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

 

Date:

Time:

Meeting Room:

Venue:

 

Tuesday, 5 July 2022

10.00am

Reception Lounge,
Auckland Town Hall
301-305 Queen Street
Auckland

 

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

 

 

IMSB Member Glenn Wilcox

 

 

Cr Paul Young

 

 

(Quorum 5 members)

 

 

 

Sophie White

Kaitohutohu Mana Whakahaere / Governance Advisor

 

29 June 2022

 

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

05 July 2022

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ITEM   TABLE OF CONTENTS                                                                                         PAGE

1          Apologies                                                                                                                        9

2          Declaration of Interest                                                                                                   9

3          Confirmation of Minutes                                                                                               9

4          Petitions                                                                                                                          9  

5          Public Input                                                                                                                    9

6          Local Board Input                                                                                                          9

7          Extraordinary Business                                                                                              10

8          Resource Consents Appeals: Status Report 5 July 2022                                       11

9          Summary of Confidential Decisions and related information released into Open 29

10        Summary of Regulatory Committee Information - updates, memos and briefings - 5 July 2022                                                                                                                       37

11        Objection to Nuisance Abatement Notice by Susan Nerney                                  49

12        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, 14 June 2022, including the confidential section, as a true and correct record.

 

 

4          Petitions

 

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

 

 

5          Public Input

 

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

 

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

 

 

6          Local Board Input

 

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

 

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

 

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

 

 


 

 

 

7          Extraordinary Business

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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


Regulatory Committee

05 July 2022

 

Resource Consents Appeals: Status Report 5 July 2022

File No.: CP2022/09074

 

  

 

Te take mō te pūrongo

Purpose of the report

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

Whakarāpopototanga matua

Executive summary

2.       This memorandum provides a summary of current resource consent appeals to which the Auckland Council is a party. It updates the report to the Regulatory Committee on 22 April 2022.

3.       If committee members have detailed questions concerning specific appeals, it would be helpful if they could raise them prior to the meeting with Robert Andrews (phone: 09 353-9254) or email: robert.andrews@aucklandcouncil.govt.nz) in the first instance.

 

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a)      receive the Resource Consents Appeals: Status Report 5 July 2022

 

Horopaki

Context

4.       As at 20 June 2022, there are 30 resource consent appeals to which Auckland Council is a party. These are grouped by Local Board Area geographically from north to south, as set out in Attachment A.  Changes since the last report and new appeals received are shown in bold italic text.

5.       The principal specialist planners - resource consents, continue to resolve these appeals expeditiously. In the period since preparing the previous status report on 22 April 2022, there has been one new appeal lodged and two resolved.

6.       The appeal by McCallum Bros Ltd is to a decision by council’s independent commissioners to refuse applications to extract up to 2,000,000m³ of sand from between a 25m to 40m depth over an approximate area of 44 km² from the coastal marine area (CMA) offshore at Pakiri. The applicant seeks renewal of an existing 2003, 20-year consent on similar terms, essentially in the same area using a trailer suction dredge. The proposed sand extraction area is zoned General Coastal Marine Zone in the Auckland Coastal Plan as contained in the Auckland Unitary Plan – Operative in Part. The consents sought are Discretionary, being coastal consents for the sand extraction and disturbance of the CMA for sampling and monitoring the extraction effects, and a discharge consent for the discharge of excess seawater and fine sediments. 

7.       In refusing consent the commissioners were not satisfied with the level of information provided on coastal processes and found that the adverse effects on cultural values and  Mana Whenua interests will be more than minor. A large number of submitters, primarily from iwi groups have since become Section 274 parties to the appeal.

Tātaritanga me ngā tohutohu

Analysis and advice

8.       To receive the report as provided.

Tauākī whakaaweawe āhuarangi

Climate impact statement

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

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

10.     Not applicable.

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

Local impacts and local board views

11.     Not applicable.

Tauākī whakaaweawe Māori

Māori impact statement

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

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

Ngā ritenga ā-pūtea

Financial implications

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

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

15.     Not applicable.

Ngā koringa ā-muri

Next steps

16.     Not applicable.

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Resource Consent Appeals as at 21 June 2022

15

      

Ngā kaihaina

Signatories

Author

Robert Andrews - Principal Specialist Planning

Authorisers

Ian Smallburn - General Manager Resource Consents

Craig Hobbs - Director Regulatory Services

 

 


Regulatory Committee

05 July 2022

 

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Regulatory Committee

05 July 2022

 

Summary of Confidential Decisions and related information released into Open

File No.: CP2022/09329

 

  

 

Te take mō te pūrongo

Purpose of the report

1.       To note confidential decisions and related information released into the public domain.

Whakarāpopototanga matua

Executive summary

2.       This is a regular information-only report which aims to provide greater visibility of confidential decisions made that can now be released into the public domain.

3.       The following decisions/documents are now publicly available:

Date of Decision

Subject

14/06/22

Regulatory Committee

Appointment of Panel member to the National Policy Statement - Urban Development plan change Independent Hearing Panel

 

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

 

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a)      note the confidential decision and related information that is now publicly available:

i)        Appointment of Panel member to the National Policy Statement - Urban Development plan change Independent Hearing Panel

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Appointment of Panel member to the National Report - Policy Statement - Urban Development plan change Independent Hearing Panel

31

     

Ngā kaihaina

Signatories

Author

Sophie White - Kaitohutohu Mana Whakahaere / Governance Advisor

Authoriser

Craig Hobbs - Director Regulatory Services

 

 


Regulatory Committee

05 July 2022

 

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Regulatory Committee

05 July 2022

 

Summary of Regulatory Committee Information - updates, memos and briefings - 5 July 2022

File No.: CP2022/09115

 

  

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 5 July 2022.

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Regulatory Committee Forward Work Programme - 5 July 2022

39

     

Ngā kaihaina

Signatories

Author

Sophie White - Kaitohutohu Mana Whakahaere / Governance Advisor

Authoriser

Craig Hobbs - Director Regulatory Services

 

 


Regulatory Committee

05 July 2022

 

 

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

Alcohol Licensing

Licensing & Regulatory Compliance

Report on the revenue received and the costs incurred for the alcohol licensing process – required by regulation 19 of the Sale and Supply of Alcohol (Fees) Regulations 2013.

Note that the majority of alcohol licensing costs were recovered from the existing default licensing fees regime for the twelve months to 30 June

Confirm continuance of the default licensing fees regime

Review the default licensing fees regime after a suitable period of time has elapsed following the implementation of the Local Alcohol Policy

 

 

 

 

 

 

 

 

 

 

 

Animal Management

Licensing & Regulatory Compliance

Report on Animal Management activities for the year ending August/Sept 2021as required by s10a of the Dog Control Act 1996

Note:  that the Animal Management Annual Report is required under Section 10A of the Dog Control Act 1996 and staff will provide the 2020/2021 report to the Secretary of Local Government

 

 

 

 

 

 

 

 

 

 

 

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.

 

 

 

 

 

 

 

 

 

 

 

Resource Consents Appeal Update

Resource Consents

To provide oversight of the appeals received to resource consent decisions.

Information purposes

Monthly report

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

 

 

 

 

 

 

 

 

 

 

 

 

 

Bylaw project initiation report

To formally initiate the commencement of bylaw-related projects in 2022

Decision on whether to initiate the commencement of bylaw-related projects in 2022, including their high-level scope and local board significance as part of a co-governance approach adopted in 2019.

 

ü

 

 

 

 

 

 

 

 

 

Traffic Bylaw Review

Community and Social Policy

This Bylaw regulates the use of vehicles on council-controlled land that is not part of the Auckland transport system, like parks and beaches.

NB: This Bylaw was made solely under the Land Transport Act 1998 and does not expire.

Decision on whether a bylaw is still needed to confirm, amend, replace or revoke the bylaw. If required, recommend a proposal and appoint a Bylaw Panel.

Updated to commence October 2022. Findings report scheduled for mid-2023.

 

 

 

 

 

 

 

 

 

 

 

Air Quality Bylaw for Indoor Domestic Fires

Community and Social Policy

This Bylaw sets standards for indoor domestic fires and what may be burnt in them.

This Bylaw must be reviewed by 25 May 2022. If this date is missed, a new bylaw must (if necessary) be made to avoid a regulatory gap.

Decision on whether a bylaw is still needed and whether to confirm, amend, replace or revoke the bylaw. If required, recommend a proposal and appoint a Bylaw Panel.

 

 

 

 

 

 

 

 

 

 

 

Cemeteries and Crematoria Bylaw Control

Community and Social Policy

To review the rules to manage activities at council cemeteries and crematoria relating to burial, cremation, disinterment, built structures, Wāhi Tapu Māori Areas, ground maintenance and record-keeping under the Cemeteries and Crematoria Bylaw 2014

Decision on whether a change to the bylaw control is required.

First report scheduled for mid-2023.

 

 

 

 

 

 

 

 

 

 

 

Health and Hygiene Bylaw Control

Community and Social Policy

To review minimum standards to protect public health associated with commercial services that pierce, risk breaking or risk burning the skin or tissue, therapeutic massage, colon hydrotherapy, swimming pools, water play parks and splash pads under the Health and Hygiene Bylaw 2013

Decision on whether a change to the bylaw control is required.

First report scheduled for mid-2023.

 

 

 

 

 

 

 

 

 

 

 

Signage at off-licence premises

Community and Social Policy

To investigate regulatory options to restrict the size, number, content and marketing of alcohol on signage and the use of neutral colours on buildings associated with off-licence premises and visible from a council controlled public place in accordance with Regulatory Committee resolution REG/2020/66.

Decision on preferred regulatory option in relation to signs at off-licence premises and determination of next steps.

 

 

 

 

 

 

 

 

 

 

 

Set net fishing ban at Matakatia Bay (Hibiscus and Bays)

Community and Social Policy

To assess a request contained in Regulatory Committee resolution REG/2021/83 for a set net fishing ban under the Auckland Council Public Safety and Nuisance Bylaw 2013.

Decision on whether to make a set net fishing ban at Matakatia Bay.

 

 

 

 

 

 

 

 

 

 

 

Bylaw project initiation report

To formally initiate the commencement of bylaw-related projects in 2022

Decision on whether to initiate the commencement of bylaw-related projects in 2022, including their high-level scope and local board significance as part of a co-governance approach adopted in 2019.

 

 

 

 

 

 

 

 

 

 

 

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.

NB: This Bylaw was made solely under the Land Transport Act 1998 and does not expire.

Decision on whether a bylaw is still needed to confirm, amend, replace or revoke the bylaw. If required, recommend a proposal and appoint a Bylaw Panel.

Updated to commence October 2022. Findings report scheduled for mid-2023.

 

 

 

 

 

 

 

 

 

 

 

 

 


 

 

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
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findings review 13 October 2020

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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
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Options Report 23 June 2020
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Recommend statement of proposal 13 October 2020

link to decision

Adopt statement of proposal – Governing Body – 29 October 2020
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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
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Review findings – Governing Body – 29 October 2020
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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
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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
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Approval to commence recruitment RMA Commissioners 23 June 2020
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Adoption of the Regulatory Committee policy 28 July 2020
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Recommendation for the appointment of independent hearings commissioners
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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
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Recommendation for Statement of Proposal 16 February 2021

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Adopt Statement of Proposal – Governing Body – 25 February 2021

Link to decision

Community and Social Policy

Animal management Bylaw Review

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

 

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 17 March 2020
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Options Report 17 November 2020

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Decision Report 11 May 2021
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Community and Social Policy

Construction Bylaw 2015

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
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Community and Social Policy

Property Maintenance Nuisance Bylaw Review

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
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Decision report 14 September 2021
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Community and Social Policy

Signage Bylaw Review

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

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Detailed Options report 20 April 2020

Link to decision

Decision report 17 August 2021

Link to decision

 

Healthy Waters / Community and Social Policy

Stormwater Bylaw

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

 

Community and Social Policy

Trading and Events Bylaw Review

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

Community and Social Policy

Wharves Bylaw 2015

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

 

 

 


Regulatory Committee

05 July 2022

 

Objection to Nuisance Abatement Notice by Susan Nerney

File No.: CP2022/09085

 

  

 

Te take mō te pūrongo

Purpose of the report

1.       To hear and determine the objection by Susan NERNEY against a Nuisance Abatement Notice (NAN) issued on 25 March 2022 pursuant to section 55(1)(b) of the Dog Control Act 1996 (DCA). 

Whakarāpopototanga matua

Executive summary

2.       Ms Nerney is the primary owner of an 8-year-old female, black and tan, Doberman dog called Freya. Since September 2021, Animal Management has received several complaints about Freya’s barking.

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

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

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

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

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

 

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a)      hear and determine the objection to the Noise Abatement Notice, and

b)      uphold the Noise Abatement Notice.

 

Horopaki

Context

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

 

 

 

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

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

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

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

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

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

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

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

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

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

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

a.   the evidence which led to the issuing of the notice

b.   any evidence that that the objector and their witnesses may present during the hearing, and

c.   any other relevant matters.

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

a.   confirm the NAN

b.   modify the requirements stipulated in the NAN, or

c.   cancel the NAN.

 

Background

Earlier complaints

17.     Ms Nerney resides in a Residential property in Manly, Auckland.  She is the registered owner of an 8-year-old, female, black and tan Doberman dog called Freya.

18.     During the period September 2021 to May 2022, Animal Management received complaints from an occupant of a neighbouring property, about Freya’s barking.  Ms Nerney was supplied with educational material on the possible reasons for and abatement of dogs barking. 

19.     Since 9 September 2021 Animal Management received numerous complaints from an occupant of a neighbouring property about Freya’s loud and persistent barking:

a.   RFS 8100910001 received 29 September 2021

The complainant said that the dog started barking at 6 am and continued throughout the day until it was taken in at night. He says that dog owner is very aggressive and swears at them.  Police attended on Sunday due to the owner’s alleged aggression towards the complainant and his wife.

On 30 September 2021, a Barking Complaints Advisor (BCA) contacted the complainant to get more details. They confirmed that the dog causing the nuisance belongs to the dwelling at the back of the section, referring to the dwellinghouse of Ms Nerney.  He also confirmed that there were two dogs on the property but the one causing the nuisance was the black and tan dog. The complainant stated that it is reactive barking as the dog barks at any movement or sound. The barking continues throughout the day. They suggested to Ms Nerney to put up a fence and she agreed.  Although, Ms Nerney later decided not to share the cost as she could not afford it.

On the same day, Ms Nerney was notified by email of the complaint and given information on the causes of dogs barking and methods to employ to reduce the barking, refer Attachment A. Note that the message in the email refers to “Sally” which is not the correct name of the dog owner. However, the message was sent to the correct email address and subsequent telephone conversations with Ms Susan Nerney confirmed that she received the email.

Ms Nerney called and spoke to a Barking Complaint Advisor (BCA). She said that the complainant has been throwing a ball close to the fence which excites her dog. She said that it is just a bullying tactic from her neighbour and that no one else has a problem with it.  Ms Nerney says that she keeps her dog away from the fence and takes the dog with her when she is out as she worries about what they will do to her. The BCA explained the process in full and discussed possible enforcement actions if the dog continues to be a nuisance.

b.   RFS 8100924556 received 23 October 2021

The complainant said that the dog started barking at 6 am and continues to bark throughout the day until the dog is taken in at night. Complainant said that the owner was encouraging the barking behaviour. 

On 26 October 2021, a Barking Complaints Investigator (BCI) spoke with the complainant who has said that he was planting a hedge between his property and
Ms Nerney’s property when the dog called Freya came out and was barking aggressively at the fence at him. Ms Nerney came out and told the dog that she was a good girl but never reprimanded the dog at all. The dog will also be let out on a weekend at about 6 am and will run around barking and also run down to the gate and bark at anything that goes past. At no time does the owner call the dog back.

On the same day, a notification email was sent to Ms Nerney with the information brochures explaining why dogs bark excessively and ways to reduce the nuisance,  refer Attachment B.

 

 

 

On 28 October 2021, Ms Nerney spoke with a BCI and said that the dogs are inside during the night but have access through a dog door, if needed. If she is away, then someone normally comes over to sit with the dogs or the dogs are taken to a friend to be looked after.

On 4 November 2021, a BCI has contacted the complainant to get an update on the barking. The complainant advised that the barking continues. The wife of the complainant sent an email with details of the barking, refer Attachment C.

On the same day, a Formal Warning letter was sent to Ms Nerney, refer Attachment D.

c.   RFS 8100979475 received 17 January 2022

The complainant said that the dog barks all the time whenever anyone passes by on the street or if they see them. Dog description: one dog is black and tan, and the other dog is black white and tan. These dogs constantly bark and set off the other neighbouring dogs barking as well. They also bark every time the complainant goes out and comes towards the bordering fence.

On 18 January 2022, several voice recordings of barking were provided by the complainant. After listening to them, the BCI decided that a property inspection was necessary to move further in the process.

d.   RFS 8100987291 dated 27 January 2022 – A Proactive Request for property Inspection

On 1 February 2022, a BCI spoke with Ms Nerney to organise an inspection of her property. 

On 3 February 2022, we received a response email dated 2 February 2022 from Ms Nerney as per Attachment E.  Emails were also received from two friends in support of Ms Nerney dated 4 February 2022 and 15 February 2022, refer Attachment F. One of the friends supporting Ms Nerney resides about 2 streets away which is about 100 metres and the other friend lives about 600 metres away. The complainant lives next door to Ms Nerney.

On 3 February 2022, a property inspection was completed. The purpose of the inspection was to determine what steps the owners could take to abate the dog’s barking. The Bark Investigator noted that boredom, separation anxiety and visual stimulation were the causes of Freya’s barking. 

On 14 February 2022, a Recommendation Letter was sent to Ms Nerney with the following recommendations as per Attachment G:

·    To install a bark box on the property.

·    Walk the dog off the property for at least 30 minutes twice each day.

·    When not on the property, to have either a dog sitter or have the dogs inside the house with a TV or radio on.

·    And to install a shade cloth over the fence between the two properties.       

Complaint resulting in NAN

20.     On 11 March 2022 Animal Management received a further complaint about Freya’s barking.  RFS 8101012780 refers. A BCI interviewed the complainant and recorded his statement in writing. The statement discloses that Freya was still barking loudly and persistently, and that it was causing a nuisance to the complainant and his wife, refer Attachment H.

21.     On 26 March 2022, a BCI issued a Nuisance Abatement Notice as per Attachment I and a copy was hand-delivered to Ms Nerney which required her within 7 days of receipt of the notice to take one of the following steps to abate the noise nuisance caused by Freya’s barking:

a.   Use a correctly fitted and in working order Noise and Vibration anti-bark collar when the dog is outside.

b.   Dog is to be kept in the house when owner is not on the property.

c.   When the dog starts barking, immediately call the dog away and put it in the house.

d.   The BCI’s formal statement about her investigation of the complaints is under Attachment J.

22.     On 30 March 2022, Ms Nerney objected to the NAN on the basis that the barking was not causing a nuisance and referred to the emails sent by her other neighbours in support of her position, refer Attachment K.

Subsequent complaints

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

a.   RFS 8101044588 received 5 May 2022

The complainant’s formal statement is under Attachment L.  The complainant states that despite the issuance of the Noise Abatement Notice, the dogs were barking loudly and continuously all morning.

Tātaritanga me ngā tohutohu

Analysis and advice

24.     Dobermans are highly protective in nature and will seek to alert their household of any suspicious or unusual activity.  They may also bark a lot if they are trying to communicate something to their owners, like boredom or needing some exercise.  Boredom is one of the causes that was identified by the Bark Advisor.

25.     Ms Nerney concedes that Freya barks but puts it down to alert barking.  Alert barking can become a nuisance if it is excessive.  In such instances a responsible dog owner would take steps to minimise any audio or visual stimulation that could lead to excessive barking.

26.     The complainant states that the barking deprives them of the full use and enjoyment of their property. Freya barks at every sound and movement especially when the complainant and his family are in their yard.

27.     The video clips that accompanied the complaint in the month of January 2022 are typical of Freya’s barking. They were taken from the back and front yards of the complainant’s property.

28.     The probabilities are that Freya is barking loudly and persistently which causes a nuisance to others.

29.     The Bark Investigator has assessed that the use of a Noise and Vibration Anti-Bark Collar bark box would best abate the nuisance.

Tauākī whakaaweawe āhuarangi

Climate impact statement

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

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

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

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

Local impacts and local board views

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

Tauākī whakaaweawe Māori

Māori impact statement

33.     This report has no impact on Māori.

Ngā ritenga ā-pūtea

Financial implications

34.     The decision by the Regulatory Committee on the nuisance abatement notice has no financial implications.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

35.     There are no risks in upholding the NAN.

Ngā koringa ā-muri

Next steps

36.     The Regulatory Committee must give Ms Nerney written notice of its decision as soon as practical.

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Notification of barking complaint

57

b

Advice to the dog owner

67

c

Complainant provides details of barking

69

d

Formal warning letter

73

e

Email from dog owner

77

f

Emails in support of the dog owner

79

g

Recommendations letter

83

h

Statement by complainant

85

i

Nuisance Abatement Notice

87

j

Statement by Barking Complaints Investigator

89

k

Objection to Nuisance Abatement Notice

91

l

Formal statement by complainant

93

     

Ngā kaihaina

Signatories

Author

Angie Castro - Team Leader, Bark and Field, Animal Management

Authorisers

Eleanor Waitoa, Manager Animal Management

James Hassall - General Manager, Licensing and Regulatory Compliance

Craig Hobbs - Director Regulatory Services

 

 


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