Director Regulatory Services

Regulatory Committee

06 July 2021

Objection to stormwater works at 22A Stanley Avenue, Milford

File No.: CP2021/08834

Te take mō te pūrongo

Purpose of the report

1. To hear and determine an objection to proposed stormwater works at 22A Stanley Avenue, Milford pursuant to section 181 of the Local Government Act 2002.

Whakarāpopototanga matua

Executive summary

2. A developer has obtained resource consents and engineering plan approval from the council to connect a new development at 28 Dallinghoe Crescent, Milford to the existing public stormwater network that is in the road corridor opposite 51 Stanley Avenue, Milford.

3. The proposed works involve the construction of a 77 metre length pipe under the driveway of 22A Stanley Avenue, Milford (see Attachment A – Engineering Planning Approval). The work is estimated to take up to ten days. Once constructed, this pipe will be vested in the council as a public stormwater asset.

4. The owners of 22A Stanley Avenue, Milford have refused the developer access to their property for this purpose. Council-led efforts to facilitate an agreement have been unsuccessful.

5. Auckland Council staff have analysed three options for connecting the development to the public stormwater network (see Attachment B). These included extending the public network from 51 Stanley Avenue (option one – recommended), extending the public network from 21A Dallinghoe Crescent (option two) and extending the public network from 22 Dallinghoe Crescent (option three). The options were assessed against various criteria such as the number of homeowners they will impact, impact on development potential, cost and constructability. Option one scores best against these criteria.

6. After undertaking a site inspection and considering the alternative options for the pipe the council has determined that the works constitute necessary public stormwater works. It has issued a notice under section 181(2) of the Local Government Act 2002 informing the landowners of its intention to construct the works as a council project.

7. The landowners have lodged a written objection to the works, on the grounds that they consider the works will put their property at risk and request that an alternative alignment is pursued (see Attachment C – objection letter).

8. If the Regulatory Committee determines that the works should proceed, construction will begin August 2021. It is proposed that the pipe will be installed by horizontal directional drilling, which is a trenchless methodology designed to minimise disruption caused by construction. The works will take approximately ten days to complete, with the portion of work on the objecting landowner’s land taking two days.

9. It has been explained the affected property owners that they have the right to claim injurious affection (if established) under the Public Works Act 1981.

Ngā tūtohunga

Recommendations

That the Regulatory Committee:

a) hear and determine the objections by the owners of 22A Stanley Avenue, Milford according to clause 1(e) of Schedule 12 of the Local Government Act 2002.

b) resolve that the council proceed with the extension of the public stormwater network from 51 Stanley Avenue to 28 Dallinghoe Crescent (as shown in Attachment A to the agenda report), according to clause 1(e) of Schedule 12 of the Local Government Act 2002.

Horopaki

Context

10. Auckland Council’s Healthy Waters department is responsible for managing and maintaining the public stormwater network in Auckland, much of which is located on private land.

11. Section 181(2) of the Local Government Act 2002 empowers the council to ‘construct works on or under private land or under a building on private land that it considers necessary for sewage and stormwater drainage’.

12. Such works require either the prior written consent of the owner of the land, or that the council follows the process set out in Schedule 12 of the Local Government Act 2002.

13. Schedule 12 requires that affected owners and occupiers are provided with a description of the proposed works, including plans, and are given the opportunity to object to the works within one month of notification.

14. If an objection is made, a hearing must be arranged. After hearing objections, the council must then determine to either abandon the works proposed, or proceed with the works proposed, with or without any alterations that the council thinks fit.

Enabling stormwater management on 28 Dallinghoe Crescent, Milford

15. A developer has been granted resource consent by Auckland Council’s Resource Consents department to subdivide a property at 28 Dallinghoe Crescent, Milford. A condition of that resource consent is that the new development connects to the public stormwater system.

16. The developer has obtained engineering approval to connect the subdivision to the existing public stormwater manhole located on the western berm of Stanley Avenue opposite number 51 Stanley Avenue, Milford (see Attachment A – Engineering Planning Approval). The connecting pipe will cross under the driveway of 22A Stanley Avenue.

17. Staff propose that a 77 metre length pipe is constructed using a trenchless method, which involves drilling a small hole from 28 Dallinghoe Crescent then pushing the pipe underground through to the manhole located on 51 Stanley Avenue. This method would not involve digging up the landowner’s driveway.

18. The methodology chosen to undertake the works will result in the property being temporarily impacted by construction noise and vibrations only. The expected duration to carry out the work on the landowner’s property is two days and the driveway will remain accessible throughout.

19. Upon connection to the public stormwater network and submission of all necessary documentation to vest the pipe in Auckland Council, the new pipe will be owned and maintained by Healthy Waters.

Objections received from landowners at 22A Stanley Avenue

20. The owners of 22A Stanley Avenue have refused to allow the developer to connect to the stormwater network via their property. The developer applied to the council to provide facilitation services to help reach an agreement with the landowners.

21. Facilitation sessions commenced in July 2020. However, no agreement was reached. The council then analysed the developer’s works (as detailed below) and determined that the works are necessary drainage works, and that it would undertake the works itself as a council project pursuant to its powers under the Local Government Act 2002. This enables the works to be undertaken on private land without the owner’s consent, provided the requirements of the Act are met.

22. The council issued a notice of its intention to construct the works to the affected landowners under section 181 of the Local Government Act 2002 on 8 March 2021.

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

24. Pursuant to schedule 12 of the Local Government Act 2002, the landowners had until 12 April 2021 to formally object to the section 181 notice. On 7 April 2021 an objection was received.

Tātaritanga me ngā tohutohu

Analysis and advice

25. The council is empowered to construct works on private land that it considers necessary for stormwater drainage. When determining the best option, the council looks at a range of possible options to achieve the required stormwater outcomes for the public good, and at the same time, considers impacts on individual property owners.

26. The council analysed three alternative alignments for connecting the development at 28 Dallinghoe Crescent to the public stormwater system (see Attachment B – map showing alternative alignments).

27. These options were:

· option one: extending the public network from 51 Stanley Avenue (recommended option)

· option two: extending the public network from 21A Dallinghoe Crescent

· option three: extending the public network from 22 Dallinghoe Crescent.

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

Table 1. Analysis of alignment options against various criteria

	Option 1 51 Stanley Ave (Shown in yellow)		Option 2 21A Dallinghoe Cres (Shown in blue)		Option 3 22 Dallinghoe Cres (Shown in green)		Significance
Affected property owners	1 (other cross lease properties not impacted)		1		7 (crosses x2 driveways of multiple owners)		Low
Interference with existing services	Medium (road network, wastewater pipe in driveway of 22 Stanley Ave)		Medium (road network)		Medium		Medium
Disruption to property owners	Minor		Minor		Medium		High
Cost	$$		$		$$		Medium
Route to existing stormwater network	Least direct 77m		Most direct 26m		Less direct 40.4m		Medium
Duplication of existing stormwater infrastructure	0%		0%		0%		Medium
Impact on development potential	None (Driveway)		Minor		Minor		Medium
Constructability risk	Medium (road network)		Medium (road network)		Medium (existing structures close by)		High
Ability for private infrastructure to access connection	Good		Poor		Good		Low
Access for future maintenance	Good		Good		Restricted		Medium
Compliance with Stormwater Code of Practice	Yes		No – option is dependent on pumping		Yes		High
Key
Most positive		Moderately positive		Moderately negative		Most negative

Analysing options for stormwater management on 28 Dallinghoe Crescent

29. Option two is not recommended as it would require pumping water uphill to connect into the public system. Auckland Council’s Stormwater Code of Practice does not support pumping in this manner as it increases the risk of flooding (should the pump fail) and requires on-going maintenance to remain effective.

30. Option three is not recommended as there is a medium to high constructability risk in laying the pipe so close to existing structures. In addition, this option would impact multiple property owners and access for future maintenance of the pipe would be restricted.

31. The council also considered a fourth option – do nothing. This would involve the council walking away from the situation and leaving the developer to continue to negotiate with the owner. This option is not supported, as it means the developer is likely to pursue either options two or three. As described above, these options would mean the council inherits stormwater infrastructure which does not comply with its Stormwater Code of Practice or is difficult to access for maintenance purposes. It also increases the likelihood of 28 Dallinghoe Crescent discharging to the kerb in lieu of a better solution and in contravention of its resource consent.

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

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

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

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

· there is a minor construction risk associated with these works

· the route does not duplicate existing stormwater infrastructure.

33. In addition to these factors, Healthy Waters engineers have determined that option one can be constructed using a trenchless method, which would have minimal impact on 22A Stanley Avenue.

Negotiating with the landowners

34. Negotiations with the landowners have been ongoing since early 2020. Initially negotiations were held directly between the developer and the landowners, with the council becoming involved from July 2020 onwards.

35. The council has attempted to engage with the landowners to offer advice on the proposed works and broker an agreement but has been unsuccessful at getting the owners to agree to terms of access.

36. Attachment D shows the council’s response to the objection letter and offer to attend a mediation meeting.

Summary of objections received

37. Table 2 below details the grounds upon which the landowner objects to the works and Healthy Waters response:

Table 2. Summary of objections

Objection points	Response from Healthy Waters
The proposed route will place 22A Stanley Crescent at risk	The proposed works will not increase the flooding risk at 22A Stanley Avenue, but will ensure that stormwater from 28 Dallinghoe is managed effectively. Prior to undertaking the works further investigations would be undertaken to ensure that the retaining wall on the property is structurally sound and will be monitored for movement during construction.
Other stormwater management options available	See options analysis above. Staff have assessed the preferred option as being the most efficient alignment in terms of stormwater management. Other options are also difficult in terms of constructability and in one case would be in contravention of council’s own stormwater Code of Practice. They would also create challenges for council in terms of future access and maintenance.

Recommended stormwater management option

38. Staff recommend that construction of the proposed stormwater works proceed at 22A Stanley Avenue as per option one in this report.

39. The works are necessary to enable development at 28 Dallinghoe Crescent and to meet the council’s stormwater standards. Works are expected to take up to 10 days to complete, and staff will work with the landowners to ensure minimal disruption occurs.

Tauākī whakaaweawe āhuarangi

Climate impact statement

40. Auckland Council adopted Te Tāruke-ā-Tāwhiri: Auckland's Climate Plan on 21 July 2020. Some of the key elements of the plan include how we will adapt to climate change, taking a precautionary approach and preparing for our current emissions pathway and the prospect of a 3.5 degrees warmer region.

41. One of the expected consequences of rising global temperatures is increased and more intense rainfall. To contribute to increasing Auckland’s resilience to climate change, the Auckland Council Stormwater Code of Practice requires all new infrastructure to be designed to deal with these expected impacts and severe weather events.

42. The proposed pipe has been designed to cater for 10 per cent annual exceedance probability (1 in 10 year average recurrence interval) storm events, including allowance for climate change. This has the effect of making the network more resilient to storm events and reducing the likelihood of flooding of properties.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

43. Watercare assets will not be impacted by the proposed works if option one is undertaken. All wastewater lines will be located prior to construction. A Works-Over Approval will be applied for prior to the works commencing.

44. Auckland Transport assets will be impacted by the proposed works if option one is undertaken. When the engineering planning approval was granted, the implications to Auckland Transport of the pipe crossing the road corridor were considered. A Corridor Access Request will need to be made prior to the works commencing. Staff do not anticipate any objection to this request from Auckland Transport.

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

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

Local impacts and local board views

46. The Devonport-Takapuna Local Board has not been consulted on the proposed stormwater works, as the pipe will be constructed on private land and vested as part of the regional stormwater network.

Tauākī whakaaweawe Māori

Māori impact statement

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

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

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

Ngā ritenga ā-pūtea

Financial implications

50. If approved, the pipe will be constructed by the council, with costs of the works to be paid for by the developer upfront.

51. The council will be responsible for any proven injurious affection to private land pursuant to section 181(6) of the Local Government Act 2002, and the Public Works Act 1981. The likelihood of an injurious affection claim being brought is considered low. See Attachment E – injurious affection assessment.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

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

Table 3. Risks and mitigations arising from option one: crossing land at 22A Stanley Avenue

Risk	Likelihood and consequence	Mitigation
Legal risk – The landowners argue that this is in fact a private pipe and Auckland Council ought to use section 460 of the Local Government Act 1974 instead of section 181 Local Government Act 2002.	Likelihood: Low Consequence: Medium	The pipe will be vested in the council once constructed and will form part of the public stormwater system which the council is responsible for maintaining. It is being built to the council’s standards for public stormwater infrastructure and will serve a wider catchment as the area develops further.
Financial risk – If the landowners appeal the Regulatory Committee’s decision, the council may become liable for the cost of defending a District Court case.	Likelihood: Low Consequence: Medium	Given that the Regulatory Committee and District Court’s decision-making discretion is limited only to questions of the works being necessary and compliance with legal process, and not matters of compensation, it is considered unlikely that an appeal would be brought. Even if it was, the risk of the council losing on appeal is considered low, due to the works being necessary, and the section 181 process being followed correctly. If the landowners are unsuccessful in any legal challenge, they may be liable to pay court costs.
Financial risk – The landowners could seek injurious affection (if evidenced) through the Land Valuation Tribunal, arguing that the public works have reduced the value of their property.	Likelihood: Low Consequence: Medium	The potential for an injurious affection claim is considered low in this case for the following reasons: · the proposed pipe does not involve the taking of any land · the area affected by the works is a concrete driveway. · the residential home on 22A Stanley Avenue is sufficiently far enough from the works that it is extremely unlikely that they would be impacted · the proposed methodology will cause minimal damage to the driveway which will be reinstated upon completion of the works. Council engineers have determined that the risk of collapse or future damage from these works on this particular piece of land is low. If the landowners are unsuccessful, they will be liable to pay court costs.
Infrastructure risk – Low quality assets being vested to the council.	Likelihood: Low Consequence: Medium	The works will be undertaken by an approved council contractor who will have in place sufficient insurances to cover the risk of failure.

Ngā koringa ā-muri

Next steps

53. If the Regulatory Committee determines to proceed with the project (under Schedule 12 clause 1(e)(ii)), the next step will be to notify the landowners in writing of the council’s intention to proceed with the works. The work is proposed to be undertaken in June 2021.

54. The landowners have up to 14 days to lodge a further appeal to the District Court. If this occurs, then the council’s Legal Services team will support this process. If no appeal is lodged, the council would look to proceed with the works in late 2021.

Ngā tāpirihanga

Attachments

No.	Title	Page
a ⇩	Engineering planning approval	401
b ⇩	Map showing alternative alignments	403
c ⇩	Objection letter	405
d ⇩	Auckland Council’s response to objection letter	407
e ⇩	Injurious Affection Assessment	409

Ngā kaihaina

Signatories

Authors

Leigh Steckler – Senior Healthy Waters Specialist

Shaun McAuley – Commercial Partnerships Team Leader, Healthy Waters

Authorisers

Craig Mcilroy – General Manager Healthy Waters

Barry Potter - Director Infrastructure and Environmental Services

Craig Hobbs - Director Regulatory Services

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
Ex-officio	Mayor Hon Phil Goff, CNZM, JP

Author	Michelle Judge - Kaitohutohu Mana Whakahaere / Governance Advisor
Authoriser	Craig Hobbs - Director Regulatory Services