I hereby give notice that an ordinary meeting of the Regulatory Committee will be held on:

 

Date:

Time:

Venue:

 

Tuesday, 9 November 2021

10.00am

This meeting will be held remotely and can be viewed on the Auckland Council website https://www.aucklandcouncil.govt.nz/about-auckland-council/how-auckland-council-works/meetings-council-bodies/Pages/webcasts-council-meetings.aspx.

 

 

Komiti Whakahaere ā-Ture /

Regulatory Committee

 

OPEN AGENDA

 

 

MEMBERSHIP

 

Chairperson

Cr Linda Cooper, JP

 

Deputy Chairperson

Cr Josephine Bartley

 

Members

Cr Dr Cathy Casey

 

 

Deputy Mayor Cr Bill Cashmore

 

 

Cr Fa’anana Efeso Collins

 

 

Mayor Hon Phil Goff, CNZM, JP

 

 

Cr Shane Henderson

 

 

Cr Daniel Newman, JP

 

 

Cr Sharon Stewart, QSM

 

 

IMSB Chair David Taipari

 

 

Member Glenn Wilcox

 

 

Cr Paul Young

 

 

(Quorum 5 members)

 

 

 

Sophie White

Kaitohutohu Mana Whakahaere / Governance Advisor

 

3 November 2021

 

Contact Telephone: 0211836328

Email: sophie.r.white@aucklandcouncil.govt.nz

Website: www.aucklandcouncil.govt.nz

 

 



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

09 November 2021

 

ITEM   TABLE OF CONTENTS                                                                                         PAGE

1          Apologies                                                                                                                        9

2          Declaration of Interest                                                                                                   9

3          Confirmation of Minutes                                                                                               9

4          Petitions                                                                                                                          9  

5          Public Input                                                                                                                    9

6          Local Board Input                                                                                                          9

7          Extraordinary Business                                                                                              10

8          Alcohol Licensing Annual Report 2020-2021                                                           11

9          Resource Consents Appeals: Status Report 9 November 2021                            15

10        Summary of Regulatory Committee Information - updates, memos and briefings - 9 November 2021                                                                                                            31

11        Objection to stormwater works at 75 Kitchener Road, Milford – 12 Crete Avenue, Milford                                                                                                                           43

12        Determination of Objection Against Disqualification of Dog Owner - Gillfedder 67

13        Objection to Nuisance Abatement Notice by Yuvaraj Davidson Thyagarajan Abraham                                                                                                                     105

14        Consideration of Extraordinary Items

 


1          Apologies

 

At the close of the agenda no apologies had been received.

 

 

2          Declaration of Interest

 

Members are reminded of the need to be vigilant to stand aside from decision making when a conflict arises between their role as a member and any private or other external interest they might have.

 

 

3          Confirmation of Minutes

 

That the Regulatory Committee:

a)         confirm the ordinary minutes of its meeting, held on Tuesday, 12 October 2021, including the confidential section, as a true and correct record.

 

 

4          Petitions

 

At the close of the agenda no requests to present petitions had been received.

 

 

5          Public Input

 

Standing Order 7.7 provides for Public Input.  Applications to speak must be made to the Governance Advisor, in writing, no later than one (1) clear working day prior to the meeting and must include the subject matter.  The meeting Chairperson has the discretion to decline any application that does not meet the requirements of Standing Orders.  A maximum of thirty (30) minutes is allocated to the period for public input with five (5) minutes speaking time for each speaker.

 

At the close of the agenda no requests for public input had been received.

 

 

6          Local Board Input

 

Standing Order 6.2 provides for Local Board Input.  The Chairperson (or nominee of that Chairperson) is entitled to speak for up to five (5) minutes during this time.  The Chairperson of the Local Board (or nominee of that Chairperson) shall wherever practical, give one (1) day’s notice of their wish to speak.  The meeting Chairperson has the discretion to decline any application that does not meet the requirements of Standing Orders.

 

This right is in addition to the right under Standing Order 6.1 to speak to matters on the agenda.

 

At the close of the agenda no requests for local board input had been received.

 


 

 

7          Extraordinary Business

 

Section 46A(7) of the Local Government Official Information and Meetings Act 1987 (as amended) states:

 

“An item that is not on the agenda for a meeting may be dealt with at that meeting if-

 

(a)        The local  authority by resolution so decides; and

 

(b)        The presiding member explains at the meeting, at a time when it is open to the public,-

 

(i)         The reason why the item is not on the agenda; and

 

(ii)        The reason why the discussion of the item cannot be delayed until a subsequent meeting.”

 

Section 46A(7A) of the Local Government Official Information and Meetings Act 1987 (as amended) states:

 

“Where an item is not on the agenda for a meeting,-

 

(a)        That item may be discussed at that meeting if-

 

(i)         That item is a minor matter relating to the general business of the local authority; and

 

(ii)        the presiding member explains at the beginning of the meeting, at a time when it is open to the public, that the item will be discussed at the meeting; but

 

(b)        no resolution, decision or recommendation may be made in respect of that item except to refer that item to a subsequent meeting of the local authority for further discussion.”


Regulatory Committee

09 November 2021

 

Alcohol Licensing Annual Report 2020-2021

File No.: CP2021/15840

 

  

 

Te take mō te pūrongo

Purpose of the report

1.       The District Licensing Committee (DLC) is required by section 199 of the Sale and Supply of Alcohol Act 2012 to send to the Alcohol Regulatory and Licensing Authority (the Authority) a report of its proceedings and operations for the year 1 July 2020 to 30 June 2021.  The Authority specifies the form of the annual report and the matters to be included. That report has been sent to the Authority.

2.       For the Regulatory Committee to receive the Alcohol Licensing Report 2020-2021. Further information has also been provided in this report on the activities of the Alcohol Licensing Unit.

Whakarāpopototanga matua

Executive summary

Total licences

3.       As of 30 June 2021, there was a total of 4,266 active alcohol licences in Tamaki Makaurau.  This consisted of 2,777 On-Licences, 1,099 Off-Licences and 390 Club Licences.

Applications dealt with by the District Licensing Committee

4.       In the 12-month period the DLC dealt with 867 applications for new on-licences, 359 applications for new off-licences and 33 applications for new club licences.

5.       The DLC dealt with 895 applications to renew or vary on-licences, 338 applications to renew or vary off-licences, and 161 applications to renew or vary club licences.

6.       The number of new Managers Certificate applications were 2,675, while there were 3,127 applications to renew Managers Certificates.

7.       There were 2,059 Special licences dealt with by the DLC.

8.       Total applications dealt with were 10,514.

Hearings held

9.         Public hearings were held by the DLC to deal with 32 Licence applications that were opposed by the licensing inspector, Police or Medical Officer of Health, or objected to by members of the community and 17 Managers Certificate applications that were opposed by the licensing inspector or the police.  All other applications were dealt with ‘on the papers’.

Initiatives by the District Licensing Committee

10.     A position of Chief Commissioner was introduced, and one of the Chairs, Ms Katia Fraser was appointed to that position.

11.     More hearings were held in the locality of the subject premises to accommodate local objectors.

12.     Alternatives have been provided such as virtual attendance for objectors to join a hearing when they cannot attend in person.

13.     The required recruitment and appointment/reappointment process of DLC chairs and members was completed last year.  This has successfully increased the diversity of the members.

 

Licensing inspectors’ activities

14.     The licensing inspectors together with their Regulatory Support colleagues prepared reports for all applications dealt with by the DLC.  During Covid-19 restrictions the inspectors were able to continue their work online from their homes.

15.     The inspectors were required to interview all 2,675 of the applicants for new Manager’s Certificates.  During periods of Covid-19 restrictions the interviews continued using video apps such as Duo, Skype for Business and Microsoft Teams. 

16.     Inspections of licensed premises were carried out on 2,819 occasions.  Of these 171 were found to be non-compliant.  Those that were found to be non-compliant were either warned, issued an infringement, or prosecuted in the Alcohol Regulatory and Licensing Authority.

17.     Controlled Purchase Operations (CPOs) made up 254 of those inspections.  Twenty-seven premises failed their CPO.  All premises that failed were prosecuted in the Alcohol Regulatory and Licensing Authority.

Trends in applications and delivery of alcohol

18.     The emergence of Covid –19 has seen an increase in new off-licence applications for taverns and remote-only sellers.  The applications from taverns have been so that they can deliver food and alcohol under Alert Level 3 and 4 restrictions. 

Taverns with off-licences

December 2019

36

January 2021

62

June 2021

67

October 2021

71

 

19.     The number of applications from those wanting to sell alcohol via a digital platform with delivery, has also increased significantly in that same period.  Some remote sellers will deliver alcohol within an hour.

Remote only sellers off licences

December 2019

136

January 2021

178

June 2021

191

October 2021

200

 

20.     The delivery of alcohol in very short time frames (as quick as 20 minutes) has also increased with the introduction of such platforms as ‘Uber Drinks’ and ‘Deliver Easy’.  Uber Drinks acts via a third-party digital app connecting customers to bottle stores and facilitating the sale and delivery of alcohol between them.  Deliver Easy on the other hand have their own off-licence and process orders via an app using taxis or similar for delivery.

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a)      receive the report.

b)      note that aspects of the report have been sent to the Alcohol Regulatory and Licensing Committee in accordance with section 199 of the Sale and Supply of Alcohol Act 2012 as part of the District Licensing Committee’s annual report.  That report is published on the Auckland Council website.

 

Horopaki

Context

21.     The functions of the District Licensing Committee are to consider and determine applications for licences and managers certificates, and to consider and determine applications for temporary authorities and the variation of licence conditions.

22.     The Committee is assisted in its work by the staff of the Hearings Team from the Democracy and Engagement Department and the Regulatory Support Unit of the Licensing and Regulatory Compliance Department.

23.     The functions of the alcohol licensing inspectors are to report on all applications made to the DLC and to monitor licensee’s compliance with the Sale and Supply of Alcohol Act 2012.

Tātaritanga me ngā tohutohu

Analysis and advice

24.     The District Licensing Committee (DLC) is required by section 199 of the Sale and Supply of Alcohol Act 2012 to send to the Alcohol Regulatory and Licensing Authority a report of its proceedings and operations for the year 1 July 2020 to 30 June 2021.  The Authority specifies the form of the annual report and the matters to be included.

25.     That Report has been sent to the Authority as required and relevant information from that report is contained in this report for the information of the Committee. 

Tauākī whakaaweawe āhuarangi

Climate impact statement

26.     There is no climate impact arising from this report.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

27.     There are no Council group impacts because of this report.

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

Local impacts and local board views

28.     Apart from the fact that some Local Boards have been objectors to applications before the DLC there are no Local Board impacts because of this report.

Tauākī whakaaweawe Māori

Māori impact statement

29.     While acknowledging that Māori are disproportionately affected by alcohol related harm, there are no impacts on Māori because of this report.

Ngā ritenga ā-pūtea

Financial implications

30.     There are no financial impacts resulting from this report.  This report has been reviewed by Kevin Smith, Commercial Finance Manager for Regulatory Services.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

31.     There are no risks and mitigations arising from this report.

Ngā koringa ā-muri

Next steps

32.     That the report will be made available on the Auckland Council website.

 

Ngā tāpirihanga

Attachments

There are no attachments for this report.     

Ngā kaihaina

Signatories

Author

Rob Abbott, Principal Specialist Alcohol Licensing

Authorisers

Mervyn Chetty - Manager Alcohol & Environmental Health

James Hassall - General Manager, Licensing and Regulatory Compliance

Craig Hobbs - Director Regulatory Services

 


Regulatory Committee

09 November 2021

 

Resource Consents Appeals: Status Report 9 November 2021

File No.: CP2021/16024

 

  

 

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 12 October 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: 09 353-9254) 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 9 November 2021.

 

Horopaki

Context

4.       As at 26 October 2021, there are 29 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 29 September 2021, there have been no new appeals lodged. The lack of appeals reflects the small number of council hearings and decisions released during the past three months.

6.       The current Covid19 lockdown also continues to see a number of Court hearings and mediations postponed until later in the year. Discussions however continue between various parties to seek resolutions of the appeals where possible.

7.       The Court on 14 October 2021, released its decision declining the Drive Holdings Limited appeal. Drive Holdings sought to develop various properties fronting Tamaki Drive and Patterson Avenue within the Mission Bay commercial centre.  The decision confirmed the council’s refusal, that the Court noted as being well founded. This followed extensive hearing time during which the proposal was redesigned, and the overall height decreased. Greater weight was given to the maximum height and bulk provisions of the AUP that had been debated at length during the PAUP hearings, than the competing urban design evidence of the various parties.

Tātaritanga me ngā tohutohu

Analysis and advice

8.       To receive the report as provided.

Tauākī whakaaweawe āhuarangi

Climate impact statement

9.       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

10.     Not applicable.

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

Local impacts and local board views

11.     Not applicable.

Tauākī whakaaweawe Māori

Māori impact statement

12.     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.

13.     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

14.     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

15.     Not applicable.

Ngā koringa ā-muri

Next steps

16.     Not applicable.

 

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Current Resource Consent Appeals as at 26 October 2021

19

     

Ngā kaihaina

Signatories

Author

Robert Andrews - Principal Specialist Planning

Authorisers

Ian Smallburn - General Manager Resource Consents

Craig Hobbs - Director Regulatory Services

 


Regulatory Committee

09 November 2021

 

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Regulatory Committee

09 November 2021

 

Summary of Regulatory Committee Information - updates, memos and briefings - 9 November 2021

File No.: CP2021/16128

 

  

 

Te take mō te pūrongo

Purpose of the report

1.       To note the progress on the forward work programme appended as Attachment A.

2.       To receive a summary and provide a public record of workshops, memoranda or briefing papers that may have been held or been distributed to Regulatory Committee members.

Whakarāpopototanga matua

Executive summary

3.       This is a regular information-only report which aims to provide public visibility of information circulated to committee members via memo or other means, where no decisions are required.

4.       The following memoranda have been distributed:

Date

Subject

15/10/21

Hearings held, hearing panels and hearing outcomes October 2020 – September 2021

20/10/21

Court of Appeal’s decision on council’s Proposed Local Alcohol Policy and next steps

 

5.       These documents can be found on the Auckland Council website, at the following link:

http://infocouncil.aucklandcouncil.govt.nz/

at the top left of the page, select meeting/Te hui “Regulatory Committee” from the drop-down tab and click “View”;

under ‘Attachments’, select either the HTML or PDF version of the document entitled ‘Extra Attachments’.

6.       Note that, unlike an agenda report, staff will not be present to answer questions about the items referred to in this summary. Committee members should direct any questions to the authors.

 

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a)      note the progress on the forward work programme appended as Attachment A of the agenda report

b)      receive the summary of Regulatory Committee Information – updates, memos and briefings – 9 November 2021.

 


 

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Forward Work Programme

33

b

Hearings held, hearing panels and hearing outcomes October 2020 – September 2021 (Under Separate Cover)

 

c

Court of Appeal’s decision on council’s Proposed Local Alcohol Policy and next steps (Under Separate Cover)

 

     

Ngā kaihaina

Signatories

Author

Sophie White - Kaitohutohu Mana Whakahaere / Governance Advisor

Authoriser

Craig Hobbs - Director Regulatory Services


Regulatory Committee

09 November 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

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.

 

Progress to Date:

Decision report 14 September 2021

Link to decision

 

 

 

 

 

 

 

 

ü

 

 

 

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

Options report 17 August 2021

Link to decision

Decision report 14 September 2021

Link to decision

 

 

 

 

 

 

 

ü

ü

 

 

 

Regional Parks Management Plan Review

Service Strategy and Integration

The process for review of this plan under the Reserves Act 1977 requires hearings to occur after written submissions on the draft plan.

Consultation is due to start in late November 2022 (subject to approval by the PACE Committee), with hearings anticipated to occur in mid-2022.

Decision to appoint hearings commissioners for the Regional Parks Management Plan review.

 

 

 

 

 

 

 

 

 

 

 

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

 

 

 

 

 

 

 

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.

 

Progress to Date:

Decision Report 14 September 2021

Link to decision

 

 

 

 

 

 

 

 

ü

 

 

 

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

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

 


 

Kōmiti Whakahaere ā-Ture / Regulatory Committee
Forward Work Programme 2022

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 2022

Feb

Mar

Apr

May

Jun

Jul

Aug

Sep

Oct

Nov

Dec

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

 

 

 

 

 

 

 

 

 

 

 

 


Regulatory Committee

09 November 2021

 

Objection to stormwater works at 75 Kitchener Road, Milford – 12 Crete Avenue, Milford

File No.: CP2021/14698

 

  

 

Te take mō te pūrongo

Purpose of the report

1.       To hear and determine an objection to proposed stormwater works at 75 Kitchener Road, Milford pursuant to section 181 of the Local Government Act 2002.

Whakarāpopototanga matua

Executive summary

2.       This report recommends that the Regulatory Committee resolve that the council will proceed with the extension of the public stormwater network from 75 Kitchener Road across land at 12 Crete Avenue according to clause 1(e) of Schedule 12 of the Local Government Act 2002.

3.       A developer, QPC Limited (QPC) has obtained approval from the council to connect a public stormwater line for a new development at 75 Kitchener, Milford, through the neighbouring property at 12 Crete Avenue, Milford, which is also being developed (a new dwelling having already been constructed).

4.       The proposed works involve the construction of 55 metre length pipe to run down the driveway of 12 Crete Avenue Milford (see Attachment A – Engineering Planning Approval). The work is estimated to take up to two weeks. Once constructed, this pipe will be vested in the council as a public stormwater asset.

5.       Zhonggui Chen, the owner of 12 Crete Avenue (Objector) has not agreed to allow QPC access to their property for this purpose. Council-led efforts to facilitate an agreement have been unsuccessful.

6.       QPC applied to the council for an authorisation under section 460 of the Local Government Act 1974 which relates to private pipes. Following an objection and hearing before the Regulatory Committee, this authorisation was granted on 15 June 2021. High Court judicial review proceedings were initiated by Mr Chen regarding that decision. Those proceedings are yet to be heard. 

7.       At the request of the developer at 75 Kitchener Road, Healthy Waters considered whether it could assist by using its powers under section 181 of the Local Government Act 2002. After undertaking a site inspection and considering the alternative options for the pipe, Healthy Waters considered it necessary for the route to go across 12 Crete Avenue. It then issued a notice under section 181(2) of the Local Government Act 2002 on 9 September 2021 informing the landowners of its intention to construct the works as a council project.

8.       The Objector lodged a written objection to the works, on the grounds that the council has not considered alternative options instead of using this option to construct through their land (see Attachment B).

9.       If the Regulatory Committee determines that the council will proceed with the works, construction will commence in December 2021 (weather dependent). It is proposed that the pipe would be installed by horizonal directional drilling, which is a trenchless methodology designed to minimise disruption caused by construction. The works will take approximately two weeks to complete.

10.     It has been explained to all the affected property owners that under the section 181 process they have the right to claim any injurious affection established under the Public Works Act 1981.

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

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

b)      resolve that the council will proceed with the extension of the public stormwater network from 75 Kitchener Road across land at 12 Crete Avenue (as shown in Attachment A to the agenda report), according to clause 1(e) of Schedule 12 of the Local Government Act 2002.

 

Horopaki

Context

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

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

13.     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. 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.

Background

15.     QPC has resource consent to subdivide a property at 75 Kitchener Road. A condition of that resource consent is that the new development connects to the public stormwater system. QPC has also obtained engineering plan approval to connect the subdivision to a public stormwater line to be located on street outside 12 Crete Avenue as part of development at that property (see Attachment A). The connecting pipe will run down the driveway of the impacted property with minimal disruption. Once completed, the pipe would be vested in the council and form part of Healthy Waters’ network.

16.     As agreement could not be obtained from the Objector, QPC applied to the council for an authorisation under section 460 of the Local Government Act 1974 which relates to private pipes. Following an objection and hearing before the Regulatory Committee, this authorisation was granted on 15 June 2021. QPC then approached Healthy Waters seeking that the pipe be constructed pursuant to the section 460 authorisation. 

17.     Before the pipe could be constructed, the Objector commenced judicial review proceedings in the High Court challenging the lawfulness of the council’s decision to grant the section 460 authorisation. That judicial review has yet to be heard or determined by the Court. A key aspect of the judicial review application is a claim that the wrong process was used, and that the pipe is public rather than private. The Objector also sought to surrender its own engineering approval ENG60349185 (dated 18 December 2019) so that QPC would not be able to connect to the stormwater pipe that the Objector would otherwise construct at its property to serve its own development.

18.     Without prejudice to the council's defence to that existing litigation, and in response to the allegation that the wrong process was used, Healthy Waters suggested that the parties consider options under section 181 of the Local Government Act 2002 which relates to the construction of public pipes.

 

19.     On 12 July 2021, Healthy Waters staff inspected the properties at 75 Kitchener Road and 12 Crete Avenue and determined that it considered the proposed works to be necessary public works. On 9 September 2021, it subsequently issued a notice under section 181 of the Local Government Act 2002. On 8 October 2021, the Objector filed an objection with the council.

Tātaritanga me ngā tohutohu

Analysis and advice

20.     The council is empowered to construct works on private land that it considers necessary for stormwater drainage. Before making a decision, 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. It also takes into account the views of persons affected by, or having an interest in, the decision.

21.     In this case, the council analysed three alternative alignments for connecting the development at 75 Kitchener Road Milford to the public stormwater system (see Attachment C).

22.     These options were:

·        option one: extending the public network from 12 Crete Avenue (recommended option)

·        option two: kerb discharge on Kitchener Road

·        option three: extending the public network from 71 Kitchener Road

·        option four: do nothing.

23.     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

Via 12 Crete Avenue

Yellow on map in Attachment C

Option 2

Kerb discharge on Kitchener Road

Orange on map

Option 3

Connect via 71 Kitchener Road

Purple on map

Significance

Affected property owners

3

0

3

Low

Interference with existing services

Minor – wastewater line 12 Crete

 

Medium – road network and waterline

High – close proximity to wastewater line

Medium

Disruption to property owners

Minor – pipe will be thrust underdrive driveway with minimal disturbance

None

Medium – close proximity to existing structures

Major

Cost

$

$$$

Additional traffic management controls required

$$$

Medium

Route to existing stormwater network

Less direct

55m

Least direct

75m

Most direct

41m

Low

Access for future maintenance

Good

Good

Restricted

Medium

Duplication of existing stormwater infrastructure

0%

0%

0%

Medium

Impact on development potential

None – pipe will run under driveway

None, line will run along eastern boundary

None – land is fully developed and runs close to boundary

Medium

Constructability risk

Minor

Medium – requires thrusting under major arterial road

High – existing wastewater line and existing dwellings – likely to be in zone of influence

Major

Dependent on pumping?

No

Yes

Yes

Major

Achieves stormwater solution

Yes

Temporary solution only

Yes

Major

Compliance with Stormwater Code of Practice

Yes

No – alternative gravity solution is in immediate vicinity

No – alternative gravity solution is in immediate vicinity

Medium

Key

Most positive

Moderately positive

Moderately negative

Most negative

Analysing options for stormwater management on 75 Kitchener Road, Milford

24.     Option 2 is not the recommended option as it would involve pumping water uphill to discharge on the road. This option presents operational and maintenance issues and is not supported as a long-term solution for managing stormwater. 

25.     Option 3 is not recommended as it carries a higher construction risk with an existing wastewater line and dwellings in close proximity. Furthermore, this option would require water to be pumped uphill, which presents operational and maintenance issues and is not supported as a long-term solution for managing stormwater.

 

 

 

 

26.     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 surplus stormwater infrastructure which it has to maintain as part of the public network, and do not comply with the Stormwater Code of Practice. It also increases the likelihood of 75 Kitchener Road discharging to the kerb in lieu of a better solution and in contravention of its resource consent.

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

·        it is the closest gravity connection which is least intrusive and disruptive to 12 Crete Avenue, who also requires a stormwater connection for their development

·        the proposed reticulation is within the same alignment as that granted to 12 Crete Avenue under engineering approval ENG60349185 (dated 18 December 2019)

·        the location of the work will not affect any structures, resulting in minimal disturbance within the property

·        pursuing alternative options would involve greater impact on properties owners and would require water to be pumped uphill, which presents operational issues once vested as public pipes

·        the works cannot be reasonably accommodated on public land

·        the pipe network has been designed to cater for the 10 per cent annual exceedance probability (the probability of a flood event occurring in any year), including allowance for climate change 

·        the work has been designed in accordance with Auckland Council standards and its installation will enable development to take place in surrounding areas

·        construction will allow the site to be developed, which contributes to Auckland’s growth and need for housing. 

28.     In addition to these factors, Healthy Waters engineers have determined that option one can be constructed using a trenchless method which would have minimal impact on the 12 Crete Avenue.

Negotiating with the landowners

29.     Regulatory Services advise that negotiations with the landowners have been ongoing since September 2020, with Healthy Waters becoming involved from July 2021 onwards.

30.     The council has attempted to engage with the landowners to offer advice on the proposed works and broker an agreement. Healthy Waters undertook a site investigation to do an option analysis and a letter was sent to the Objector’s lawyers to seek the client’s feedback in relation to the proposal. However, as no response was received, the council subsequently issued a section 181 notice.


 

 

Summary of objections received

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

Table 2. Summary of objection (see paragraphs 5 and 8 of the Objection)

Objection points

 

Response from Healthy Waters

 

5a - Granting resource consent on a non-notified basis to 75 Kitchener to construct three dwellings and undertake a three lot subdivision at 75 Kitchener Street, when Council knew or ought to have known that the provision of stormwater from 75 Kitchener Street through 12 Crete Avenue may affect the owners and occupiers of 12 Crete Avenue

This objection concerns matters affecting the resource consent issued by the Regulatory Services department and does not relate to Healthy Waters’ decision to commence a process under section 181 of the Local Government Act 2002

5b - Purporting to withdraw an existing engineering plan approval for 12 Crete Avenue, by a supplementary EPA issued on or about 8 January 2021, which had the effect of requiring the objector to approve a stormwater connection from 75 Kitchener through 12 Crete Avenue

This objection concerns matters affecting the Regulatory Services department and does not relate to Healthy Waters’ decision to commence a process under section 181 of the Local Government Act 2002

5c - Commencing a notice of intention process to construct a stormwater line through 12 Crete Avenue under section 460 of the Local Government Act 1974, when Council intended at all material times that the proposed stormwater drain would be a public stormwater drain, not a private stormwater drain

This ground for objection relates to the matter that the objector is challenging in the High Court. That cannot be resolved in this matter. The sole purpose of this hearing is this application under section 181 for a public stormwater drain, which aligns with the allegations in the objector's High Court proceedings.

8a - The options identified in the statement of Luisito (Louie) Balajadia, dated 14 June 2021

The options proposed by Louie Balajadia of Anchor Consultants Ltd would require significant fill of up to two metres within 75 Kitchener Road and this is not permitted given the approved consents in terms of height in relation to boundary limits.

8b - On-site soakage disposal using rock bore soak hole, with drilling test results from nearby properties indicate there is a likelihood that rock bore soak hole is suitable for 75 Kitchener Road

Milford area is not identified as suitable area for soakage discharge and risk of downstream flooding is increased under the approved subdivision development.

8c - Connection to the public stormwater pipe within Crete Avenue via 73 Kitchener Road and 10 Crete Avenue

The proposed connection to the public line in Crete Avenue is the only practical solution given the congested services within the road berm.

8d - On-site soakage disposal using soak trench (stormwater crate system), in the event that either (a) or (b) or 9c) (above) are not appropriate

Milford area is not identified as suitable area for soakage discharge and risk of downstream flooding is increased under the approved subdivision development.

Recommended stormwater management option

32.     Staff recommend that construction of the proposed stormwater works proceed at 75 Kitchener Road Milford as per option one in this report.

33.     The works are necessary to enable development at 75 Kitchener Road Milford and to also service development at 12 Crete Avenue, and to meet the council’s stormwater standards. Works are expected to take around two weeks to complete, and staff will work with the landowners to ensure minimal disruption occurs.

Tauākī whakaaweawe āhuarangi

Climate impact statement

34.     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.

35.     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.

36.     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

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

38.     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

39.     The Devonport-Takapuna 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

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

41.     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.

42.     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

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

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

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

Table 3. Risks and mitigations arising from option one: crossing land at 12 Crete Avenue, Milford

Risk

Likelihood and consequence

Mitigation

Legal risk – A decision by the Regulatory Committee could be appealed to the District Court; and a person suffering injurious affection may seek compensation through the public works act process.

Likelihood: Low

Consequence: Low

The council takes steps to ensure that its decision making process under section 181 of the Local Government Act 2002 meets legal requirements. The risks of adverse judicial decisions are considered to be low.

Infrastructure risk - Low quality assets being constructed.

Likelihood: Low

Consequence: Medium

The works will be undertaken by an approved council contractor pursuant to an appropriate construction agreement with insurances to cover appropriate risks.

Ngā koringa ā-muri

Next steps

45.     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 commence in December 2021.

46.     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

53

b

Objection letter

55

c

Option analysis report

59

     

Ngā kaihaina

Signatories

Authors

Masira Khan, Intermediate Healthy Waters Specialist, Healthy Waters

Shaun McAuley, Commercial Partnerships Team Leader, Healthy Waters

Authorisers

Craig Mcilroy – General Manager Healthy Waters

Barry Potter - Director Infrastructure and Environmental Services

Craig Hobbs - Director Regulatory Services

 



Regulatory Committee

09 November 2021

 

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Regulatory Committee

09 November 2021

 

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Regulatory Committee

09 November 2021

 

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Regulatory Committee

09 November 2021

 

Determination of Objection Against Disqualification of Dog Owner - Gillfedder

File No.: CP2021/15843

 

  

Te take mō te pūrongo

Purpose of the report

1.       To hear and determine the objection by Mr Marc Gillfedder against the disqualification of owning a dog pursuant to Section 25 of the Dog Control Act 1996 (DCA).

Whakarāpopototanga matua

Executive summary

2.       Mr Gillfedder has been the owner of two 4-year-old male Labrador Retriever crossbred dogs named Snoop and Odin since 2017.

3.       Section 25(1)(a) of the DCA provides that a territorial authority must disqualify a person from being an owner of a dog if that person commits 3 or more infringement offences (not relating to a single incident or occasion) within a continuous period of 24 months.

4.       Section 25(3) of the DCA provides that the period of disqualification is to run for a period not exceeding 5 years from the date of the last qualifying infringement offence.

5.       On 18 August 2020 Animal Management decided to disqualify Mr Gillfedder from owning dogs because 9 infringement notices for various offending under the DCA had been issued to him between the period September 2018 to August 2020.  The period of disqualification is for the period 19 August 2020 being the date of service of the notice to 1 April 2025, which is 5 years from the date of the last qualifying infringement offence.

6.       The effects of a disqualification are that the person:

a)   Must within 14 days of the date of service of the order dispose of every dog owned by them, and

b)   Shall not dispose their dog to any person who resides at the same address

c)   May not subsequently own a dog or be in possession of a dog at any time during the period of disqualification.

7.       The purpose of disqualifying a repeat offender under the DCA from owning a dog, is to protect public safety by reducing the likelihood of re-offending that may cause a nuisance or harm to persons or animals.

8.       On 3 September 2020 Mr Gillfedder objected to the disqualification.  The basis of his objection is a denial of liability for any of the infringement notices issued to him.

9.       Section 26 of the DCA provides a right to a disqualified owner to be heard in support of their objection to the disqualification.  The Regulatory Committee must hear the objection and decide whether:

a)   to uphold,

b)   bring forward the date of termination, or

c)   immediately terminate the disqualification. 

10.     Case law indicates that the 5-year period of disqualification is inappropriate.

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a)      hear and determine the objection, and

b)      uphold the disqualification but bring the date of termination forward to 1 October 2022.

 

Horopaki

Context

12.     The Governing Body of the Auckland Council has delegated to the Regulatory Committee the responsibility for regulatory hearings in Resolution No. GB/2019/109 which was adopted on 12 November 2019.   The regulatory hearings which the Regulatory Committee is responsible include, amongst others, decisions under the DCA in relation to the consideration of objections under the DCA.

13.     Section 26(3) of the DCA determines that in considering an objection to the disqualification of a person, the Regulatory Committee should have regard to the following:

a)   The circumstances and nature of the offences in respect of which the objector was disqualified

b)   The competency of the objector in terms of responsible dog ownership

c)   Any steps taken by the objector to prevent further offences

d)   The matters advanced in support of the objection, and

e)   Any other relevant matters.

14.     The Regulatory Committee is not empowered to substitute a disqualification order with a probationary order under section 21 of the DCA, or to change the commencement date.

15.     After making its decision, the Regulatory Committee must as soon as practicable give the objector written notice of its decision, the reasons for it and the objector’s right to appeal the decision.

16.     An objector who is dissatisfied with the decision of the Regulatory Committee, may appeal the decision to the District Court within 14 days of receipt of the notice.

Background

17.     The Council has received reports of non-compliance relating to Mr Gillfedder’s obligations under the DCA to ensure that his dogs are always kept under control.  During the period September 2018 to April 2020, he was issued with 8 infringement notices for offending under the DCA. [Attachments A to I]

18.     Below is a summary of the infringement offences:

Attachment

Date of offence

Infringement notice number

Dog

Circumstances of Offence

A

4/9/2018

61000126607

Snoop

S 20(5) DCA breach of clause 7 Dog Management Bylaw – failing to control dog on a leash in public place

A dog fitting Snoop’s description was seen worrying sheep in a paddock on Whangaparaoa Road.  Snoop captured on CCTV leaving that property and returning to Mr Gillfedder’s property.

AMO educated him to keep dogs confined and under control.

B

2/8/2019

61000194874

Odin

S 20(5) DCA breach of clause 7 Dog Management Bylaw – failing to control dog on a leash in public place

Odin was captured on CCTV near property where chickens had been attacked.

C

 

 

10/8/2019

61000191765

Odin

S 20(5) DCA breach of clause 7 Dog Management Bylaw – failing to control dog on a leash in public place

Odin was photographed at large on Whangaparaoa Road

D

3/10/2019

61000202842

Snoop

S 20(5) DCA breach of clause 7 Dog Management Bylaw – failing to control dog on a leash in public place

Snoop was observed on the complainant’s property

E

7/10/2019

61000203334

Odin

S 20(5) DCA breach of clause 7 Dog Management Bylaw – failing to control dog on a leash in public place

Dog was observed by member of public roaming.  Owner was later seen driving around looking for dog

F

7/10/2020

61000203342

Snoop

S 20(5) DCA breach of clause 7 Dog Management Bylaw – failing to control dog on a leash in public place

Dog was observed by member of public roaming.  Owner was later seen driving around looking for dog

 

 

G

2/4/2020

61000231945

Snoop

S 53(1) – failing to keep dog under control

Dog was observed at large at entrance to driveway of nearby residential property

H

21/4/2020

61000232615

Odin

S 53(1) – failing to keep dog under control

Dog was seen and photographed on complainant’s property

 

19.     After the commission of the offence dated 21 April 2020 and specifically on 16 June 2020 Mr Gillfedder was served with a written warning that he could be disqualified from owning dogs if he committed further infringement offences. [Attachment I]

20.     On 6 August 2020 Snoop was observed leaving its property.  Mr Gillfedder was issued with an infringement notice under section 52A(3) of the DCA for failing to confine his dog within his property [Attachment J]

21.     On 18 August 2020 Animal Management decided to disqualify Mr Gillfedder from owning dogs for a period of 5 years because he had committed three or more infringement offences within a continuous period of 24 months. The notice was served on him on 19 August 2020.  The period was to commence on 19 August 2020 and endure until 1 April 2025, being 5 years from the date of the last qualifying infringement offence [Attachment K]

22.     On 3 September 2020 Mr Gillfedder objected to his disqualification to own dogs.  [Attachment L] The objection suspended his obligation to dispose of his dogs. In essence the grounds of his objection are that:

a)   It was not his dogs that were roaming.

b)   The complaints involving his dogs are bordering on harassment.

23.     After his disqualification Mr Gillfedder was issued with further infringement notices for offending under the DCA [Attachments M, N and O]:

 

Attachment

Date of offence

Infringement notice number

Dog

Offence

M

28/9/2020

61000289212

Snoop

S 53(1) DCA – failing to control dog

Dog observed on CCTV on complainant’s property

N

28/9/2020

61000281882

Snoop

S 42(1) – failing to register dog

O

10/1/2021

61000296871

Snoop

S 53(1) DCA – failing to control dog

Dog was seen and photographed on complainant’s property

 

 

24.     All the infringement notices issued to Mr Gillfedder explained his right to dispute the infringements. Mr Gillfedder failed to do so in each instance.

Tātaritanga me ngā tohutohu

Analysis and advice

25.     Public safety is at the heart of the DCA.  For this reason, the purpose of disqualifying a person from owning a dog or placing a dog owner on probation is to protect public safety by reducing the likelihood of re-offending that may cause a nuisance or harm to persons or animals. 

26.     In the case of a probationary owner, the likelihood of re-offending is reduced by educating the dog owner in their obligations under the DCA and by limiting the number of dogs that they may own; and requiring the owner to undertake a dog owner education programme and/or a dog obedience course.  

27.     In the case of a disqualified owner, the purpose is to prevent re-offending by prohibiting the person from owning dogs, and to bring home to a dog owner the consequences to their failure to comply with their obligations. 

28.     Section 25 of the DCA determines that the Council must disqualify a repeat offender from owning a dog unless it is satisfied that the circumstances of the offences are such that:

a)   Disqualification is not warranted, or

b)   The person should rather be classified as a probationary owner under section 21 of the DCA.

29.     The effect of section 25 of the DCA is that the classification as a probationary owner can only occur if the territorial authority is first satisfied that a disqualification is not warranted because of the circumstances of the offences and the offender.

30.     The criteria for disqualifying a person from owning a dog and classifying a person as a probationary owner are the same.  The difference between the two classifications lies in their respective consequences:

a)   The maximum period for disqualification is 5 years but 2 years for probation.

b)   A probationary owner is allowed to retain ownership of their registered dogs but may not own further dogs during the probation period. 

c)   The Council may require a probationary owner to undertake, at their own expense, a dog owner education programme and/or a dog obedience course.

 Analysis

31.     In this instance it was decided to disqualify Mr Gillfedder from owning dogs to prevent re-offending which may cause harm and nuisance to people and animals.  The following factors were considered in making this decision:

a)   The dogs pose a risk to road users.

b)   The dogs cause a nuisance to the community.

c)   Mr Gillfedder was educated on his obligations to keep his dogs confined.

d)   Mr Gillfedder’s repeat disregard of his obligations under the DCA.

e)   Mr Gillfedder’s lack of competency in terms of responsible dog ownership.

 

 

 

32.     Section 26(3) identifies the following factors that the Regulatory Committee must have regard to when considering this objection:

a)   The circumstances and nature of the offences in respect of which Mr Gillfedder was disqualified:

·    His failure to confine his dogs on his property is causing a nuisance to the community and may pose a risk to the safety of road users

b)   The competency of Mr Gillfedder in terms of responsible dog ownership:

·    Mr Gillfedder was educated on his obligations under the DCA but failed to take steps to confine his dogs on his property

·    He has committed further infringement offences since his disqualification.

c)   Any steps taken by Mr Gillfedder to prevent further offences:

·    Mr Gillfedder may address the Regulatory Committee on this point.

d)   The matters advanced in support of the objection:

·    Mr Gillfedder had the opportunity to dispute the infringements which he failed to take.  This hearing is not the correct forum to establish his liability for the infringement offences.

·    There is no evidence of Mr Gillfedder being harassed. The complaints about his dogs being at large and uncontrolled were investigated and found to be substantiated.  

e)   Any other relevant matters:

·    A probationary order under section 21 of the DCA is not appropriate.  The only effect of such an order is that a probationer is prohibited from acquiring further dogs during the period of probation.  This does not prevent further offending under the DCA. 

·    Mr Gillfedder did not take the opportunity for voluntarily training on dog owner education. 

·    In face of Mr Gillfedder’s steadfast refusal to accept liability a probationary order will not bring home the consequences of his failure to comply with his obligations under the DCA.

Advice on period of disqualification

33.     It stands to reason that the maximum period of disqualification should be reserved for the most serious offending coupled with the extent of the dog owner’s pattern of disobedience to dog control laws.

34.     According to case law, some considerations that may be relevant to the length of disqualification are:

a)   The seriousness of the offences committed.

b)   The number of offences committed.

c)   The absence of complaints or offending for extended periods.

d)   The level of the owner’s cooperation to reduce offending.

35.     Applying these considerations to Mr Gillfedder’s case, our advice is that a disqualification period of three years, calculated from the date of the last qualifying offence, is appropriate. This is based on the following factors:

a)   the offences involved fall at the lower end of the scale of seriousness as they involve the dogs being uncontrolled. 

b)   He has committed 9 infringement offences over a period of 23 months.

c)   He has committed 3 further infringement offences after he had received the disqualification notice.

d)   He has not shown any accountability for the offending.

36.     Mr Gillfedder had the benefit of the disqualification being suspended pending the objection process which reduced the effectiveness of the disqualification. 

37.     The termination date of the disqualification should be brought forward to 1 April 2023.   This will effectively disqualify Mr Gillfedder for a period of just under 17 months from the date of the determination by the Regulatory Committee.

Tauākī whakaaweawe āhuarangi

Climate impact statement

38.     This report has no impact on climate.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

39.     This report does not require council group views.

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

Local impacts and local board views

40.     This report has no local impact and Local Board views have not been sought.

Tauākī whakaaweawe Māori

Māori impact statement

41.     This report has no impact on Māori.

Ngā ritenga ā-pūtea

Financial implications

42.     There are no financial impacts resulting from this report.  This report has been reviewed by Kevin Smith, Commercial Finance Manager for Regulatory Services.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

43.     Mr Gillfedder has the right of appeal to the District Court if he is dissatisfied with the decision of the Regulatory Committee.  The risk of the Regulatory Committee’s determination being overturned on appeal is low.

Ngā koringa ā-muri

Next steps

44.     The Regulatory Committee must give Mr Gillfedder written notice of its decision and the reasons for it as soon as practical.


 

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Infringement Notice 61000126607

75

b

Infringement Notice 61000194874

77

c

Infringement Notice 61000191756

79

d

Infringement Notice 61000202842

81

e

Infringement Notice 61000203334

83

f

Infringement Notice 61000203342

85

g

Infringement Notice 61000231945

87

h

Infringement Notice 61000232615

89

i

Warning Notice

91

j

Infringement Notice 61000266298

93

k

Disqualification Notice

95

l

Objection

97

m

Infringement Notice 61000281882

99

n

Infringement Notice 61000289212

101

o

Infringement Notice 61000296871

103

     

Ngā kaihaina

Signatories

Author

Chrisna Nortje, Principal Specialist Animal Management

Authorisers

Elly Waitoa, Manager Animal Management

James Hassall - General Manager, Licensing and Regulatory Compliance

Craig Hobbs - Director Regulatory Services

 

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Regulatory Committee

09 November 2021

 

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Regulatory Committee

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Objection to Nuisance Abatement Notice by Yuvaraj Davidson Thyagarajan Abraham

File No.: CP2021/16220

 

  

 

Te take mō te pūrongo

Purpose of the report

1.       To hear and determine the objection by Yuvaraj Davidson Thyagarajan Abraham referred to as Yuvaraj Davidson against a nuisance abatement notice (NAN) issued on 25 August 2021 pursuant to section 55(1)(b) of the Dog Control Act 1996 (DCA).

Whakarāpopototanga matua

Executive summary

2.       Mr Davidson is the primary owner of a 7-year-old male German Shepherd dog called Dasher.  Since April 2021 Animal Management received several complaints about Dasher’s barking.

3.       Section 55 of the DCA provides that upon receipt of a complaint about a dog barking or howling, a dog control officer may issue a nuisance abatement notice to the owner of the dog if the officer is satisfied on reasonable grounds that a nuisance is being created by the loud and persistent barking or howling of that dog.

4.       The DCA does not define ‘loud’ or ‘persistent’.  They must be interpreted according to their general meaning and usage. The third edition of the Shorter Oxford English Dictionary defines ‘persistent’ as: ‘Of an action or condition:  Continuous, constantly repeated’.  ‘Constantly’ in turn means ‘continually recurring’.  ‘Loud’ means: ‘Of sounds or voices:  Strongly audible, striking forcibly on the sense of hearing’.

5.       The DCA does not define ‘nuisance’, but it is akin to a tort of private nuisance. For the purposes of the DCA a nuisance is created by the loud and persistent barking or howling of a dog if it unreasonably interferes, disrupts, or inhibits the activities ordinarily carried out by an occupant of a residential property.

6.       Nuisance is objectively determined on a balance of probabilities.

7.       The probabilities in this case support the conclusion that Dasher is barking loudly and persistently which is causing a nuisance to the complainant.

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a)      hear and determine the objection to the nuisance abatement notice by Mr Davidson, and

b)      by either:

i)        upholding the nuisance abatement notice, or

ii)       rescinding the nuisance abatement notice.

Horopaki

Context

8.       The Governing Body of the Auckland Council has delegated to the Regulatory Committee the responsibility for regulatory hearings in Resolution No. GB/2019/109 which was adopted on 12 November 2019. The regulatory hearings which the Regulatory Committee is responsible include, amongst others, decisions under the DCA in relation to the consideration of objections under the DCA.

9.       A NAN is issued under section 55(1) of the DCA if the Auckland Council receives a complaint about barking dogs and upon investigation a dog control officer has reasonable grounds for believing that a nuisance is being created by the persistent and loud barking or howling. 

10.     The DCA does not define ‘persistent’ or ‘loud’. Officers are guided by their general meaning and usage to determine whether barking is persistent and loud. According to the third edition of the Shorter Oxford English Dictionary -

a)   ‘Persistent’ means: ‘Of an action or condition:  Continuous, constantly repeated’.  ‘Constantly’ in turns means ‘continually recurring’. It follows that continuous barking over a prolonged period, or periodical but consistent barking is regarded as persistent, and that intermittent or occasional barking is not persistent.

b)   ‘Loud’ means: ‘Of sounds or voices:  Strongly audible, striking forcibly on the sense of hearing’.  

11.     The DCA also does not define when the loud and persistent barking of a dog becomes a nuisance. It is however akin to a tort of private nuisance which is the unlawful interference with a specific person’s use or enjoyment of the property they are occupying. 

For the purposes of the DCA the nuisance caused by a barking or howling dog must be more than irritation or annoyance. It must be such that it unreasonably or unjustifiably interferes, disrupts, or inhibits the activities ordinarily carried out by an occupant of residential property.

There is no exact rule of formula for a dog control officer to determine when the barking or howling is unreasonable but, as with a tort, the objective standard of a reasonable person is applied. This means that a nuisance under section 55 of the DCA is created if an officer is satisfied on the established facts that the loud and persistent barking or howling would probably interfere with the average person’s activities on their property. 

12.     A NAN requires the owner of the dogs causing a nuisance to make reasonable provisions on their property to abate that nuisance. These provisions are stipulated in the NAN. The owner is given a seven-day grace period to either comply with or object to the notice. 

13.     It is an offence under section 55(7) of the DCA if an owner who did not object to the notice, fail to comply with the provisions in the NAN any time after the seven-day grace period.

14.     An objection suspends the operation and enforcement of the NAN.  The objection may be directed at the reasonableness of the provisions prescribed in the NAN, or it may question the grounds for issuing the NAN in the first place.

15.     In considering the objection to a NAN, the Regulatory Committee must have regard to: 

a)   The evidence which led to the issuing of the notice

b)   Any evidence that that the objector and their witnesses may present during the hearing; and

c)   Any other relevant matters.

16.     Section 55(3) of the DCA determines that the Regulatory Committee may:

a)   Confirm the NAN

b)   Modify the requirements stipulated in the NAN; or

c)   Cancel the NAN.

Background

Earlier complaints

17.     Mr Davidson resides in a Residential – Mixed Housing Suburban Zone in Epsom. He is the registered owner of a 7-year-old male German Shepherd dog called Dasher.

18.     During the period May 2016 to March 2021 Animal Management received five complaints from different persons about Dasher’s barking. Mr Davidson was supplied with educational material on the possible reasons for and abatement of dogs’ barking. These complaints were closed.

19.     Since 5 April 2021, Animal Management received numerous complaints from an occupant of a neighbouring property about Dasher’s loud and persistent barking. 

a)   RFS 8100817114 received 5 April 2021

The complainant said that the dog started barking at about 7am and continued until about 9am. The dog was barking in two-hour stints nearly every day for between 6 to 8 hours.

Mr Davidson was informed by email of the complaint and given information on the causes of dogs barking and methods to employ to reduce the barking (Attachment A).

b)   RFS 8100825780 received 19 April 2021

The complainant said that the dog started barking at about 7am and was still barking when they left for work. The complainant’s partner is working shifts and their rest time is interrupted by the barking. The dog barks only during the day.

On 20 April 2021, a Barking Complaints Advisor [BCA] discussed the complaint with Mr Davidson by phone. Mr Davidson said that he leaves for work early in the morning and his wife between 8:00 and 8:30 am. He said that they sometimes put a muzzle on the dog.

The BCA informed Mr Davidson that a muzzle was not a corrective method for barking and suggested they consider a vibration collar or sonic bark box; reduce any visual stimulation; walk the dog daily and leave toys outside to keep the dog occupied.

The conversation was followed up with an email and the information brochures (Attachment B).

On 23 April 2021, Mr Davidson’s wife, Denissa Davidson, informed the BCA that Dasher could be barking because children might have been teasing him. She also mentioned that the dog was barking at a person playing drums across the road.  

c)   RFS 8100840231 received 13 May 2021

The complainant said that the dog started barking at about 7 am. The barking pattern varies but it is usually several barks every couple of minutes continuing for an hour or two, repeating between 6 to 8 hours per day.

On 14 May 2021, the BCA emailed Mr Davidson a warning notice that a NAN may be issued if any further substantiated complaints about his dog’s barking were received (Attachment C).

Later the same day Mr Davidson informed the BCA that he did not hear Dasher bark during 3 of the 7 weekdays when he was at home. He said that Dasher could have been mistaken for another dog barking in the neighbourhood.

d)   RFS 8100862098 received 22 June 2021

Complainant said that the dog started barking at about 7 am and then on and off throughout the day. He said that the dog owner’s property is on a main road close to a school and sports ground and the dog barks at the many passers-by. He was sure that it was the German Shepherd dog at 190 Gillies Avenue because he could see the dog barking.

 

 

On 23 June 2021, a Barking Complaints Investigator (BCI) discussed the further complaint with Ms Davidson who is the secondary owner of the dog. Ms Davidson mentioned that they had been using a muzzle on the dog to stop it from barking but that it did not help. The BCA advised her that a muzzle was not a corrective method to stop a dog from barking.

On 27 June 2021, Ms Davidson emailed the BCI denying that Dasher was barking excessively. She explained that Dasher’s barking was an alert response to external stimulation such as being provoked by children, or by a drummer across the road from their property. The email trail is in (Attachment D).

On 29 June 2021, the BCI conducted a property inspection at 190 Gillies Avenue in the presence of Ms Davidson. The purpose of the inspection was to determine what steps the owners could take to abate the dog’s barking. The BCI noted that visual stimulation was one of the causes of Dasher’s barking. He was able to look out on a playground across the road which stimulated him to bark. 

She recommended that the owners install a bark box on the property; walk the dog off the property for at least 1 to 2 hours per day and employ a dog behavioural expert to train the dog not to bark.

On 2 July 2021, the BCI emailed her recommendations to Mr Davidson (Attachment E).   

Complaint resulting in NAN

20.     On 16 August 2021 Animal Management received a further complaint about Dasher’s barking.  RFS 8100891377 refers. On 19 August 2021 the BCI interviewed the complainant and recorded their statement in writing. The statement discloses that Dasher was still barking loudly and persistently, and that it was causing a nuisance to the complainant and their partner (Attachment F).

21.     On 25 August 2021 the BCI issued and emailed a nuisance abatement notice (Attachment G) to Mr Davidson which required him within 7 days of receipt of the notice to take one of the following steps to abate the noise nuisance caused by Dasher’s barking:

a)   Installation of a functioning bark box on the fence at the side gate, or

b)   Put a correctly fitted and working bark collar on Dasher.

22.     The BCI’s formal statement about her investigation of the complaints is under (Attachment H).

23.     On 28 August 2021 Mr Davidson objected to the NAN on the basis that the barking was not persistent (Attachment I).

Subsequent complaints

24.     Although an objection suspends the operation of a NAN, Animal Management is still obliged to investigate subsequent complaints in the event of the NAN being confirmed and enforcement action being warranted.

a)   RFS 8100900299 received 6 September 2021

The complainant’s formal statement is under Attachment J.

He has also supplied Animal Management with a video clip of the dog barking. The video clip was viewed by the Senior Bark Advisor (SBA).  Her observations from the clip are recorded in her statement (Attachment K).

b)   RFS 8100910833 received 30 September 2021

The complainant’s formal statement is under Attachment L. Mr Davidson was informed of this complaint about Dasher’s barking. In an email, Attachment M he admitted that Dasher was barking that evening likely because it had diarrhoea. He denied that Dasher was barking that morning to the extent that the complainant claimed.

During the period 9 to 17 September 2021, Ms Davidson supplied Animal Management with closed-circuit television (CCTV) recordings of Dasher’s barking barking on various days. These recordings were viewed by the SBA. Her observations are recorded in Attachment J.

Tātaritanga me ngā tohutohu

Analysis and advice

25.     German shepherds are intelligent, high-energy dogs who need a good amount of mental stimulation and exercise daily. They are also known to bark frequently and loudly.

26.     Dasher usually starts barking when Mr and Ms Davidson are absent from the property which is likely due to separation anxiety and/or boredom. 

27.     They concede that Dasher barks but put it down to alert barking. Alert barking can become a nuisance if it is excessive. In such instances a responsible dog owner would take steps to minimise any audio or visual stimulation that could lead to excessive barking.

28.     Although they deny that Dasher is barking excessively, they have in the past on their own accord muzzled Dasher to stop him from barking. 

29.     The video clip that accompanied the complaint of 6 September 2021 is typical of Dasher’s barking.

30.     The probabilities are that Dasher is barking loudly and persistently which objectively speaking causes a nuisance to others.

31.     The BCI has assessed that the use of a sonic bark box would best abate the nuisance. An anti-bark collar is not so effective with German Shepherds because of their thick coat.

Tauākī whakaaweawe āhuarangi

Climate impact statement

32.     This is a report about a nuisance caused by the loud and persistent barking of a dog. It has no climate impact.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

33.     This is a report about a nuisance caused by the loud and persistent barking of a dog. It does not require council group views.

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

Local impacts and local board views

34.     This report has not have local impact. Local Board views have not been sought.

Tauākī whakaaweawe Māori

Māori impact statement

35.     This report has no impact on Māori.

Ngā ritenga ā-pūtea

Financial implications

36.     There are no financial impacts resulting from this report.  This report has been reviewed by Kevin Smith, Commercial Finance Manager for Regulatory Services.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

37.     There are no risks in upholding the NAN.

Ngā koringa ā-muri

Next steps

38.     The Regulatory Committee must give Mr Davidson written notice of its decision as soon as practical.

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Attachment A

111

b

Attachment B

121

c

Attachment C

123

d

Attachment D

125

e

Attachment E

129

f

Attachment F

131

g

Attachment G

133

h

Attachment H

135

i

Attachment I

137

j

Attachment J

139

k

Attachment K

141

l

Attachment L

143

m

Attachment M

145

     

Ngā kaihaina

Signatories

Author

Chrisna Nortje, Principal Specialist Animal Management

Authorisers

Elly Waitoa, Manager Animal Management

James Hassall - General Manager, Licensing and Regulatory Compliance

Craig Hobbs - Director Regulatory Services


Regulatory Committee

09 November 2021

 

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Regulatory Committee

09 November 2021

 

PDF Creator

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Regulatory Committee

09 November 2021

 

PDF Creator

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Regulatory Committee

09 November 2021

 

PDF Creator

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Regulatory Committee

09 November 2021

 

PDF Creator


Regulatory Committee

09 November 2021

 

PDF Creator

PDF Creator


Regulatory Committee

09 November 2021

 

PDF Creator

PDF Creator


Regulatory Committee

09 November 2021

 

PDF Creator

PDF Creator


Regulatory Committee

09 November 2021

 

PDF Creator

PDF Creator


Regulatory Committee

09 November 2021

 

PDF Creator

PDF Creator


Regulatory Committee

09 November 2021

 

PDF Creator

PDF Creator


Regulatory Committee

09 November 2021

 

PDF Creator

PDF Creator


Regulatory Committee

09 November 2021

 

PDF Creator

PDF Creator