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

 

Date:

Time:

Venue:

 

Tuesday, 14 December 2021

10.00am

This meeting will be held remotely and a recording of the meeting will be available on: 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

 

9 December 2021

 

Contact Telephone: 021836328

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

14 December 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

6.1     Local Board Input: Hibiscus and Bays Local Board - Notice of Motion - Summer set net control                                                                                     10

7          Extraordinary Business                                                                                              10

8          Hibiscus and Bays Local Board Decision:  Notice of Motion - Member L Willis - Summer set net control                                                                                              11

9          Appointment of Hearings Panel to hear submissions on the draft Regional Parks Management Plan                                                                                                        91

10        Resource Consents Appeals: Status Report 14 December 2021                           95

11        Summary of Regulatory Committee Information - updates, memos and briefings - 14 December 2021                                                                                                           109

12        Objections to stormwater works at 11 Spode Place and 21 Border Road, Henderson                                                                                                                                     121

13        Objection to a menacing dog classification - Moala                                             147

14        Objection to a menacing dog classification - Frykberg                                        179

15        Objection to disqualification of dog owner - Whitcombe                                     201

16        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, 9 November 2021, 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.

 


 

 

6.1       Local Board Input: Hibiscus and Bays Local Board - Notice of Motion - Summer set net control

Te take mō te pūrongo

Purpose of the report

1.       Leanne Willis, member of the Hibiscus and Bays Local Board, will speak to the committee about summer set net control at Matakatia Bay.

2.       This input relates to a report on the committee agenda Notice of Motion - Member L Willis - Summer set net control: Hibiscus and Bays Decision.

 

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a)      receive the Hibiscus and Bays Local Board input regarding the Notice of Motion: Summer set net control at Matakatia Bay, and thank local board member Leanne Willis for attending the meeting.

 

 

 

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

14 December 2021

 

Hibiscus and Bays Local Board Decision:  Notice of Motion - Member L Willis - Summer set net control

File No.: CP2021/17929

 

  

 

Te take mō te pūrongo

Purpose of the report

1.       To consider the decision from the Hibiscus and Bays Local Board in relation to the implementation of a seasonal set net control at Matakatia Bay as currently in force at other beaches on the Whangaparāoa Peninsula.

Whakarāpopototanga matua

Executive summary

2.       At its meeting held on 16 September 2021, the Hibiscus and Bays Local Board considered a notice of motion from Member Willis. The notice with supporting information is appended as attachment A.

3.       The Hibiscus and Bays Local Board resolved as follows:

Resolution number HB/2021/104

That the Hibiscus and Bays Local Board:

a)   propose the Regulatory Committee of the Auckland Council investigate the implementation of a seasonal set net control at Matakatia Bay as currently in force at other beaches on the Whangaparāoa Peninsula.

4.       The committee is requested to consider the recommendation from the Hibiscus and Bays Local Board.

 

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a)      consider the recommendation of the Hibiscus and Bays Local Board, which was made at its 16 September 2021 business meeting, regarding the implementation of a seasonal set net control at Matakatia Bay.

b)        request through the Chief Executive that the General Manager responsible for bylaws, provide a report early in 2022, on the scope, process and resourcing to make a set net ban under the Auckland Council Public Safety and Nuisance Bylaw 2013 .

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Notice of Motion and supporting information

13

      

Ngā kaihaina

Signatories

Author

Sophie White - Kaitohutohu Mana Whakahaere / Governance Advisor

Authoriser

Craig Hobbs - Director Regulatory Services

 


Regulatory Committee

14 December 2021

 

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Regulatory Committee

14 December 2021

 

Appointment of Hearings Panel to hear submissions on the draft Regional Parks Management Plan

File No.: CP2021/14511

 

  

 

Te take mō te pūrongo

Purpose of the report

1.       To establish a hearings panel and appoint members including independent commissioners, to undertake the hearings process for the draft Regional Parks Management Plan.

Whakarāpopototanga matua

Executive summary

2.       Submissions on the draft Regional Parks Management Plan (the draft plan) will close on 4 March 2022. The consultation period is for the two months required under the Reserves Act with additional time for the summer break.

3.       This report seeks approval to establish a hearings panel (panel) to hear submissions on the draft plan in May 2022.

4.       We recommend that the panel consists of two independent hearings commissioners, two Parks, Arts, Community and Events (PACE) committee members and one member of the Independent Māori Statutory Board (IMSB). The panel will hear submissions, consider amendments and recommend changes to the draft plan to the PACE committee.

5.       Establishing a panel consisting of commissioners, elected members and an IMSB member will ensure the panel has Reserves Act expertise and a level of independence, whilst providing council and kaupapa Māori knowledge, input and decision-making in the hearing process.

6.       The decision to approve the final plan remains with the PACE committee.

 

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a)      appoint two independent commissioners (with Reserves Act and kaupapa Māori experience), two elected members and an Independent Māori Statutory Board member to form a hearings panel to consider submissions received on the draft Regional Parks Management Plan

b)      direct that the hearings panel will consider the written submissions received, input from local boards and mana whenua, hear oral submissions and make recommendations for changes to the draft Regional Parks Management Plan in accordance with the Reserves Act 1977 and other relevant legislation, for consideration by the Parks, Art, Community and Events Committee

c)      delegate authority to the Chairperson of the Regulatory Committee to make replacement appointments should any panel member appointed under recommendation a) above be unavailable.

 

Horopaki

Context

7.         The PACE committee has decision-making responsibility for regional parks. In 2020, the committee commenced a review of the Regional Parks Management Plan 2010, in accordance with requirements under the Reserves Act 1977 and the Waitākere Ranges Heritage Area Act 2008 (PAC/2020/36).

8.       The PACE committee resolved to notify a draft plan for public consultation on 2 December 2021. The consultation period is for the two months required under the Reserves Act with additional time for the summer break, finishing on 4 March 2022. The PACE committee also recommended to this committee that councillors L Cooper and C Fletcher and an IMSB member be appointed to the hearings panel (PAC/2021/69).

9.       The council holds regional park land under the Local Government Act or the Reserves Act. The regulatory committee is responsible for the appointment of decision makers under these acts. (refer 3.13 Regulatory Committee Policy].

10.     Under section 41 of the Reserves Act hearings must be held following written submissions. Section 41(10) enables the administering body to determine its own procedure at the hearing. The special consultative procedure under section 83 of the Local Government Act 2002 also applies, including 83(d), which requires the local authority to provide an opportunity for people to present their views.

11.     In accordance with Auckland Council process, following the period for written submissions closing, local boards will be provided with an opportunity to comment, in April 2022. Hearings are planned to take place in May 2022 with a report from the hearings panel targeted to be prepared by the end of June 2022. The amended plan is intended to be presented to the PACE committee for approval in August or September 2022.

Tātaritanga me ngā tohutohu

Analysis and advice

12.     The 28 regional parks together form 41,000ha of public open space and have a high profile. Many long-term stakeholders have significant involvement in the parks and some put in long submissions to the first round of consultation.

13.     In response to our call for suggestions for the draft plan in 2020, we received suggestions from 758 submitters and a petition. Mana whenua also have a high level of interest in the regional parks.

14.     Based on the level of interest we have received to date we anticipate receiving a reasonably large volume of written submissions and are planning for a week of hearings. \

15.     A hearings panel of five will help to ensure we can enable the panel’s work to be undertaken within a fairly tight timeframe. We recommend two independent commissioners, one with Reserves Act experience and one with kaupapa Māori expertise. In addition we recommend two members of the PACE committee and a member from the Independent Māori Statutory Board. A hearings panel of five will provide balance and a range of expertise and perspectives.

Tauākī whakaaweawe āhuarangi

Climate impact statement

16.     The decisions in this report are administrative and we expect them to have no direct impact on greenhouse gas emissions.

17.     The draft plan proposes to embed climate mitigation and adaptation policies and we anticipate receiving many submissions on the topic. 

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

18.     The Hearings team provided advice about the hearings process and options for the hearings panel.

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

Local impacts and local board views

19.     The composition of the hearings panel needs to be regional in nature as this is an omnibus plan covering 28 regional parks located throughout the region.

20.     The regional parks are situated in five local board areas and comments are likely to be received from the community in respect to specific parks as well as on the plan itself.

21.     Local boards were invited to input suggestions for the draft plan and 245 suggestions were received from 13 local boards.

22.     We anticipate a similar level of interest from local boards on the draft plan. Local boards will have the opportunity to provide written and oral input to the hearings panel. As they will have the opportunity to reflect on community submissions in giving their input, they will be well-placed to provide elected members’ views on local issues.

Tauākī whakaaweawe Māori

Māori impact statement

23.     Mana whenua have expressed strong interest in having greater involvement in regional parks at all levels. By inviting two Māori representatives – both an IMSB member and an independent commissioner – the hearings panel will be qualified to consider input from mana whenua and to provide recommendations on relevant issues.

Ngā ritenga ā-pūtea

Financial implications

24.     There are no financial implications beyond those normally associated with the appointment of commissioners. The cost of the independent commissioners is covered within the budget provided for the hearings process.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

25.     The risks and proposed mitigations are in the following table.

Risk

Mitigation

There is a risk the panel may require more time than planned if a larger than expected number of written or oral submissions are received.

We consider it is prudent to appoint two independent commissioners, as this will help contribute to a more robust process and ensure availability.

With five panellists, the panel can set its quorum and arrange its times to enable the process to continue with as many members as possible.

A panel member may opt out due to an unexpectedly large time commitment or due to conflicting time demands from fresh sources.\

With a membership of five, the panel could continue with fewer members or seek an additional member under delegation from the chair of the regulatory committee.

If a panel is not appointed now, suitably qualified commissioners may not be available next year.

It is prudent to appoint the hearings panel now, to secure the independent commissioners and enable the elected members and IMSB member to plan ahead to allocate time to this task.

 

Ngā koringa ā-muri

Next steps

26.     The independent commissioners will be engaged.

27.     The panel will be scheduled to convene in late April 2022 to prepare for hearings in May 2022.

 

Ngā tāpirihanga

Attachments

There are no attachments for this report.    

Ngā kaihaina

Signatories

Author

Jo Mackay - Project Manager

Authoriser

Craig Hobbs - Director Regulatory Services

 


Regulatory Committee

14 December 2021

 

Resource Consents Appeals: Status Report 14 December 2021

File No.: CP2021/18998

 

  

 

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

 

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a)      receive the Resource Consents Appeals: Status Report 14 December 2021

 

Horopaki

Context

3.       As at 2 December 2021, there are 28 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.

4.       The principal specialist planners - resource consents, continue to resolve these appeals expeditiously. In the period since preparing the previous status report on 26 October 2021, there has been one new appeal lodged and two resolved. The small number of new appeals reflects the small number of council hearings and decisions released during the past four months.

5.       The appeal by Tambrae Holdings Limited is against council’s decision to refuse their applications to subdivide around the approved development at 4a Riverside Drive, Point Wells. The sites are located within the Point Wells Subdivision Variation Control Overlay, which provides for a minimum net site size of 1,000m2.  The proposal was to create Lot 1 with a net site area of 514m2, and Lot 2, a rear site of 833m2. The application was publicly notified and proceeded to hearing. The proposal overall is non-complying.

Tātaritanga me ngā tohutohu

Analysis and advice

6.       To receive the report as provided.

Tauākī whakaaweawe āhuarangi

Climate impact statement

7.       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

8.       Not applicable.

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

Local impacts and local board views

9.       Not applicable.

Tauākī whakaaweawe Māori

Māori impact statement

10.     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.

11.     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

12.     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

13.     Not applicable.

Ngā koringa ā-muri

Next steps

14.     Not applicable.

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Current Resource Consent Appeals as at 2 December 2021

97

     

Ngā kaihaina

Signatories

Author

Robert Andrews - Principal Specialist Planning

Authorisers

Ian Smallburn - General Manager Resource Consents

Craig Hobbs - Director Regulatory Services

 


Regulatory Committee

14 December 2021

 

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Regulatory Committee

14 December 2021

 

Summary of Regulatory Committee Information - updates, memos and briefings - 14 December 2021

File No.: CP2021/19113

 

  

 

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.       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’.

5.       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 report 14 December 2021

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Regulatory Committee Forward Work Programme

111

     

Ngā kaihaina

Signatories

Author

Sophie White - Kaitohutohu Mana Whakahaere / Governance Advisor

Authoriser

Craig Hobbs - Director Regulatory Services

 


Regulatory Committee

14 December 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

 

 

 

 

 

 

 

 

 

ü

 

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

 

 

 

 

 

 

 

 

ü

 

 

Animal management Bylaw Review

Community and Social Policy

This Bylaw promotes responsible animal ownership, including minimising impact on neighbours, the public and preventing damage.

 

Decision on whether a bylaw still needed and whether any changes should be made and to confirm, amend, replace or revoke the bylaw. If required, recommend a statement of proposal and appoint a Bylaw Panel.

 

Progress to Date:

Findings Report 17 March 2020
Link to decision

Options Report 17 November 2020

Link to decision

Decision Report 11 May 2021

Link to decision

 

 

 

 

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

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

14 December 2021

 

Objections to stormwater works at 11 Spode Place and 21 Border Road, Henderson

File No.: CP2021/15880

 

  

 

Te take mō te pūrongo

Purpose of the report

1.       To hear and determine objections to proposed stormwater works at 11 Spode Place and 21 Border Road, Henderson 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 proceed with the extension of the public stormwater network from 18 Imperial Place across land at 11 Spode Place (along property boundary of 11 Spode Place and 13 Spode Place), and 21 Border Road as required for construction workspace only (temporary occupation), pursuant to clause 1(e) of Schedule 12 of the Local Government Act 2002.

3.       The Corban Reserve stormwater upgrade project has been designed to safeguard public health and safety through the elimination of methane and leachate infiltration from the closed landfill into the existing public stormwater network. It is a high priority project for Healthy Waters.

4.       The project will also alleviate flooding risk and provide for the future growth of the upstream catchment. Water quality of the Opanuku Stream is also anticipated to improve following the elimination of leachate discharge through the stormwater network. 

5.       The project is structured into three stages. Stage one of the proposed works involves the construction of a 712-metre stormwater pipe from 18 Imperial Place along Border Road to Opanuku Stream (see stage one overview in Attachment A) (the Works) and is estimated to take up to 18 months to complete. Resource consent for the works was granted in November 2021. It is proposed that the pipe would be installed using a tunnel boring machine, which is a trenchless methodology designed to minimise disruption caused by construction.

6.       The stage one works at 11 Spode Place will take approximately nine months. The construction of the stormwater chamber at Murillo Place intersection requires additional working space (laydown area only) at 21 Border Road to be temporarily occupied for 11 months.

7.       Healthy Waters received objections from two property owners who have not agreed to allow access to their property for the project works and have lodged section 181 Local Government Act written objections (together the Objections) to the project works impacting their properties.

8.       The owners of 11 Spode Place (Objector A) have objected to the works proposed at 11 Spode Place. Council-led efforts to facilitate resolution have been unsuccessful and Objector A lodged a section 181 written objection to the works (Objection A) set out in their written objection (Attachment B).

9.       The owners of 21 Border Road (Objector B) have objected to the works proposed at 21 Border Road. 14.          Objector B lodged a section 181 written objection to the works (Objection B) and set out in Attachment C.

10.     Healthy Waters addressed all queries Objector B raised and is expecting to shortly receive written agreement from Objector B to the works affecting their property followed by a withdrawal of the section 181 Local Government Act objection.

11.     If the Regulatory Committee determines that council can proceed with the works, construction will commence in January 2022. The stage one works will take approximately 18 months to complete of which the works at 11 Spode Place and 21 Border Road will take approximately nine and 11 months respectively.

12.     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

Recommendations

That the Regulatory Committee:

a)      hear and determine the Objections by the owners of 11 Spode Place and 21 Border Road pursuant to clause 1(e) of Schedule 12 of the Local Government Act 2002

b)      resolve that the Council proceed with the construction of the new public stormwater network from 18 Imperial Place across land at 11 Spode Place to the Opanuku Stream (as shown in (see Attachment E – Temporary Works and Attachment F – Permanent Works to the agenda report), pursuant to clause 1(e) of Schedule 12 of the Local Government Act 2002

c)      resolve that the council proceed with the construction of the new public stormwater network from 18 Imperial Place to the Opanuku Stream by utilising the land at 21 Border Road as required for construction works area (as shown in Attachment D to the agenda report), pursuant to clause 1(e) of Schedule 12 of the Local Government Act 2002.

Horopaki

Context

13.     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. 

14.     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’. 

15.     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. 

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

Corban Reserve stormwater upgrade project works

17.     The Corban Reserve stormwater upgrade project has been designed to safeguard public health and safety through elimination of methane and leachate infiltration from the closed landfill into the existing public stormwater network.

18.     The project will also alleviate flooding risk and provide for the future growth of the upstream catchment. Water quality of the Opanuku Stream is also anticipated to improve following the elimination of leachate discharge through the stormwater network.

19.     The Corban Reserve stormwater project is structured into three stages. Stage one consists of the construction of a stormwater pipe from 18 Imperial Place in Henderson to the Opanuku Stream to divert the stormwater network away from the Corban Reserve closed landfill. Stage two will decommission the existing stormwater pipe underneath Corban Reserve. Stage three will upgrade the undersized local stormwater network between 165 and 139 Henderson Valley Road, Henderson.

20.     The proposed works in stage one involves the construction of a 712-metre length of 2100mm diameter stormwater pipe from 18 Imperial Place along Border Road to the Opanuku Stream (see Attachment A). Council acquired 18 Imperial Place in 2018 to facilitate the construction of the new inlet structure, and this property will be sub-divided once works are complete and sold.

21.     Resource consent to construct the 2100mm diameter pipeline and the associated works was granted on 22 November 2021.

22.     The stage one works will take approximately 18 months to complete, of which the works at 11 Spode Place (the inlet structure) will take approximately nine months (see Attachment E – Temporary Works and Attachment F – Permanent Works). The construction of the mid-chamber at Murillo Place intersection requires additional working space (laydown area only for contract works) at 21 Border Road to be temporarily occupied for 11 months (see Attachment D).

Healthy Waters has received two objections from property owners

23.     Healthy Waters received two Objections from property owners who have not agreed to allow access to their property for the Project works and have lodged the section 181 Local Government Act objection (the Objection) to the Project works impacting their property.

Objection A – objection to works proposed at 11 Spode Place

24.     The owners of 11 Spode Place (Objector A) have objected to the works proposed at 11 Spode Place directly impacting their property.

25.     Healthy Waters with its specialists discussed the project with the Objector A at 11 Spode Place, explaining the purpose and the extent of the construction works on and around their property, including the possible impacts.

26.     During several meetings concerns were raised by Objector A around the health and safety of Objector A’s children. Healthy Waters agreed that the work site would be temporarily fenced off from their property with a solid plywood fence with viewing holes with plexi glass for children to view works from a distance if they wish.

27.     Subsequent meetings were held with Objector A to determine if the impact on their property could be reduced through a reduction in occupation area and the realignment of the stormwater pipe to equally share the pipe alignment between 11 Spode Place and 13 Spode Place.

28.     Healthy Waters agreed with Objector A to undertake a valuation of 11 Spode Place in December 2019 to determine the market value of the property for the purpose of assessing possible options for Objector A as compensation for the occupation of their property, including a purchase option.

29.     The options provided to Objector A following the valuation process were done on a “without prejudice” basis, subject to Delegated Financial Authority approval. As a consequence of Auckland Council operating under the Emergency Budget 2020, Objector A was notified on 29 October 2020 that the council was no longer able to offer any of the options identified above.

30.     Council-led efforts to otherwise facilitate resolution with Objector A, and as further discussed in the analysis and advice section of this report, have been unsuccessful.

31.     Objector A lodged a written objection to the works, summarised below and set out in Attachment B.

Objection B – objection to works proposed at 21 Border Road

32.     During the design of the new stormwater network, the Healthy Waters design team became aware of the additional working space required for the construction of the mid-chamber at Murillo Place intersection.

33.     The owners of 21 Border Road (Objector B) have objected to the works proposed at 21 Border Road.

34.     Initial discussions were held with the property owner at 21 Border Road in October 2019 to provide the owners with an overview of the project

35.     Healthy Waters have tried to limit the disruption to the property by reducing the affected area as much as possible and to reduce the need to remove existing trees. The affected area is currently limited to the area deemed necessary for health and safety purposes.

36.     Objector B lodged a written objection to the works on the following grounds (set out fully in Attachment C):

·        section 181 notice lacking information, unclear of the proposed route of the 2100mm diameter pipeline and if any part of the pipeline within their property.

·        no details given as to when work affecting 21 Border Road would take place.

·        no indication on how long the works will take and occupation of property.

37.     Healthy Waters addressed all queries Objector B raised as part of their objection. Additional reinstatement items were included following a recent meeting with the objector and their legal representative. Further to that meeting Healthy Waters is expecting to shortly receive written agreement from Objector B followed by a withdrawal of the section 181.

Construction of the stormwater works

38.     If the Regulatory Committee determines that the council proceed with the works, construction will commence in January 2022. It is proposed that the pipe would be installed by tunnelling by means of a tunnel boring machine, which is a trenchless methodology designed to minimise disruption caused by construction. The stage one works will take approximately 18 months to complete of which the works at 11 Spode Place and 21 Border Road will take approximately nine and 11 months respectively.

39.     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.

Tātaritanga me ngā tohutohu

Analysis and advice

40.     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. 

41.     In this case, the council assessed four options for resolving the health and safety risk of the pipe through the landfill and the flooding risk of the Upper Waitaro Stream properties.

42.     These options were: 

Option 1:     Do nothing, continue with operation of existing assets. Continue bi-annual gas monitoring and leachate sampling.

Option 2:     Reline pipe through landfill and brick culvert below Henderson Valley Road. Install flood alarms and warning signs along the Upper Waitaro Stream.

Option 3:     Reline landfill pipe and brick culvert below Henderson Valley Road. Install high level overflow to Henderson Valley Road. Acquire two Kāinga Ora properties further downstream at risk of flooding. Install flood alarms and warning signs along the Upper Waitaro Stream.

 

 

 

Option 4:     Border Road network diversion (preferred option) – construct new stormwater network, reline section under Henderson Valley Road, create new inlet / outlet structure. Daylight stormwater pipe within Murillo Reserve. Decommission pipe under landfill and recontour Corban Reserve (Stage 2).

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

Table 1. Analysis of alignment options against various criteria 

Criteria:

Option 1

Option 2

Option 3

Option 4

Solution for leachate and methane

No

Reduced

Reduced

Resolved

Access for future maintenance

No

No

No

Yes

Health and safety risks associated with closed landfill addressed

No

No

No

Yes

Achieves flood reduction

No

No

Yes, slight reduction

Yes, reduced

Achieves future growth

No

No

No

Yes

Preferred Option: Option 4  

·    Stops landfill gasses entering the stormwater network, resolving significant health and safety risk.

·    Substantially reduces the magnitude and frequency of flooding.

·    Enables future development of the Upper Waitaro catchment.

·    Environmental benefit by reducing leachate being discharged to the Opanuku Stream.

Key

Most positive

Moderately positive

Moderately negative

Most negative

Analysis of options for Corban Reserve stormwater upgrade

44.     Option 1 - do nothing, is not recommended as it maintains the operation of the existing culvert through the landfill and does not eliminate the health and safety risks associated with the culvert passing through the landfill site. Continued existing bi-annual gas monitoring and leachate sampling at Corban Reserve and maintenance access would be a health and safety issue and un-manned inspections would need to be adopted.

45.     Option 2 – is not recommended, as it consists of lining the existing asset through the landfill and the brick culvert below Henderson Valley Road. This does not eliminate the health and safety risks associated with the culvert passing through the landfill site. Bi-annual gas monitoring and leachate sampling at Corban Reserve would need to continue for the duration of the asset’s lifespan. Maintenance access would be a health and safety issue and un-manned inspections would need to be adopted.

46.     Option 3 – is not recommended as it would involve the same as Option 2 with the addition of a high-level overflow pipe installed between 13 Spode Place and 139 Henderson Valley Road to connect to the existing network. Council would need to acquire three additional properties, one to construct the new inlet at 13 Spode Place and two that are at risk of habitable floor flooding as a result of the works further downstream.

 

47.     Option 4 – is the preferred option and consists of the following:

·        constructing a 2100 mm diameter stormwater pipeline from 18 Imperial Place to Border Road Esplanade along Border Road (712 m), installed using a trenchless method

·        upgrading the pedestrian bridge between Spode Place and Imperial Place

·        re-grading of the Upper-Waitaro Stream to the new inlet structure at 18 Imperial Place including naturalisation of the stream and native planting

·        upgrading Murillo Reserve, daylighting the mid-section of Waitaro Stream and adding a boardwalk, native planting and pathways

·        installing a low flow pipe between Murillo Place and Murillo Reserve

·        upgrading Border Road Esplanade Reserve with native planting, a new boardwalk and walkway connecting the reserve with Taranui Place

·        decommissioning the stormwater pipe under Corban Reserve

·        upgrading Corban Reserve by re-contouring slopes and planting and installing new paths and drainage

·        upgrading the existing pipeline along Henderson Valley Road connecting to the mid-section of Waitaro Stream

·        repairing the existing stormwater brick culvert under Henderson Valley Road connecting to Waitaro Stream that is in poor condition.

Summary of objections received

48.     Table 2 provides a summary of the objection received from Objector A dated 26 January 2021 (Attachment B).

Table 2. Summary of objection from Objector A

Objection points

There was an admission from the council on injurious affection to be $5,000 in 2019 and owners wish to have this reassessed.

Healthy Waters comment – on completion of the works, under the Public Works Act 1981 the owners will be entitled to make a claim for injurious affection (if there is any) to their land caused by the works.

COVID-19 is a health and safety risk and the objector does not want any workers entering their property.

Healthy Waters comment – the works will be carried out in accordance with the applicable COVID-19 alert levels permitting construction activity, and any staff or contractors will be required to use masks, contact tracing and otherwise comply with any health and safety measures imposed by law or council policy.

That the works will impact on their right to peaceful enjoyment of their property in two ways:

·   impact family time spent in the garden and poses a health and safety risk for their children

·   trees impacted by the works are mature and removing the trees will impact on their privacy.

Healthy Waters comment – the site will be remediated appropriately on completion of the works, as far as practicable on a like for like basis.

 

 

 

 

49.     Table 3 provides a summary of the objection received from Objector B via their legal representative dated 10 March 2021 (Attachment C), as well as the response from Healthy Waters which was provided on 23 March 2021.

Table 3. Summary of objection from Objector B

Objection points

Summary of Healthy Waters response

Section 181 notice lacking information, it is unclear the proposed route of the 2.1 metre pipeline and if any part of the pipeline within their property would affect 21 Border Road.

The plans provided show the location of the pipe and works as well as the temporary working space on the objector’s property.

Confirmed that the main pipeline will be installed within the road corridor. The shaft will also be located in the intersection of Border Road and Murillo Place. No part of the work will be under 21 Border Road. 

No details given as to when work affecting 21 Border Road would take place.

·   Following the tendering process, the council will be looking to award the construction contract in October 2021 with the works around Murillo Place intersection starting towards the end of October 2021. Initial works will comprise the construction of the temporary road through Murillo Reserve and the closure of the road intersection at Murillo Place. Access to and from 21 Border Road will still be maintained from Border Road.

·   In April 2022 the excavation of the central shaft will begin and the first tunnelling drive towards Border Esplanade will commence.

·   In August 2022 the tunnelling machine will be reinstated in the central shaft (Murillo/Border intersection) for the second phase of tunnelling towards 18 Imperial Place. These works will continue until May 2023 the estimated date for demobilisation of the Murillo intersection work site.

·   During this time, the property owner will experience:

an increase in heavy vehicles and machinery around Border Road and Murillo Place during the works

construction related noise and vibration during the works (the tunnelling machine will be operating underground continuously 24/7)

other works, such as excavation will be limited to within normal working hours of Monday to Saturday 7.30am to 6pm.

 

No indication on how long the works will take and occupation of property would be required.

It is anticipated that temporary occupation of 21 Border Road (as indicated in the drawing provided) will be required to provide additional working space to the contractor from October 2021 to May 2023. The specific dates will be discussed with property owner closer to the time when a contractor is appointed to the project and further certainty regarding workspace requirements are known.

Negotiation with the landowners

50.     Discussions with Objector A have been ongoing since February 2018, with Healthy Waters making its engineers and specialists available to discuss the works with Objector A and ways to limit the disruption to the affected property.

51.     Healthy Waters made several design changes to accommodate Objector A’s concerns raised during site meetings, including:

·        changed the alignment of the pipe to equally divide the pipeline footprint between 11 and 13 Spode Place

·        the proposed inlet structure was moved outside 11 Spode Place. The inlet structure is now wholly situated within 18 Imperial Place

·        reduced the required area of temporary occupation

·        limited the number of trees to be removed.

52.     Discussions with Objector B have been ongoing since October 2019, with Healthy Waters making available its engineers and specialists to discuss with Objector B the works and ways to limit the disruption to the affected property.

53.     Since the objection was received council has engaged with a preferred supplier to carry out the works. The supplier has indicated that a single tunnel drive will be the preferred option with the construction of a slightly smaller mid-chamber as proposed by council. This would mean that the property would be required for the 11 months instead of the period from October 2021 to May 2023. Healthy Waters agreed to additional reinstatement requirements requested by Objector B during site discussions at a meeting on 27 October 2021.

54.     Further to that meeting, and at the time of writing, Healthy Waters is expecting to shortly receive written agreement from Objector B followed by a withdrawal of the section 181 Local Government Act objection.

Recommended stormwater management option

55.     Staff recommend that construction of the proposed stormwater works proceed at 11 Spode Place and 21 Border Road as per option four in this report. Works are expected to take around nine months to complete the inlet structure within 18 Imperial Place and associated temporary works within 11 Spode Place. Works are expected to take around 11 months to complete the mid-chamber works at the Murillo Place intersection, for which 21 Border Road is required for construction workspace.

56.     The works are necessary to enable the future decommissioning of the existing stormwater pipe under the landfill at Corban Reserve to eliminate the health and safety risk to the community and operational staff. If the Regulatory Committee resolves that the works may proceed, staff will work with the landowners to ensure minimal disruption occurs.

 

 

Tauākī whakaaweawe āhuarangi

Climate impact statement

57.     The proposed project will not have a significant impact in terms of climate mitigation (reducing emissions). It will contribute to adaptation by increasing Auckland’s resilience to climate impacts. Preparing Auckland for the impacts of climate change is a key goal of Te Tāruke-ā-Tāwhiri: Auckland's Climate Plan.

58.     The upgrades to the stormwater network at Corban Reserve are based on modelling of climate change impacts, including more extreme weather events. They will provide increased capacity in the stormwater network to manage these climate impacts.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

59.     The council have been working collaboratively with Watercare Services Limited on this project to identify opportunities for synergies between planned works in the Henderson area. Healthy Waters will be collaborating with Watercare to install a section of the proposed North Harbour No.2 watermain within the stormwater works area. Collaboration on these projects will reduce disruption to the public.

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

Local impacts and local board views

Local impacts

60.     This project will have significant positive benefits for people living in the surrounding area as it will eliminate levels of landfill gas and leachate entering the stormwater pipes and the associated health and safety risks. The new pipeline will help increase the capacity of the local stormwater network and reduce flooding of residential properties upstream of the pipe under Corban Reserve.

61.     As part of stage one of the physical works, a section of the stormwater pipe within Murillo Reserve will be daylighted with new pedestrian bridge and planting, providing new amenities for the local community. An additional access point to the Twin Stream Cycleway will be created within Border Road Esplanade from Taranui Place, and improved planting will be provided by the entrance to the esplanade at Border Road. Corban Reserve will be upgraded as part of stage two of the Corban Reserve stormwater upgrade project.

Local board views

62.     The Henderson-Massey Local Board provided feedback on the proposed stormwater upgrade project at a workshop in August 2018. The board expressed support for the project and requested specific consideration be given to the health and safety issues associated with the site. The board also indicated its support for the upgrades of the Murillo Reserve, Border Road Esplanade and Corban Reserve, which will occur in stages one and two of the project.

Tauākī whakaaweawe Māori

Māori impact statement

63.     The project brief was provided to mana whenua for review in October 2016 and updated in January 2018. A site visit was hosted by Healthy Waters with Te Runanga o Ngāti Whātua and Te Kawerau ā Maki who expressed interest in the proposed project in August 2018. Both iwi expressed support for the project and requested that erosion of Opanuku Stream to be considered as part of project design. The potential erosion impact on Opanuku Stream has been carefully mitigated in the design of the outfall. A Cultural Impact Assessment from Te Kawerau ā Maki was received in October 2018 confirming general support for the works as per the site visit.

64.     The current discharge of leachate is severely detrimental to the mauri of both the Waitaro Stream and Opanuku Stream. This will be restored through the elimination of leachate by this project. The mauri of two sections of the Waitaro Stream will also be significantly improved through regrading, naturalisation and planting as part of the restoration initiatives to be undertaken at Murillo Reserve and the Upper Waitaro Stream.

Ngā ritenga ā-pūtea

Financial implications

65.     Option 4 described above in the analysis section is the preferred option as it would eliminate the existing health and safety risks associated with the closed landfill, improve network capacity, improves amenities of the reserves and provides for a healthier receiving stream environment. If approved, the pipe will be constructed by the council, through planned-for expenditure in its capital works programme.

66.     The project will be funded through the Long-term Plan 2021-2031, which will be sufficient to fund the construction contract and other project elements. The project is currently subject to a tender award process which is being finalised following approval from the Strategic Procurement Committee on 2 November 2021 (STR/2021/53).

67.     Further delays to the project including the further exploration of alternative options and or additional objections will add to the overall costs of the project and may require additional funding.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

68.     The key risks and proposed mitigations are outlined below in Table 4.

Table 4: Risks and proposed mitigation for the Corban Reserve stormwater upgrade project

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.

Delay in the construction of the pipeline would pose health and safety risks to maintenance workers and community

Likelihood: Low

Consequence: High

Continuous monitoring of landfill gasses and leachate sampling will be undertaken.

Health and safety risk of workers during construction 

Likelihood: Low

Consequence: Low

Works will be delivered under NZS3910 provisions, which require a site-specific health and safety plan. The subject health and safety plan will be reviewed and monitored by technical specialists as required by contract specifications.  

Ngā koringa ā-muri

Next steps

69.     If the Regulatory Committee determines to proceed with the project (under Schedule 12 clause 1(e)(ii)), the next step will be to notify each of the Landowners in writing of the council’s intention to proceed with the works. The works are proposed to commence in January 2021.

70.     Each of the Landowners 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

Stage one works overview

133

b

11 Spode Place objection (Objection A)

135

c

21 Border Road objection (Objection B)

139

d

Temporary works 21 Border Road

141

e

Temporary works 11 Spode Place

143

f

Permanent works 11 Spode Place

145

     

Ngā kaihaina

Signatories

Authors

Gerhard van Rooyen – Senior Healthy Waters Specialist

Mark Dunlop – Senior Healthy Waters Specialist

Authorisers

Craig McIlroy - General Manager Healthy Waters

Barry Potter - Director Infrastructure and Environmental Services

Craig Hobbs - Director Regulatory Services

 



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Objection to a menacing dog classification - Moala

File No.: CP2021/18898

 

  

Te take mō te pūrongo

Purpose of the report

1.       To hear and determine the objection by Mr Moala against the classification of his dog, Heilala, as a menacing dog under section 33A of the Dog Control Act 1996 (DCA).

Whakarāpopototanga matua

Executive summary

2.       Mr Moala is the owner of a 2-year and 2-month-old German Shepherd entire female dog called Heilala, and a 1-year and 5-month-old German Shepherd entire male dog called Stevie.

3.       On 18 March 2021 Animal Management received a complaint that a German Shepherd dog had attacked a jogger near the driveway of the Mr Moala’s property. The dog was identified as Heilala from photos taken by the investigating animal management officer.

4.       Section 33A of the DCA provides that the Auckland Council may classify a dog as menacing when it considers that that dog may pose a threat to any person, stock, poultry, domestic animal, or protected wildlife because of any reported behaviour of the dog.

5.       Where a dog is classified as menacing the owner of the dog must:

a)   Not allow the dog to be at large or in any public place, or in any private way, without it being muzzled; and

b)   Within 1 month after service of the notice provide a certificate by a veterinarian that the dog is or has been de-sexed. If the dog is not in a fit condition to be de-sexed within that time, the dog owner must provide a certificate by a veterinarian explaining the reasons for that and specifying the date by when the dog can be de-sexed.

6.       On 18 March 2021 Animal Management classified Heilala as menacing by deed because it considered that the dog may pose a threat to the safety of persons or animals. The notice of classification was served on Mr Moala on 27 March 2021 (attachment A).

7.       On 30 March 2021 Mr Moala objected to the classification (attachment B). On 4 May 2021 he explained that the classification was unfair because the reasons for Heilala to attack the person had not been considered (attachment C).

8.       The behaviour reported by the complainant involved Heilala being at large in a public place and biting the complainant on her buttock as she was running past. The attack was unprovoked and caused two puncture wounds which required medical treatment. Mr Moala explained at the time that the dog had escaped from his property after his wife had left the gate of the dogs’ kennel open.

9.       This type of behaviour poses a threat to the safety of persons or animals which will be reduced if Heilala is muzzled when in public and if she is de-sexed.

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a)      Hear and determine the objection to the menacing classification, and

b)      Either:

i)        Uphold the menacing classification, or

ii)       Rescind the menacing classification.

 

Horopaki

Context

10.     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.

11.     A dog may be classified as menacing under section 33A of the DCA if the Auckland Council considers the dog may pose a threat to the safety of persons or animals because of any reported behaviour of the dog.

12.     If a dog is classified as menacing, then section 33E(1) of the DCA determines that the owner of the dog:

a)   must not allow the dog to be at large or in a public place or in any private way without been muzzled, and

b)   must within 1 month after service of the notice provide a certificate by a veterinarian that the dog is or has been de-sexed. If the dog is not in a fit condition to be de-sexed within that time, the dog owner must provide a certificate by a veterinarian explaining the reasons for that and specifying the date by when the dog can be de-sexed.

13.     It is an offence under section 33EC of the DCA if an owner fails to comply with the provisions of section 33E(1) which carries a fine not exceeding $3,000. Moreover, an animal management officer may seize the dog concerned and retain custody of the dog until the owner has demonstrated a willingness to comply with these provisions.

14.     An objection suspends the provisions of section 33E(1) of the DCA.

15.     In considering the objection to a menacing classification by deed, the Regulatory Committee may uphold or rescind the classification having regard to:

a)   The evidence which formed the basis for the classification; and

b)   Any steps taken by the owner to prevent any threat to the safety of person or animals; and

c)   The matters relied on in support of the objection; and

d)   Any other relevant matters.

Evidence which formed the basis for the classification

16.     On 18 March 2021 at about 10.30 am the complainant was jogging along Shaw Road on the same side of the road as Mr Moala’s property. She noticed a German Shepherd dog lying by the driveway of the property. She did not take notice of the dog until it suddenly appeared to her side and bit her on her left buttock. She ran across the road with the dog following her. It appeared as if the dog was going to bite her again and she shouted at it. The dog barked and returned to Mr Moala’s property. She sustained two puncture wounds to her buttock which required medical attention. She reported the attack to the Auckland Council later that day. She was shown photos of two German Shepherd dogs and identified Heilala as the dog that had attacked her. Her statement is filed as attachment D.

17.     On 18 March 2021 the investigating animal management officer interviewed occupants at Mr Moala’s property about their German Shepherd dogs. They then realised that their dogs were missing from the property and called Mr Moala at his work to assist the officer in finding them. The dogs were eventually found and returned home. Mr Moala admitted that his wife had failed to close the kennel gate after feeding the dogs. The officer’s statement is filed as (attachment E).

 

Steps taken by Mr Moala to prevent any threat to persons or animals

18.     Mr Moala has not informed Animal Management whether Heilala, has since this incident, been desexed.

19.     Animal Management is unaware of any steps taken by Mr Moala to prevent any threat by Heilala to persons or animals.

Matters relied upon in support of the objection

20.     It is inferred from Mr Moala’s email of 4 May 2021 (attachment C) that Heilala is kept as a guard dog because of the remoteness of the area where he resides. This sustains the belief that Heilala may pose a threat to people.

21.     Any dog should nevertheless be confined within their property. Mr Moala was previously warned to keep Heilala confined and under control after she had rushed at a passer-by and her dog on 24 November 2020. The job notes for this complaint RFS 8100730207 are filed as (attachment F).

Tātaritanga me ngā tohutohu

Analysis and advice

22.     It is inferred from Mr Moala’s email of 4 May 2021 (attachment C) that Heilala is kept as a guard dog because of the remoteness of the area where he resides. This sustains the belief that Heilala may pose a threat to people.

23.     Any dog should nevertheless be confined within their property. Mr Moala was previously warned to keep Heilala confined and under control after she had rushed at a passer-by and her dog on 24 November 2020. The job notes for this complaint RFS 8100730207 are filed as (attachment F).

Tauākī whakaaweawe āhuarangi

Climate impact statement

24.     This is a report about an objection to the menacing classification of a dog. It has no climate impact.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

25.     This is a report about an objection to the menacing classification 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

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

Tauākī whakaaweawe Māori

Māori impact statement

27.     This report has no impact on Māori.

Ngā ritenga ā-pūtea

Financial implications

28.     Kevin Smith, Commercial Finance Manager for Regulatory Services has reviewed this report. The decision by the Regulatory Committee on the objection to the menacing classification has no financial implications.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

29.     There are no risks in upholding the classification.

Ngā koringa ā-muri

Next steps

30.     The Regulatory Committee must give Mr Moala written notice of its decision as soon as practical.

31.     Author - please add Chrisna Nortje as she is not in InfoCouncil

32.     Approvers – please add Eleanor Waitoa as first approver because she is not in InfoCouncil. She has approved this report and attachments.

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Attachment A

151

b

Attachment B

153

c

Attachment C

155

d

Attachment D

157

e

Attachment E

169

f

Attachment F

173

     

Ngā kaihaina

Signatories

Author

Chrisna Nortje, Principal Specialist, Animal Management, Licensing and Regulatory Compliance

Authorisers

Eleanor Waitoa, Manager Animal Management, Licensing and Regulatory Compliance

James Hassall - General Manager, Licensing and Regulatory Compliance

Craig Hobbs - Director Regulatory Services

 

 


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Objection to a menacing dog classification - Frykberg

File No.: CP2021/18940

 

  

 

Te take mō te pūrongo

Purpose of the report

1.       To hear and determine the objection by Mr Frykberg against the classification of his dog, Braco, as a menacing dog under section 33A of the Dog Control Act 1996 (DCA).

Whakarāpopototanga matua

Executive summary

2.       Mr Frykberg is the owner of a 14-month-old male entire Staffordshire Bull Terrier called Braco.

3.       On 20 September 2021 Braco bit a 4-year-old child on his leg. At the time Braco was being walked by Mr Frykberg off-leash. The child sustained bruising and abrasions to his leg.

4.       Section 33A of the DCA provides that the Auckland Council may classify a dog as menacing when it considers that that dog may pose a threat to any person, stock, poultry, domestic animal, or protected wildlife because of any reported behaviour of the dog.

5.       Where a dog is classified as menacing the owner of the dog must:

a)   Not allow the dog to be at large or in any public place, or in any private way, without it being muzzled; and

b)   Within 1 month after service of the notice provide a certificate by a veterinarian that the dog is or has been de-sexed. If the dog is not in a fit condition to be de-sexed within that time, the dog owner must provide a certificate by a veterinarian explaining the reasons for that and specifying the date by when the dog can be de-sexed.

6.       On 24 September 2021 Animal Management classified Braco as menacing by deed because it considered that the dog may pose a threat to the safety of persons or animals. The notice of classification was served on Mr Frykberg on 25 September 2021 (attachment A).

7.       On 30 March 2021 Mr Frykberg objected to the classification (attachment B). The basis of his objection is that:

·    Braco is not an aggressive dog,

·    Braco reacted to the child and his mother’s reaction when Braco was running towards them, and

·    The bite wound was minor.

8.       There is a conflict between the complainant’s statement and Mr Frykberg’s statement about the events immediately before the attack:

·    The complainant states that she and her child were standing to the side to let Braco pass when Braco went straight up to the child and bit him on his leg. She immediately kicked the dog to get him to release his grip on her child.

·    Mr Frykberg states that the complainant and her son became agitated when Braco was running towards them. Braco ran past them for about 5 metres but then turned back and nipped the child on his leg.

9.       Even on Mr. Frykberg’s version Braco may still pose a threat to persons. In public places there are many people who are afraid of dogs, and children often react in loud and unexpected ways when confronted with dogs. If Braco were put in a similar situation he may possibly react in a similar way and thus pose a threat to persons.

10.     Pursuant to clause 17 of the Auckland Council Dog Management Bylaw 2019 the menacing classification may be reviewed and revoked on application after 12 months if Mr. Frykberg:

·    Provides a dog behavioural assessment report on Braco,

·    Has not been issued with infringement notices relating to Braco within the preceding 12-month period, and

·    Has obtained a responsible dog ownership licence.

 

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a)      Hear and determine the objection to the menacing classification, and

b)      Either:

i)        Uphold the menacing classification, or

ii)       Rescind the menacing classification.

Horopaki

Context

11.     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.

12.     A dog may be classified as menacing under section 33A of the DCA if the Auckland Council considers the dog may pose a threat to the safety of persons or animals because of any reported behaviour of the dog.

13.     If a dog is classified as menacing, then section 33E(1) of the DCA determines that the owner of the dog:

a)   must not allow the dog to be at large or in a public place or in any private way without been muzzled, and

b)   must within 1 month after service of the notice provide a certificate by a veterinarian that the dog is or has been de-sexed. If the dog is not in a fit condition to be de-sexed within that time, the dog owner must provide a certificate by a veterinarian explaining the reasons for that and specifying the date by when the dog can be de-sexed.

14.     It is an offence under section 33EC of the DCA if an owner fails to comply with the provisions of section 33E(1) which carries a fine not exceeding $3,000. Moreover, an animal management officer may seize the dog concerned and retain custody of the dog until the owner has demonstrated a willingness to comply with these provisions.

15.     An objection suspends the provisions of section 33E(1) of the DCA.

16.     In considering the objection to a menacing classification by deed, the Regulatory Committee may uphold or rescind the classification having regard to:

a)   The evidence which formed the basis for the classification,

b)   Any steps taken by the owner to prevent any threat to the safety of person or animals,

c)   The matters relied on in support of the objection, and

d)   Any other relevant matters.

Evidence which formed the basis for the classification

17.     Summary of the complainant’s statement (attachment C)

On 20 September 2021 at about 5pm the complainant and her son went for a walk with their dog. Their dog was leashed, and her son was on a small push along bike. During their walk they passed a woman walking a German Shepherd. The complainant and her son gave a wide berth for her to pass.

The complainant saw Mr Frykberg and Braco walking towards them. Braco was not on a leash. The complainant went onto the grass verge with her dog and told her son to stay still where he was while the dog passed. Braco went straight to the complainant’s son and bit him on the outside of his left lower leg. The dog did not release its grip and the complainant kicked the dog off. The complainant’s child sustained a circular bruise with bloody abrasions on his leg.

18.     Summary of Mr Frykberg’s statement (attachment D)

On 20 September 2021 Mr Frykberg and Braco were walking back home from a park. He let Braco off the lead about 120 m away from his property. This is because Braco likes to run down the berm and roll on the grass. At this stage he saw the complainant and the child ahead. The complainant became agitated when she saw Braco coming and began moving and talking to her son. Braco ran past the woman, her dog and the child but turned back because of the noise the complainant and her son were making. The complainant appeared frightened of Braco and told him to get away. The child was crying. Braco nipped the child on his leg.

Steps taken by Mr Frykberg to prevent any threat to persons or animals

19.     Mr Frykberg has not informed Animal Management whether Braco has since this incident been desexed, or whether Braco has attended any behavioural modification courses.

Matters relied upon in support of the objection

20.     The bases of Mr Frykberg’s objection are that:

·    Braco is not an aggressive dog,

·    Braco reacted to the child and his mother’s reaction when Braco was running towards them, and

·    The bite wound was minor.

Tātaritanga me ngā tohutohu

Analysis and advice

21.     The classification of dogs as menacing is to protect public safety from possible harm. The threat referred to in section 33A need not be shown to be real to classify a dog as menacing. It suffices if there is a potential of harm by the dog to persons and animals.

22.     Even on Mr Frykberg’s version of the incident Braco may be a threat to persons. There are many people in public places who are afraid of dogs, and children often react in loud and unexpected ways when confronted with dogs. If Braco were put in a similar situation he may possibly react in a similar way and thus pose a threat to the safety of others.

23.     This threat will be eliminated if he is muzzled when in public. His aggressive reaction will also be tempered if he is de-sexed.

24.     Pursuant to clause 17 of the Auckland Council Dog Management Bylaw 2019 the menacing classification may be reviewed and revoked on application after 12 months if Mr. Frykberg:

·    Provides a dog behavioural assessment report on Braco,

·    Has not been issued with infringement notices relating to Braco within the pre-ceding 12-month period, and

·    Has obtained a responsible dog ownership licence.

 

 

Tauākī whakaaweawe āhuarangi

Climate impact statement

25.     This is a report about an objection to the menacing classification of a dog. It has no climate impact.

 

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

26.     This is a report about an objection to the menacing classification 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

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

 

Tauākī whakaaweawe Māori

Māori impact statement

28.     This report has no impact on Māori.

 

Ngā ritenga ā-pūtea

Financial implications

29.     Kevin Smith, Commercial Finance Manager for Regulatory Services has reviewed the report. The decision by the Regulatory Committee on the objection to the menacing classification has no financial implications.

 

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

30.     There are no risks in upholding the classification.

 

Ngā koringa ā-muri

Next steps

31.     The Regulatory Committee must give Mr Frykberg written notice of its decision as soon as practical.

 

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Attachment A

185

b

Attachment B

187

c

Attachment C

189

d

Attachment D

197

     

Ngā kaihaina

Signatories

Author

Chrisna Nortje, Principal Specialist, Animal Management, Licensing & Regulatory Compliance

Authorisers

Eleanor Waitoa, Manager Animal Management, Licensing & Regulatory Compliance

James Hassall - General Manager, Licensing and Regulatory Compliance

Craig Hobbs - Director Regulatory Services

 


Regulatory Committee

14 December 2021

 

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14 December 2021

 

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14 December 2021

 

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Regulatory Committee

14 December 2021

 

Objection to disqualification of dog owner - Whitcombe

File No.: CP2021/18973

 

  

 

Te take mō te pūrongo

Purpose of the report

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

 

Whakarāpopototanga matua

Executive summary

2.       Ms Whitcombe is the owner of three dogs:

·    Max, a 4-year-old Sharpei crossbreed male

·    Half, a 2-year-old Sharpei crossbreed male

·    Ed, a 10-year-old Sharpei crossbreed male. Ed was classified as a dangerous dog under section 31 of the DCA on 25 February 2017, before ownership of the dog was transferred to Ms Whitcombe.

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 three 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 20 June 2021 Animal Management disqualified Ms Whitcombe from owning dogs because 12 infringement notices for various offences under the DCA had been issued to her between the period 7 April 2020 to 13 February 2021. The period of disqualification is for 5 years calculated from 13 February 2021 being the date of the last qualifying offence to 13 February 2026 (Attachment A).

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,

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

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 1 July 2021 Ms Whitcombe objected to the disqualification on the basis that she wanted the opportunity to dispute the disqualification (Attachment B).

9.       Section 26 of the DCA provides a right to a disqualified owner to be heard in support of their objection to 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)      Either:

i)          Uphold the disqualification but bring the date of termination forward to 13 February 2024.

ii)         Uphold the disqualification for another period of less than five years.

iii)        Rescind the disqualification.

 

Horopaki

Context

11.     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.

12.     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.

13.     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.

14.     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.

15.     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

Barking complaints

16.     Since 25 September 2017 Animal Management has received numerous complaints about the nuisance caused by Ms Whitcombe’s dogs loud and persistent barking.


 

17.     Below is a summary of some of the more recent barking complaints:

Date

RFS number

Outcome

4/3/2019

8100373768

S 55 DCA warning issued

4/8/2019

8100396241

Nuisance abatement notice (NAN) issued for Max

29/4/2020

8100611890

S 55 warning issued

18/5/2020

8100621225

NAN issued for Max and Half

29/6/2020

8100645128

NAN issued for Max and Half

25/8/2020

8100678370

NAN issued for Max and Half

16/2/2021

8100784786

NAN issued for Max and Half

12/3/2021

8100802092

NAN issued for Max and Half

2/4/2021

8100815654

NAN issued for Max and Half

4/6/2021

8100852523

Property inspection and recommendations to abate nuisance barking

10/6/2021

8100855166

Linked with 8100852523

11/6/2021

8100855166

Linked with 8100852523

22/6/2021

8100861936

Linked with 8100852523

 

Probationary classification

18.     On 16 July 2020 Animal Management classified Ms Whitcombe as a probationary owner under section 21 of the DCA for a period of two years from 12 July 2020 to 27 July 2022. This is because she had committed three or more infringement offences within a continuous period of 24 months (attachment C).

19.     Below is a summary of the infringement offences:

No.

Infringement notice number

Offence date

Dog

Description of offence

1.

61000237344

7/4/2020

Half

s 42(1) DCA – failing to register dog

2.

61000239061

20/5/2020

Max

s 42(1) DCA – failing to register dog

3.

61000239231

28/5/2020

Max

s 20(5) DCA – failing to control dog on leash clause 7.1 Dog Management Bylaw 2019 (DM Bylaw)

Dog running in street

4.

61000245105

6/6/2020

Half

s 53(1) DCA – failing to control dog

Dog uncontrolled in street

5.

61000244952

8/6/2020

Ed

s 20(5) DCA – failing to control dog on leash clause 7.1 (DM Bylaw)

Dog roaming in street

6.

61000244936

8/6/2020

Ed

s 42(1) DCA – failing to register dog

 

Disqualification

20.     On 4 June 2021 the dog, Ed, was found on Waiheke Island on an unsecured property and in the possession of a third party. Pursuant to section 32(1) of the DCA the owner of a dog that is classified as dangerous:

·    may not without the written consent of the territorial authority in whose district the dog is to be kept, dispose of the dog to any other person, and

·    must keep the dog within a securely fenced portion of their property so that any person entering the property has dog-free access to at least one door of the dwelling on that property.

21.     Ed was consequently seized and retained under section 70 of the DCA until Ms Whitcombe shows a willingness to comply with her obligations. At this time Ms Whitcombe’s record as dog owner was reviewed and it was decided to revoke her probationary classification and to disqualify her from owning dogs. This is because Ms Whitcombe had committed three or more further offences within a continuous period of 24 months.

22.     A summary of these offences is below:

No.

Infringement notice number

Offence date

Dog

Offence

7.

61000239245

28/5/2021

Half

s 20(5) DCA – failing to control dog on leash clause 7.1 DM Bylaw

Dog running in street

8.

61000245614

7/6/2020

Max

s 53(1) DCA – failing to control dog

Dog uncontrolled in street

9.

61000244960

8/6/2020

Ed

s 62(4) DCA – allowing dangerous dogs to be unmuzzled

Dog at large and unmuzzled in street

10.

61000248958

15/6/2020

Max

s 55(7) DCA – failing to comply with NAN

11.

61000248966

15/6/2021

Half

s 55(7) DCA – failing to comply with NAN

12.

61000303622

13/2/2021

Half

s 53(1) DCA – failing to control dog

Dog chasing after pedestrian

 

23.     All the infringement notices issued to Ms Whitcombe explained her right to dispute the infringements. Ms Whitcombe failed to do so in each instance.

Subsequent breaches of the DCA

 

No.

RFS number

Date

Complaint type

Outcome

1.

8100915095

7/10/2021

Barking

Ms Whitcombe informed of complaint

No formal statement from complainant

 

 

2.

8100919851

15/11/2021

Unregistered dog

Email to Ms Whitcombe (Attachment D)

Infringement notices to be issued

3.

8100945523

26/11/2021

Roaming

Max observed roaming Infringement notice to be issued

 

Tātaritanga me ngā tohutohu

Analysis and advice

24.     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.

25.     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.

26.     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.

27.     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.

28.     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.

29.     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

30.     In this instance it was decided to disqualify Ms. Whitcombe 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 pedestrians and road users.

b)   The dogs cause a nuisance to the community by their persistent and loud barking.

c)   Ms Whitcombe was educated on her obligations to abate her dogs’ barking.

d)   Ms Whitcombe’s repeat disregard of his obligations under the DCA.

e)   Ms Whitcombe’s lack of competency in terms of responsible dog ownership.

f)    Her probationary period did not deter her from committing further infringement offences.

31.     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 Ms Whitcombe was disqualified:

·    In the absence of any explanation by Ms Whitcombe, her failure to confine her dogs on her property and to abate her dogs’ nuisance barking can only be attributed to her disregard of her obligations as a dog owner.

·    Ms Whitcombe failed to control and confine Ed, a classified dangerous dog.

b)   The competency of Ms Whitcombe in terms of responsible dog ownership:

·    Ms Whitcombe has not heeded to the education and advice given about abating nuisance barking.

·    She committed further infringement offences despite being placed on probation.

·    She continued breaching the DCA since her disqualification.

·    Any steps taken by Ms Whitcombe to prevent further offences - Ms Whitcombe may address the Regulatory Committee on this point.

·    The matters advanced in support of the objection - Ms Whitcombe had the opportunity to dispute the infringements which she failed to take. This hearing is not the correct forum to establish her liability for the infringement offences.

·    Any other relevant matters – Ms Whitcombe may wish to advance relevant matters touching on her dog ownership.

Advice on period of disqualification

32.     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.

33.     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.

34.     Applying these considerations to Ms Whitcombe’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 mid to lower end of the scale of seriousness as they involve the dogs being uncontrolled (one of which being a classified dangerous dog) and nuisances caused by her dogs’ barking.

b)   She has committed 12 infringement offences over a period of 11 months.

c)   She has continued to breach the DCA after she had been made a probationary owner and after she was disqualified.

 

 

35.     The termination date of the disqualification should therefore be brought forward to 13 February 2024, which is 3 years from the date of the last qualifying offence. This will effectively disqualify Ms Whitcombe for a period of 26 months from the date of determination by the Regulatory Committee.

Tauākī whakaaweawe āhuarangi

Climate impact statement

36.     This is a report about dog ownership which has no climate impact.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

37.     This is a report about dog ownership which does not require council group views.

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

Local impacts and local board views

38.     This is a report about dog ownership which has no local impact. Local Board views have not been sought.

Tauākī whakaaweawe Māori

Māori impact statement

39.     This is a report about dog ownership which has no impact on Māori.

Ngā ritenga ā-pūtea

Financial implications

40.     This report has been reviewed by Kevin Smith, Commercial Finance Manager supporting Regulatory Services. The decision by the Regulatory Committee on the disqualification of a dog owner has no financial implications.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

41.     Ms Whitcombe has the right of appeal to the District Court if she 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

42.     The Regulatory Committee must give Ms Whitcombe written notice of its decision and the reasons for it as soon as practical.

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Attachment A

209

b

Attachment B

211

c

Attachment C

213

d

Attachment D

215

     

Ngā kaihaina

Signatories

Author

Chrisna Nortje, Principal Specialist, Animal Management, Licensing & Regulatory Compliance

Authorisers

Eleanor Waitoa, Manager Animal Management, Licensing & Regulatory Compliance

James Hassall - General Manager, Licensing and Regulatory Compliance

Craig Hobbs - Director Regulatory Services

 

 


Regulatory Committee

14 December 2021

 

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Regulatory Committee

14 December 2021

 

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14 December 2021

 

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14 December 2021

 

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