Agenda of Regulatory Committee - Tuesday, September 14, 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.

Code of conduct

For information relating to Auckland Council’s elected members code of conduct, please refer to this link on the Auckland Council website - https://www.aucklandcouncil.govt.nz/about-auckland-council/how-auckland-council-works/elected-members-remuneration-declarations-interest/Pages/elected-members-code-conduct.aspx

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

14 September 2021

Review findings and options for the Wharves Bylaw

File No.: CP2021/13322

Te take mō te pūrongo

Purpose of the report

1. To agree the outcome of the review of the Auckland Council Legacy Provisions on Wharves Bylaw 2015 (Bylaw) and to decide whether to revoke the Bylaw.

Whakarāpopototanga matua

Executive summary

2. To enable the Regulatory Committee to complete the review of the Bylaw and decide whether to revoke it, staff have prepared a findings report and assessed options.

3. The key review findings are that:

· the Bylaw is narrow in scope

· the Bylaw only applies to council wharves, boat ramps and similar structures in the former Auckland City and Rodney District

· the Bylaw does not apply to the Auckland transport system for transport-related purposes or private wharves

· the Bylaw is no longer used

· the matters in the Bylaw are addressed using existing regulations, including other Auckland Council bylaws, Fisheries Act and Land Transport (Road User) Rule.

4. Staff identified two options that respond to these findings:

· Option one: Do nothing – continue to rely on other existing regulations and allow the Bylaw to lapse on 29 October 2022 (recommended)

· Option two: Rely on existing regulations and revoke the Bylaw prior to 29 October 2022.

5. Staff advise that the current Bylaw is no longer appropriate for the issues it is managing and recommend Option one to allow the Bylaw to lapse. This option would:

· not change how council responds to complaints on wharves if they arise

· remove regulations that are not used and duplicate other existing regulatory tools

· avoid unnecessary consultation with the public and council resource.

6. There is a low risk of public concern about a lack of transparent decision making in allowing the Bylaw to lapse. The risk can be mitigated through effective communication on the internet and with customers about the use of other regulatory tools.

7. The Committee decision will be considered by Governing Body. Staff will implement the Governing Body decision including public notification and any required public engagement.

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a) agree that the Auckland Council Legacy Provisions on Wharves Bylaw 2015 is no longer the most appropriate way to address matters related to public safety, nuisance and damage on and around wharves, boat ramps and similar structures in the former Auckland City and Rodney District under the control of Auckland Council.

b) agree that option one (rely on existing regulations and allow the Bylaw to lapse) as detailed in this agenda report is the preferred option to address the matters in a).

c) recommend the Governing Body:

i) confirm that the Auckland Council Legacy Provisions on Wharves Bylaw 2015 is no longer the most appropriate way to address matters related to public safety, nuisance and damage on and around wharves, boat ramps and similar structures in the former Auckland City and Rodney District under the control of Auckland Council.

ii) approve continuing to rely on other existing regulations to address matters related to public safety, nuisance and damage on and around wharves, boat ramps and similar structures under the control of Auckland Council.

iii) approve allowing the Auckland Council Wharves Bylaw 2015 to lapse on 29 October 2022.

Horopaki

Context

Council’s bylaw about wharves aims to address safety risks, nuisance and damage

8. The Auckland Council Legacy Provisions on Wharves Bylaw 2015 was adopted by the Governing body on 15 October 2015 (GB/2015/113 and GB/2020/116).

9. The Bylaw aims to protect, manage and reduce public safety risks, nuisance and damage to wharves, boat ramps and similar structures (wharves) in the former Auckland City and Rodney District.

The Bylaw expires in October 2022 and must be replaced if still needed

10. The Bylaw will expire on 29 October 2022. If a new bylaw is needed, council must determine that a new bylaw meets legislative criteria and decide whether to adopt the new bylaw following public feedback. Alternatively, council can propose to revoke the current Bylaw or allow it to lapse.

Staff prepared a report to help determine whether a bylaw is still needed

11. To assist the committee on deciding whether the Bylaw is still required staff engaged with technical experts and carried out a detailed analysis of the Bylaw to prepare a findings report (Attachment A). Staff have assessed options in response to the findings in this report.

Tātaritanga me ngā tohutohu

Analysis and advice

There are wider public safety, nuisance and damage problems

12. Auckland Council receives complaints about public safety, nuisance and damage in public places. Data limitations however mean that complaints data in relation to wharves is rare and are more likely recorded against the park that these facilities form part of (rather than the Bylaw).

13. The 2018 review of the Auckland Council Public Safety and Nuisance Bylaw 2013 for example identified damage, obstruction and nuisance behaviours to still be issues on council controlled public places requiring a bylaw response (Resolution numbers REG/2018/15, REG/2018/20, REG/2018/38 and REG/2018/43).

The Bylaw is no longer needed

14. The Bylaw is narrow in scope, the Bylaw:

· only applies to council wharves, boat ramps and similar structures in the former Auckland City and Rodney District

· does not apply to the Auckland transport system for transport-related purposes or private wharves

15. The Bylaw is not used. Council staff currently rely on other existing regulations, including other Auckland Council bylaws, Fisheries Act and Land Transport (Road User) Rule.

Statutory options include allowing the Bylaw to lapse or revoking the Bylaw

16. Staff have identified two options in response to the above findings:

· Option one: Do nothing – continue to rely on other existing regulations and allow the Bylaw to lapse on 29 October 2022 (recommended)

· Option two: Rely on existing regulations and revoke the Bylaw prior to 29 October 2022.

17. Other statutory options were identified but not assessed further:

· status quo (continuation of the current Bylaw) is not an option because it expires on 29 October 2022

· amending the Bylaw is not an option because it expires on 29 October 2022

· replacing the Bylaw with a new Bylaw is not appropriate because the matters are already appropriately addressed in other existing regulations and would result in unnecessary duplication and regional inconsistency.

18. Staff assessed each option against assessment criteria that reflect the core objective to protect, manage and reduce public safety risks, nuisance and damage to wharves, boat ramps and similar structures (wharves) in the former Auckland City and Rodney District, as well as council’s statutory duties under the Local Government Act 2002.^{^[1]}

Table 1: Summary of assessment of options

	Option one (allow Bylaw to lapse)	Option two (revoke Bylaw)
Implementation	· Public notice of decision, update staff and collateral information. · Bylaw lapse 29 October 2022. · Council would continue to use other existing regulations to address matters in the Bylaw.	· Commence a public consultative process, including adoption of a proposal, public notification, feedback and deliberations before making a final decision. · Bylaw revoked as early as April 2022. · Council would continue to use other existing regulations to address matters in the Bylaw.
Pros	· Removal of unnecessary regulation · Decision-making is transparent (albeit at a minimum level). · Requires minimal resource (people, time and cost).	· Removal of unnecessary regulation. · Decision-making is transparent (to the same level as the making or amendment of a bylaw).
Cons	· Does not allow for public feedback prior to making a final decision.	· Requires moderate resource (people, time and cost).
Risks	· Council is perceived as not providing transparent decision making as there would be no consultation to remove the Bylaw. · Mitigation through effective communication on internet and with customers about use of other existing regulations. · Low risk as the Bylaw is not used.	· Council is perceived to be wasting resource and residents time in consulting on revoking a Bylaw that duplicates other existing regulations and is not used. · Risk would need to be accepted, revoking the Bylaw clause must follow a public consultative process. · Medium risk as consultation would raise awareness.
Effectiveness	ü Would remove unnecessary regulation. ü Council would continue to respond to complaints on or near wharves in the same way it currently does.	ü Would remove unnecessary regulation. ü Council would continue to respond to complaints on or near wharves in the same way it currently does.
Efficiency	ü Would require minimal council resource and avoid unnecessary public consultation.	û Would require moderate council resource and arguably unnecessary public consultation.

19. Staff recommend Option one to continue to rely on other existing regulations and allow the Bylaw to lapse on 29 October 2022. This option would:

· not change how council responds to complaints on wharves if they arise

· remove regulations that are not used and duplicate other existing regulatory tools

· avoid unnecessary consultation with the public and council resource.

Tauākī whakaaweawe āhuarangi

Climate impact statement

20. The preferred option one for the future of the Bylaw does not create climate change impact outside staff action to implement the decision.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

21. Operational staff commented that the Bylaw has not been used and is no longer required. Enforcement officers rely on other existing regulations and practices to addresses problems the Bylaw seeks to address.

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

Local impacts and local board views

22. The Bylaw was assessed to have low community interest. Bylaws that are of low community interest do not require local board engagement at the findings or options stage.

23. There should be no adverse impacts to local boards by allowing the Bylaw to lapse as it is no longer used. Existing regulations, including other Auckland Council bylaws, Fisheries Act and Land Transport (Road User) Rule are being used to manage the issues instead.

Tauākī whakaaweawe Māori

Māori impact statement

24. The proposal supports the Independent Māori Statutory Board’s Māori Plan for Tāmaki Makaurau and Schedule of Issues of Significance 2021-2025 in terms of linking to Manaakitanga (improving quality of life) generally.

25. There should be no adverse impacts to Māori by allowing the Bylaw to lapse as it is no longer used. Existing regulations, including other Auckland Council bylaws, Fisheries Act and Land Transport (Road User) Rule are being used to manage the issues instead.

Ngā ritenga ā-pūtea

Financial implications

26. There are no financial implications arising from this decision. Any costs associated with the decision are accommodated within existing budget.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

27. The following risks have been identified:

If …	Then …	Mitigation	Risk level
Council decides to let the Bylaw lapse (recommended option)	Council could be perceived as not providing transparent decision making as there would be no consultation to remove the Bylaw.	Effective communication on internet and with customers about use of other existing regulations.	Low risk, as the Bylaw is not used.

Ngā koringa ā-muri

Next steps

28. The Regulatory Committee recommendation will be considered by the Governing Body at the next meeting. Staff will implement the Governing Body decision including public notification and any required public engagement.

Ngā tāpirihanga

Attachments

No.	Title	Page
a ⇩	2021 Review Findings report	17

Ngā kaihaina

Signatories

Author

Kylie Hill – Senior Policy Advisor

Authorisers

Paul Wilson - Senior Policy Manager

Kataraina Maki – General Manager - Community and Social Policy

Craig Hobbs - Director Regulatory Services

Regulatory Committee

14 September 2021

Review findings and options for the Legacy Bylaw Provisions for Construction in Public Places 2015

File No.: CP2021/13380

Te take mō te pūrongo

Purpose of the report

1. To agree the outcome of the review of the Auckland Council Legacy Bylaw Provisions on Construction in the Road Corridor and Other Public Places 2015 (Bylaw) and to decide whether to allow the Bylaw to lapse.

Whakarāpopototanga matua

Executive summary

2. To enable the Regulatory Committee to complete the review of the Bylaw and decide whether to allow it to lapse, staff have completed a findings report (Attachment A) and assessed options.

3. The scope of the Bylaw review is limited to construction related activity on public places under Auckland Council control. Auckland Transport is responsible for rules about construction activities on the Auckland transport system for transport-related purposes.

4. The key findings of the review are:

· organisational awareness of the Bylaw is low. There is no evidence of Auckland Council ever implementing the legacy provisions

· the Auckland Unitary Plan and existing legislation already regulate construction in public places, and the Bylaw provides no additional regulation

· the Bylaw is no longer required to address the construction related issues in public places

· the bylaw no longer the most appropriate way to protect public health, safety, property and the environment from construction related activities.

5. Staff identified the two options to address these findings:

· Option one: Do nothing – continue to rely on other existing regulations and allow the Bylaw to lapse on 29 October 2022 (recommended)

· Option two: Rely on existing regulations and revoke the Bylaw prior to 29 October 2022 using the special consultative procedure.

6. Staff recommend Option one to allow the Bylaw to lapse, as it:

· would not change how council responds to any problems that arise

· is redundant under the current legislative and regulatory framework

· removes duplication and inconsistencies with new legislation and regulations

· requires the least amount of council resource

· avoids unnecessary public consultation on legacy provisions that are no longer used and for problems already addressed in other existing regulations.

7. There is low risk of public concern about the lack of transparent decision-making in allowing the Bylaw to expire. The risk can be mitigated through effective communication to the public and customers about the use of other regulatory tools.

8. If the Committee and Governing Body approve the recommended option Option one, staff will publicly notify the decision, inform staff, and update the council website.

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a) agree that the Auckland Council Legacy Bylaw Provisions on Construction in the Road Corridor and Other Public Places 2015 is no longer the most appropriate way to protect public health, safety, property and the environment from construction related activities on public places under the control of Auckland Council.

b) agree that option one (rely on other existing regulations and allow the Bylaw to lapse) as detailed in this agenda report is the preferred option to address the matters in a).

c) recommend the Governing Body:

i) confirm that the Auckland Council Legacy Bylaw Provisions on Construction in the Road Corridor and Other Public Places 2015 is no longer the most appropriate way to protect public health, safety, property and the environment from construction related activities on public places under the control of Auckland Council.

ii) approve continuing to rely on other existing regulations to address matters related to public health, safety, property and the environment from construction related activities on public places under the control of Auckland Council.

iii) approve allowing the Auckland Council Legacy Bylaw Provisions on Construction in the Road Corridor and Other Public Places 2015 to lapse on 29 October 2022.

Horopaki

Context

The Bylaw aims to protect the public, property and environment from construction activity

9. Auckland Council inherited six legacy Construction in Public Places Bylaws when it was established on 01 November 2010:

Auckland City Council (ACC) Bylaws: Bylaw No. 6 - Construction 2008	Manukau City (MCC) Consolidated Bylaw 2008: Chapter 5 Construction, Development, Street Damage and Vehicle Crossings	North Shore City Council (NSCC) Bylaw 2000: Part 13 Construction and Scaffolding
		North Shore City Council Bylaw 2000: Part 2 Public Places
Franklin District Council (FDC) Public Places Bylaw 2007	Rodney District Council (RDC) General Bylaw 1998: Chapter 9 (Road Crossings and Numbering of Premises)	Papakura District Council (PDC) Public Places Bylaw 2008

10. To prevent a regulatory gap, the Governing Body confirmed the legacy bylaws into the Auckland Council Legacy Bylaw Provisions on Construction in the Road Corridor and Other Public Places 2015 (refer to Attachment B) on 29 October 2015 (GB/2015/112 and GB/2020/116).

11. The scope of the Bylaw is limited to construction related activity on public places under Auckland Council control. Auckland Transport is responsible for rules about construction activities on the Auckland transport system for transport-related purposes.

12. The Bylaw aims to control a range of construction and maintenance related activities on sites bordering public places or connecting to infrastructure.

13. The Bylaw provisions remain in force of the six legacy council areas to which they previously applied. This means there are inconsistent rules between areas.

14. Table 1 below shows issues regulated in the six legacy council areas:

Table 1: Issues regulated in six legacy council areas

Issues covered	Legacy Council provisions by age
Issues covered	RDC 1998	2x NSCC 2000	FDC 2007	MCC 2008	PDC 2008	ACC 2008
General construction activity	ü	ü		ü		ü
Scaffolding, gantries, hoardings		ü				ü
Verandas, balconies, awnings		ü				ü
Projections over public places				ü^{^[2]}		ü
Sewers & Drains						ü
Crane, hoists and lifting						ü
Excavation		ü		ü^{^[3]}		ü
Run-off						ü
Nuisance^{^[4]}	ü	ü				ü
Demolition		ü				ü
Damage deposit & Insurance	ü	ü		ü		ü
Vehicle crossings	ü	ü	ü	ü	ü	ü
Construction impact plan		ü^{^[5]}

The Bylaw expires in 2022 and there are statutory requirements if a bylaw is still needed

15. The Bylaw will expire on 29 October 2022. To avoid a regulatory gap, council must determine whether a bylaw is still needed, and (if a Bylaw is necessary) adopt a new bylaw before the date.

16. Any new bylaw must be well-drafted, meet the requirements of the New Zealand Bill of Rights Act 1990, Local Government Act 2002 and Local Government (Auckland Council) Act 2009 and be adopted using a public consultative process.

17. If the Bylaw is no longer required, council can decide to let the Bylaw lapse or revoke it using a public consultative process.

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

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

· staff engaged with a range of stakeholders and carried out research in mid-2021 to prepare a findings report on the review of the Bylaw (Attachment A)

· staff then conducted an options analysis that responds to the findings.

Tātaritanga me ngā tohutohu

Analysis and advice

Construction related activity still creates issues

19. Construction activity in Auckland is essential, increasing and poses risks to public safety, of property damage and nuisance. There are several key indicators of this.

20. The region’s population is projected to grow with an anticipated increase of 833,000 people between 2013 – 2043. The aim is to distribute between 60 and 70 per cent of Auckland’s growth within the existing urban area through more intensive development.

21. A further 25 per cent of growth will be in greenfield developments, and the remainder in rural areas and settlements. With plan-enabled capacity increase sourced through infill and re-development opportunities.

22. Health and safety reporting has been increasing with increasing sector activity. Between 2017 – 2019 construction sector concerns recorded by WorkSafe New Zealand increased by 25 per cent.

23. From January 2018 – May 2020, 18,522 complaints recorded related to construction activities. 142 complaints (less than one per cent) relate to issues that could be regulated using the Bylaw. Complaints’ resolution information indicates other mechanisms are used.

The strategic and regulatory framework has changed

24. Since the Bylaw was adopted the strategic and legislative and regulatory framework has changed significantly.

25. The Unitary Plan, the Health Safety at Work Act, the Building Act and Code and Reserves Act and existing bylaws have the same intent as the Bylaw and are more fit for purpose.

26. Local issues are now addressed through co-governance with 21 local boards.

Bylaws controlling same issues and activities on public places under council control

A bylaw about construction in public places is no longer needed

27. There is low to no awareness of the Bylaw and its provisions across relevant stakeholders.

28. Staff do not use the Bylaw for consenting, compliance and enforcement purposes. Other legislation and regulations including other Auckland Council bylaws are used instead.

29. A new bylaw is therefore not appropriate or necessary to address current or emerging issues. New issues will be addressed through ongoing reforms to national legislation, plan changes and bylaw reviews.

Other regulatory tools address all issues

Statutory options include allowing the Bylaw to lapse or to revoke the Bylaw

30. Staff identified two options in response to the above findings:

· Option one: Do nothing – continue to rely on other existing regulations and allow the Bylaw to lapse on 29 October 2022 (recommended)

· Option two: Rely on existing regulations and revoke the Bylaw prior to 29 October 2022 using the special consultative procedure.

31. Other statutory options were identified but not assessed further:

· status quo (continuation of the current Bylaw) is not an option because it lapses on 29 October 2022

· amending the Bylaw is not an option because it expires on 29 October 2022

· replacing the Bylaw with a new bylaw is not appropriate because the matters are already appropriately addressed in other existing regulations and would result in unnecessary duplication and regional inconsistency.

32. Staff assessed the options against implementation requirements and council’s statutory duties under the Local Government Act 2002.^{^[6]}

Table 2: Assessment of options

	Option one: Do nothing (allow Bylaw to lapse) (Recommended)	Option two: (revoke Bylaw)
Implementation	· Public notice of decision, update staff and council website. · Bylaw lapse 29 October 2022. · Council would continue to use other existing regulations to address matters in the Bylaw (rather than the Bylaw).	· Commence a public consultative process, including adoption of a proposal, public notification, feedback and deliberations before making a final decision. · Bylaw revoked as early as April 2022. · Council would continue to use other existing regulations to address matters in the Bylaw.
Pros	· Removal of unnecessary regulation (Bylaw no longer used or fit for purpose - other legislation and regulation are used to address issues) · Requires minimal resource (people, time and cost).	· Removal of unnecessary regulation · Decision-making is transparent (equivalent to making or amending a bylaw).
Cons	· Does not allow for public feedback prior to making a final decision.	· Requires moderate resource (people, time and cost). · Is likely to be of very low public interest (assessed as low significance) · Limited benefit as it would take till April to complete the consultation process and revoke the Bylaw (rather than letting the Bylaw lapse in October)
Risks	· Low risk that Council is perceived as not providing transparent decision making as there would be no consultation on letting the Bylaw lapse. · Mitigation through effective communication on internet and with customers about use of existing legislation and regulations. · Low risk as the Bylaw is not used.	· Low risk that Council could be criticized for wasting resource and residents time in consulting on revoking a Bylaw that is not used or required.
Effectiveness	ü Would remove unnecessary regulation. ü Council would continue to respond to complaints / regulate issues relating to construction activity using other legislation and regulation as it currently does.	ü Would remove unnecessary regulation. ü Council would continue to respond to complaints / regulate construction issues using other legislation and regulation as it currently does.
Efficiency	ü Would require minimal council resource and avoid unnecessary public consultation.	û Would require council resource and unnecessary public consultation on an issue of low significance and low public interest.

Option one: Do nothing

(allow Bylaw to lapse) (Recommended)

Option two:

(revoke Bylaw)

Implementation

· Public notice of decision, update staff and council website.

· Bylaw lapse 29 October 2022.

· Council would continue to use other existing regulations to address matters in the Bylaw (rather than the Bylaw).

· Commence a public consultative process, including adoption of a proposal, public notification, feedback and deliberations before making a final decision.

· Bylaw revoked as early as April 2022.

· Council would continue to use other existing regulations to address matters in the Bylaw.

Pros

· Removal of unnecessary regulation (Bylaw no longer used or fit for purpose - other legislation and regulation are used to address issues)

· Requires minimal resource (people, time and cost).

· Removal of unnecessary regulation

· Decision-making is transparent (equivalent to making or amending a bylaw).

Cons

· Does not allow for public feedback prior to making a final decision.

· Requires moderate resource (people, time and cost).

· Is likely to be of very low public interest (assessed as low significance)

· Limited benefit as it would take till April to complete the consultation process and revoke the Bylaw (rather than letting the Bylaw lapse in October)

Risks

· Low risk that Council is perceived as not providing transparent decision making as there would be no consultation on letting the Bylaw lapse.

· Mitigation through effective communication on internet and with customers about use of existing legislation and regulations.

· Low risk as the Bylaw is not used.

· Low risk that Council could be criticized for wasting resource and residents time in consulting on revoking a Bylaw that is not used or required.

Effectiveness

ü Would remove unnecessary regulation.

ü Council would continue to respond to complaints / regulate issues relating to construction activity using other legislation and regulation as it currently does.

ü Would remove unnecessary regulation.

ü Council would continue to respond to complaints / regulate construction issues using other legislation and regulation as it currently does.

Efficiency

ü Would require minimal council resource and avoid unnecessary public consultation.

û Would require council resource and unnecessary public consultation on an issue of low significance and low public interest.

33. Staff recommend Option one (Do nothing – continue to rely on other existing regulations and allow the Bylaw to lapse), as it:

ü would not change how council responds to any problems that arise

ü is redundant under the current legislative and regulatory framework

ü removes duplication and inconsistencies with new legislation and regulations

ü requires the least amount of council resource

ü avoids unnecessary public consultation on legacy provisions that are no longer used and for problems already address in other existing regulations.

Tauākī whakaaweawe āhuarangi

Climate impact statement

34. There are no climate change impacts associated with allowing the Bylaw to lapse or to revoke the Bylaw outside of staff actions to implement the decision.

35. The council considers Tāwhiri-ā-Tāruke: Auckland’s Climate Plan as part of construction activities. This includes ensuring the location of development reduces car dependency and that construction related activities are energy efficient and emissions are mitigated.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

36. Operational staff commented that the Bylaw has not been used since 2015 and is no longer required. Enforcement officers use the Unitary Plan and other mechanisms to address construction related issues. These allow staff to issue abatement notices and infringement notices, which are more effective and efficient than the powers issues to council under the Local Government Act 2002 to enforce the bylaw.

37. Staff collaborated with Auckland Transport to inform the review, findings and options. Through this process staff confirmed that the vast majority of the issues addressed in the Bylaw are related to the Auckland transport system and transport related matters (e.g., pedestrian safety or construction on or next to the transport system).

38. These matters may justify regulation through an Auckland Transport bylaw that addresses issues on the Auckland Transport system.

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

Local impacts and local board views

39. The Bylaw was assessed to have low community interest. Bylaws that have low community interest do not require local board engagement at the findings or options stage.

40. There should also be no substantive impact from allowing the Bylaw to lapse or be revoked as the Bylaw is not used and other regulatory tools and methods are currently used to manage construction related issues.

Tauākī whakaaweawe Māori

Māori impact statement

41. The Bylaw’s purpose has relevance to Māori as kaitiaki of Papatūānuku.

42. Allowing the Bylaw to expire will not reduce effective mechanisms to achieve and support the Independent Māori Statutory Board’s Māori Plan for Tamaki Mākaurau or issues of significance.

43. Other existing regulatory tools fulfil the same purpose as the Bylaw and support the Māori Plan, in particular the focus area of Manaakitanga (improve quality of life) by:

· valuing and protecting Māori heritage and Taonga Māori

· including opportunities for Māori to participate in decision-making policies and outcomes regarding improving water quality

· enabling Māori to benefit from community facilities to promote and participate in community activities and events

· protecting Māori and Tāmaki Makaurau’s build and natural environments from the potential damage related to construction activities.

44. There should also be no substantive impact on Māori from allowing the Bylaw to lapse or be revoked as the Bylaw is not used and other regulatory tools and methods are currently used to manage construction related issues.

Ngā ritenga ā-pūtea

Financial implications

45. There are no financial implications arising from this decision. Any public notification and engagement costs are provided within existing budget.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

46. The following risks have been identified:

If…	Then…	Mitigation	Risk Level…
Council decides to allow the Bylaw to lapse.	Council could be perceived as not providing transparent decision making as there would be no public consultation to remove the Bylaw.	Through effective communication on the internet.	Low risk, as the Bylaw is of low significance, there is low awareness, it is not enforced and other regulatory and legislation prevents regulatory gaps.

Ngā koringa ā-muri

Next steps

47. The Regulatory Committee recommendation will be considered by Governing Body at its next meeting. Staff will implement the decision through public notification of the decision and undertake any required public engagement.

Ngā tāpirihanga

Attachments

No.	Title	Page
a ⇩	2021 Review Findings Report	73
b ⇩	Legacy Bylaw Provisions on Construction in the Road Corridor and Other Public Places	99

Ngā kaihaina

Signatories

Authors

Dorothee Guthrie - Policy Advisor

Kylie Hill - Senior Policy Advisor

Stacey Benioni - Graduate Policy Advisor

Authorisers

Pania Elliot - Policy Manager, Policy Hub

Kataraina Maki – General Manager - Community and Social Policy

Craig Hobbs - Director Regulatory Services

Regulatory Committee

14 September 2021

Proposal to amend the Property Maintenance and Nuisance Bylaw 2015

File No.: CP2021/12923

Te take mō te pūrongo

Purpose of the report

1. To recommend that the Governing Body adopt a proposal to amend the Te Kaunihera o Tāmaki Makaurau Te Ture ā-rohe Tiaki Rawa me Ngā Mahi Whakapōrearea 2015 / Auckland Council Property Maintenance and Nuisance Bylaw 2015 for public consultation and appoint a Bylaw Panel.

Whakarāpopototanga matua

Executive summary

2. The Regulatory Committee requested amendments to the Property Maintenance and Nuisance Bylaw 2015 in August 2021 (REG/2021/50).

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

4. The Bylaw continues to enable council to regulate property maintenance in order to minimise public health risks and nuisance. The amendments comply with statutory requirements, are appropriate and not inconsistent with key legislation.

5. The main amendments are to:

· remove rules about the feeding of animals on private property as these are more appropriately addressed in the Animal Management Bylaw 2015

· remove rules about lighting and revocations because lighting rules are now regulated in the Auckland Unitary Plan and legacy bylaws were revoked in 2015

· update the definitions, structure, format and wording of the Bylaw to make it easier to read and understand.

6. 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, including online or by phone and at Bylaw Panel deliberations.

7. Adoption of the proposal will start the statutory process to amend the Bylaw. Public consultation is scheduled from October to November 2021. A Bylaw Panel will consider any public feedback, deliberate, and make recommendations to the Governing Body in March 2022. A final decision is expected to be made in April 2022.

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a) note that this committee completed the review of the Auckland Council Property Maintenance and Nuisance Bylaw 2015 in September 2020 and determined that a bylaw regarding property maintenance is still the most appropriate way to help minimise public health risks and nuisance caused by poorly maintained private property.

b) recommend the Governing Body adopt the Statement of Proposal in Attachment A of this agenda report for public consultation and confirm the proposed Te Kaunihera o Tāmaki Makaurau Te Ture ā-rohe Tiaki Rawa me Ngā Mahi Whakapōrearea 2015 / Auckland Council Property Maintenance and Nuisance Bylaw 2015:

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 local boards this agenda report and attachments for their information.

d) recommend the Governing Body delegate authority through the Chief Executive to a manager responsible for bylaws to make any amendments to the Statement of Proposal in Attachment A of this agenda report to correct errors, omissions or to reflect decisions made by the Regulatory Committee or the Governing Body.

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, deliberate and make recommendations to the Governing Body on public feedback to the Statement of Proposal in Attachment A of this agenda report.

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 Statement of Proposal in Attachment A of this agenda report to correct errors, omissions or to reflect decisions made by the Regulatory Committee.

Horopaki

Context

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

9. The Bylaw seeks to help minimise public health risks and nuisance by setting out:

· general rules about property maintenance (overgrown vegetation, deposited materials, abandoned buildings and feeding of wild animals)

· obligations for owners of industrial cooling water tower systems.

10. The Bylaw aligns with strategic directions in the Auckland Plan 2050, including reducing risks to public health and minimise nuisance in increasingly intensified residential areas.

11. The Bylaw is one part of a wider regulatory framework that includes the following:

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

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

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

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

The proposal is the outcome of a statutory review of the Bylaw

12. The Regulatory Committee requested staff to commence the process to amend the Bylaw on 17 August 2021 (REG/2021/50). This decision followed the completion of a statutory bylaw review under the Local Government Act 2002^{^[7]}, including consideration of findings and options.

13. Council must use the special consultative procedure to amend the Bylaw, including to^{^[8]}:

· 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.

14. The process to review and amend the Bylaw is shown in the diagram below.

Property Maintenance and Nuisance Bylaw Review and Amendment Process

Tātaritanga me ngā tohutohu

Analysis and advice

The proposal improves rules about property maintenance and nuisance

15. The Statement of Proposal (Attachment A) implements the committee’s decision to make amendments. The table below summarises the main proposals.

Main proposals	Reasons for proposals
Remove rules about the feeding of animals on private property.	· to streamline rules about animals into a single bylaw (the Auckland Council Animal Management Bylaw 2015).
Remove unnecessary rules about lighting and revocations	· lighting rules are now regulated in the Auckland Unitary Plan · legacy bylaws were revoked in 2015.
Update the Bylaw definitions, structure, format and wording.	· to make the Bylaw easier to read and understand, for example to: o clarify the definition of ‘nuisance’ o better align the Bylaw structure, format and wording with current drafting practices. .

16. The proposal does not make any change to industrial cooling tower water system rules. The committee requested that cooling tower rules be clarified and frequency of registration and maintenance be reviewed. Staff after further consultation with the Auckland Regional Public Health Service recommend that the continuation of the current rules would better minimise public health risks and protect the public.

The proposal complies with statutory requirements and current drafting practices

17. The proposed Bylaw amendments have been prepared in accordance with statutory requirements to:

· help minimise public health risks and nuisance from poorly maintained private property

· use a structure, format and words that are easier to read and understand that meet council bylaw drafting standards

· be authorised by statute, not repugnant to other legislation and not be unreasonable

· not give rise to any implications and not be inconsistent with the New Zealand Bill of Rights Act 1990.

Staff recommend the committee commence the process to amend the Bylaw

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

19. The committee is requested to 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.

20. It is also recommended that staff be delegated authority to receive public feedback at ‘Have Your Say’ events as appropriate or in the case of panel member being unable to attend.

Tauākī whakaaweawe āhuarangi

Climate impact statement

21. There are no climate change impacts arising from the decisions to this report outside of staff action to implement decisions and undertake public engagement. Electric vehicle use and virtual tools help mitigate staff impact.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

22. The proposal impacts council’s Regulatory Compliance team who enforce the Bylaw and council’s Building consents team who administer rules about industrial cooling tower water systems. These 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

23. Under the agreed principles and processes for Local Board Involvement in Regional Policy, Plans and Bylaws 2019, the Bylaw has been assessed as low interest and no impact on local governance for local boards. The Bylaw regulates activities on private property and received low levels of public feedback in the last review from 36 persons.Interested local boards will have an opportunity to provide their views on public feedback to the proposal formally by resolution to the Bylaw Panel in February 2022.

Tauākī whakaaweawe Māori

Māori impact statement

24. The proposal supports the Independent Māori Statutory Board’s Māori Plan for Tāmaki Makaurau and Schedule of Issues of Significance 2021-2025 in terms of Manaakitanga (improving quality of life) generally. However, two hui with Māori and a review of key documents have not identified specific or additional impacts on Māori in relation to the relatively narrow scope of the Bylaw.

25. Mana whenua and mataawaka will be invited to provide feedback on the proposal during public consultative process.

Ngā ritenga ā-pūtea

Financial implications

26. There are no financial implications arising from decisions to this report. Costs associated with the special consultative procedure will be met within existing budgets.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

27. The following risks have been identified:

If...

Then...

Mitigation

The proposal does not reflect the views of the public or a COVID-19 outbreak prevents in-person public consultation.

There may be negative comments to council about its consultation on the Bylaw amendments.

Public opportunity to provide feedback, including online or by phone.

Bylaw Panel deliberations on feedback, including recommending changes to the proposal before a final decision is made.

Ngā koringa ā-muri

Next steps

28. The Governing Body will decide whether to adopt the proposal for public consultation in September 2021. Public feedback will be sought and considered by the Bylaw Panel. A final decision will be made by the Governing Body in April 2022 (refer to the diagram in Context).

Ngā tāpirihanga

Attachments

No.	Title	Page
a ⇩	Statement of Proposal to amend the Auckland Council Property Maintenance and Nuisance Bylaw 2015	153

Ngā kaihaina

Signatories

Author

Bayllee Vyle - Policy Advisor

Authorisers

Paul Wilson - Senior Policy Manager

Kataraina Maki – General Manager - Community and Social Policy

Craig Hobbs - Director Regulatory Services

No.	Title	Page
a ⇩	Current Resource Consent Appeals as at 1 September 2021	219

No.	Title	Page
a ⇩	Forward Work Programme	233
b ⇨	Public Trading, Events and Filming Bylaw 2022 progress update - memo (Under Separate Cover)
c ⇨	Animal Management Bylaw progress update - memo (Under Separate Cover)

Regulatory Committee

14 September 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
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				ü
Boarding Houses Inspection Licensing & Regulatory Compliance	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
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.
Objection hearings under section 181 of the Local Government Act	The committee hears and determines objections to proposed stormwater works on private properties pursuant to section 181 of the Local Government Act 2002	Decision on whether the council can proceed with works on the public stormwater network on private land. Hearings will be undertaken by the committee as the need arises.
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 Decision report 17 August 2021 Link to decision							ü
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 Decision report 17 August 2021 Link to decision			ü				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 Decision report 17 August 2021 Link to decision		ü					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	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

14 September 2021

Objection to stormwater works at 45 Ridge Road, Howick

File No.: CP2021/12842

Te take mō te pūrongo

Purpose of the report

1. To hear and determine an objection to proposed stormwater works at 45 Ridge Road, Howick pursuant to section 181 of the Local Government Act 2002.

Whakarāpopototanga matua

Executive summary

2. A developer has obtained approval from the council to connect a new development at 43 Ridge Road, Howick to the public stormwater manhole that is located on the neighbouring property at 47 Ridge Road, Howick.

3. The proposed works involve the construction of 20-metre length pipe which will run alongside the northern boundary of 47 and 45 Ridge Road to enable 43 Ridge Road to connect to the public network (see Attachment A – Engineering Planning Approval). The work is estimated to take up to five days. Once constructed, this pipe will be vested in the council as a public stormwater asset.

4. The owner of 45 Ridge Road has refused the developer access to its property for this purpose. Council-led efforts to facilitate an agreement have been unsuccessful.

5. Auckland Council staff have analysed four options for connecting the development to the public stormwater network. These included extending the public network from 47 Ridge Road (option one – recommended), extending the public network from an existing manhole on 45 Ridge Road (option 2), pumping stormwater to the road (option 3) and extending the public network from via 5 Castleton Drive (option four).

6. The options were assessed against various criteria such as disruption to homeowners, the impact on private land development potential, interference with existing services and constructability risk. Option one scored best against these criteria.

7. 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 landowner of its intention to construct the works as a council project.

8. The landowner has lodged a written objection to the works, on the grounds that the construction of the stormwater pipe will affect their future development on their property at 45 Ridge Road (see Attachment B – Objection Letter).

9. If the Regulatory Committee determines that the works should proceed, construction will begin in late October 2021 (weather dependent). It is proposed that the pipe will be installed by horizonal directional drilling, which is a trenchless methodology designed to minimise disruption to the impacted properties.

10. This report recommends that the Regulatory Committee endorse the proposed public stormwater works at 45 Ridge Road, Howick to manage the stormwater effects of the approved development at 43 Ridge Road, Howick.

11. It has been explained to the affected property owner that it has 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 owner of 45 Ridge Road according to clause 1(e) of Schedule 12 of the Local Government Act 2002.

b) resolve that the council will proceed with the extension of the public stormwater network from 47 Ridge Road across 45 Ridge Road (as shown in Attachment A to the agenda report), according to clause 1(e) of Schedule 12 of the Local Government Act 2002.

Horopaki

Context

12. 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.

13. 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’.

14. 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.

15. 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.

16. 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 43 Ridge Road

17. A developer has been granted resource consent by Auckland Council’s regulatory department to subdivide a property at 43 Ridge Road, Howick. A condition of that resource consent is that the new development connects to the public stormwater system.

18. The developer has obtained engineering approval to connect the subdivision to the existing public stormwater located within 47 Ridge Road (see Attachment A). The connecting pipe will cross under the back garden of 47 and 45 Ridge Road to enable 43 Ridge Road to connect to the public network. 47 Ridge Road has consented to these works on its land.

19. It is proposed that a 20-metre length pipe is constructed using a directional drilling method, which involves drilling a small hole from 43 Ridge Road, then pushing the pipe underground through to the new manhole located on 47 Ridge Road. This method would involve excavations taking place on 47 Ridge Road only for installing the manhole, as well as for constructing a ‘drill pit’ to connect the pipe to the manhole. No excavations or disturbance are required to take place on 45 Ridge Road. The work is expected to take five days.

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

Objections received from landowners at 45 Ridge Road.

21. The owner of 45 Ridge Road, Howick has 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 landowner.

22. Facilitation sessions commenced in March 2021 with the parties working together via a third party mediator, however no agreement was reached. The council then analysed the developer’s works (as detailed below) and determined that the works are necessary public works, and that it would undertake the works as a council project under the powers of the Local Government Act 2002. This enables public works to be undertaken on private land without the owner’s consent, provided the requirements of the Act are met.

23. The council issued a notice of their intention to construct the works to the affected landowner under section 181 of the Local Government Act 2002 on 30 June 2021.

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

25. Pursuant to schedule 12 of the Local Government Act 2002, the landowner had until 30 July 2021 to formally object to the section 181 notice. On 26 June 2021 an objection was received – see Attachment B.

26. The basis of the objection is that the works will impact the development potential of 45 Ridge Road.

Tātaritanga me ngā tohutohu

Analysis and advice

27. 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, to carefully balance any impacts on individual property owners.

28. The council analysed four alternative alignments for connecting the development at 43 Ridge Road to the public stormwater system (see Attachment C).

29. These options were:

· option one: extending the public network from 47 Ridge Road (recommended option)

· option two: extending the public network from the manhole located on 45 Ridge Road

· option three: extending the public network by pumping to Ridge Road

· option four: extending the public network from 5 Castleton Drive.

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

Table 1. Analysis of alignment options against various criteria

	Option one Across boundary 45 and 47 Ridge (shown in yellow) *Recommended option*	Option two Manhole on 45 Ridge Road (shown in blue)	Option three Pumping to Ridge Road (as shown in green)	Option four Via 5 Castleton Drive (as shown in purple)	Significance
Interference with existing services	Minor – wastewater line to be avoided	None	None	None	Medium
Disruption to property owners	Minor	Minor	None	Medium – close to existing structures	High
Cost	$	$	$$	$$	Medium
Route to existing stormwater network	Less direct 20m	Most direct 11.8m	Least direct 39m	Less direct 23m	Low
Ability for third-party properties to connect to proposed infrastructure	Good	Limited	Limited	Good	Low
Access for future maintenance	Good	Good	Good	Restricted	Medium
Duplication of existing stormwater infrastructure	10%	0%	100%	50%	Medium
Impact on development potential	Minor	Medium	None	Minor	Medium
Constructability risk	Minor	Minor	Minor	High	High
Compliance with Stormwater Code of Practice	Yes	Yes	No	Yes	High

Analysing options for stormwater management on 43 Ridge Road, Howick

31. Option two is not recommended as the alignment would have a greater impact on the future development potential of 45 Ridge Road, especially where there is an option to construct the pipe nearer to the boundary of 45 Ridge Road.

32. Option three is not recommended as it would involve pumping water uphill in contravention of the stormwater code of practice. The option would also duplicate existing stormwater infrastructure.

33. Option four is not recommended as there is a high constructability risk with the existing structure on 5 Castleton Drive being located close the boundary.

34. The council also considered a fifth 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 three or four. As described above, these options would mean the council inherits surplus stormwater infrastructure which it has to maintain as part of the public network, and which does not comply with the Stormwater Code of Practice. It also increases the likelihood of 45 Ridge Road discharging to the kerb in lieu of a better solution and in contravention of its resource consent.

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

· the route does not interfere with any existing services

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

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

· the route does not duplicate existing stormwater infrastructure

· construction will allow 43 Ridge Road to be developed which contributes to Auckland’s growth and need for housing.

36. 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 45 Ridge Road.

Negotiating with the landowners

37. Negotiations with the landowner has been ongoing since September 2020. Initially negotiations were held directly between the developer and the landowner, with the council becoming involved from March 2021 onwards.

38. The council has attempted to engage with the landowner to offer advice on the proposed works and broker an agreement.

39. Following receipt of the objection letter the council via an independent mediator has continued to engage with the landowner and work towards agreeing terms of access which would see the concerns of the landowner taken into account and access granted to the owner of 45 Ridge Road. To date an agreement for access has not been reached.

Summary of objections received

40. Table 2 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

Limit future development potential

The owner of 45 Ridge Road alleges that the stormwater pipe will impact its proposed development plans for 45 Ridge Road.

- The location of the pipe will be as close to the boundary as possible has inherent limitations as to how it can be developed

- The location of the pipe alongside the boundary of 45 Ridge Road leaves ample room for that property to be developed

- If the owner were to build over or near to the pipe, then the pipe could be bridged over.

Recommended stormwater management option

41. Staff recommend that construction of the proposed stormwater works proceed at 45 Ridge Road as per option one in this report.

42. The works are necessary to enable development at 43 Ridge Road and to meet the council’s stormwater standards. Works are expected to take up to five days to complete, and staff will work with the landowners to ensure minimal disruption occurs.

Tauākī whakaaweawe āhuarangi

Climate impact statement

43. 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.

44. 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.

45. The proposed pipe has been designed to cater for 10 percent 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

46. Auckland Transport assets will not be impacted by the proposed works if option one is undertaken.

47. Steps will be taken to ensure that the wastewater line owner by Watercare is not impacted by the stormwater works.

48. 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

49. The Howick Local Board has not been consulted on the proposed stormwater works, as the pipe will be constructed on private land.

Tauākī whakaaweawe Māori

Māori impact statement

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

51. 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.

52. 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

53. If approved, the pipe will be constructed by the council, with costs of the works to be paid for by the developer upfront. A bond to cover any potential bridging costs would be sought from the owner of 43 Ridge Road to be held by the council for a period of two years post completion of the work if any claim for injurious affection was made by the owner of 45 Ridge Road.

54. 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 D – Injurious Affection Assessment.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

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

Table 3. Risks and mitigations arising from option one: crossing land at 45 Ridge Road

Risk	Likelihood and consequence	Mitigation
Legal risk – Objectors argue that this is in fact a private pipe and Auckland Council ought to use section 460 of the Local Government Act 1974 instead of section 181 Local Government Act 2002.	Likelihood: Low Consequence: Low	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 Landowner appeals the Regulatory Committee’s decision, the council may become liable for the cost of defending a District Court case.	Likelihood: Low Consequence: Low	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 landowner is unsuccessful in any legal challenge, they may be liable to pay court costs.
The Landowner 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: Low	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 back garden. The residential home on 45 Ridge Road is sufficiently far enough from the works that it is extremely unlikely that it would be impacted · the proposed methodology will cause minimal disruption to 45 Ridge Road as the pipe will be thrust under the garden and not open cut · if the owner of 45 Ridge Road wishes to build over the pipe, then the pipe could be bridged over to protect it. The council would request from the owner of 43 Ridge Road a bond (to remain in place for a period of two years post completion of the works) equivalent to the cost of bridging the pipe. 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

56. 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 landowner in writing of the council’s intention to proceed with the works. The work is proposed to be undertaken in October 2021.

57. The landowner has 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	251
b ⇩	Objection letter	255
c ⇩	Map showing alternative alignments considered	261
d ⇩	Injurious Affection Assessment	263

Ngā kaihaina

Signatories

Authors

Leigh Steckler - Senior Commercial Negotiator, Healthy Waters

Shaun McAuley - Commercial Partnerships Team Leader, Healthy Waters.

Authorisers

Craig Mcilroy – General Manager Healthy Waters

Barry Potter - Director Infrastructure and Environmental Services

Craig Hobbs - Director Regulatory Services

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

[5] includes lifting, temporary structures, noise, vehicles

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

[7] See Local Government Act 2002, s158.

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

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