I hereby give notice that an ordinary
meeting of the Regulatory Committee will be held on:
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Date:
Time:
Meeting Room:
Venue:
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Tuesday, 9
August 2022
10.00am
Reception
Lounge,
Auckland Town Hall
301-305 Queen Street
Auckland
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Kōmiti Whakahaere ā-Ture /
Regulatory Committee
OPEN AGENDA
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MEMBERSHIP
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Chairperson
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Cr Linda Cooper, JP
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Deputy Chairperson
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Cr Josephine Bartley
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Members
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Cr Dr Cathy Casey
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Deputy Mayor Cr Bill Cashmore
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Cr Fa’anana Efeso Collins
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Mayor Hon Phil Goff, CNZM, JP
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Cr Shane Henderson
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Cr Daniel Newman, JP
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Cr Sharon Stewart, QSM
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IMSB Chair David Taipari
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IMSB Member Glenn Wilcox
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Cr Paul Young
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(Quorum 5 members)
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Sophie White
Kaitohutohu Mana Whakahaere /
Governance Advisor
3 August 2022
Contact Telephone: 021836328
Email: sophie.r.white@aucklandcouncil.govt.nz
Website: www.aucklandcouncil.govt.nz
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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.
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Regulatory
Committee
09 August 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 9
8 Investigation
of a set net fishing ban at Matakatia Bay, 2022 11
9 Review
findings of the Bylaw for Indoor Domestic Fires 2017 109
10 Summary
of Regulatory Committee Information - updates, memos and briefings - 9 August
2022 183
11 Determination
of an Objection to a Menacing Dog Classification by Richard Grounds 215
12 Determination
of an objection to a menacing dog classification - Cameron Waiariki 245
13 Objection
against disqualification of dog owner - Alexandra Johnston 277
14 Consideration
of Extraordinary Items
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
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That the Regulatory Committee:
a)
confirm the ordinary minutes of its meeting,
held on Tuesday, 5 July 2022, including the
confidential section, as a true and correct record.
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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.”
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Regulatory
Committee
09 August 2022
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Investigation
of a set net fishing ban at Matakatia Bay, 2022
File No.: CP2022/11166
Te take mō te
pūrongo
Purpose of the report
1. To
seek a decision to maintain the status quo – no seasonal set net fishing
ban at Matakatia Bay, Whangaparāoa.
Whakarāpopototanga matua
Executive summary
2. In
March 2022, the Regulatory Committee resolved that staff investigate a set net
fishing ban at Matakatia Bay (REG/2022/9). This responded to a resolution from
the Hibiscus and Bays Local Board (HB/2021/104).
3. To
provide advice on the request for a set net fishing ban at Matakatia Bay staff
have assessed evidence in the request (contained in the local board resolution)
and information obtained from council compliance staff, the Ministry for
Primary Industries, and some key stakeholders.
4. Staff
advise that many of the issues in the request (for example, litter, overnight
camping, noise) cannot be directly linked to set net fishing, are permitted, or
are already regulated and do not require additional control.
5. Staff
assessment of information did not find evidence of high levels of public safety
risk or public nuisance. The scale and significance of Matakatia Bay set net
safety and nuisance risk is assessed by staff as low.
6. Compliance
staff in council and at Ministry for Primary Industries did not have additional
evidence supporting a set net fishing ban.
7. Staff
recommend maintaining Option 1: Status quo – No set net fishing ban at
Matakatia Bay because it is the most appropriate, proportionate, and
reasonable option in consideration of the evidence.
8. The
Ministry for Primary Industries and council compliance staff will continue to
monitor the area and ensure set net fishing complies with existing fishing,
public and safety rules.
9. Residents
who have raised issues may not support the assessment. Council can communicate
the reasons for the decision through the minutes of this meeting.
10. If the
status quo is maintained, no further action is required.
Ngā tūtohunga
Recommendation/s
That the Regulatory Committee:
a) whakaae
/ agree to maintain the status quo – no seasonal set net fishing ban at
Matakatia Bay, Whangaparāoa as the evidence does not meet the criteria
council has made in the Public Safety and Nuisance Bylaw 2013 and is not
appropriate, proportionate, and reasonable considering the evidence.
Horopaki
Context
11. In March
2022, the Regulatory Committee resolved to initiate an investigation of a set
net fishing ban at Matakatia Bay (REG/2022/9). This responded to a resolution
from the Hibiscus and Bays Local Board (HB/2021/104). Figure 1 summarises
council decisions to date.
Figure 1 Decisions leading to an investigation of a
set net fishing ban at Matakatia Bay
Set net fishing is a regulated activity - monitored by
Ministry for Primary Industries
12. Set net
fishing in Matakatia Bay is a lawful, regulated activity. The Ministry for
Primary Industries provides a code of practice[1]
with set net fishing rules. The rules directly or indirectly protect safety.
Some are laws, with penalties of infringement or prosecution.
13. Matakatia
Bay is not part of a customary rohe moana and has no specific customary fishing
rules.[2]
A Senior Customary Fisheries Advisor says conversations with local hapu/iwi
about creating a rohe moana are likely to take place soon. This would enable
customary fishing rules to be made.
Council can also
make fishing controls for high levels of public safety and nuisance
14. The Public Safety and
Nuisance Bylaw 2013 enables council to control set net
fishing where there is a high level of public safety risk or public nuisance.
The Local Government Act 2002 decision-making requirements also apply.
15. Council’s
jurisdiction to set and enforce bylaw rules extends to its regional territorial
boundary.
Figure 2 Process for making fishing controls
Four set net fishing bans were made before new Bylaw
criteria for fishing controls adopted
16. There are
four seasonal set net fishing bans
in effect at :
· Arkles
Bay and Omaha Beach from Labour Day weekend to the end of Easter annually
· Te
Haruhi and Army Bay beaches in Shakespear Regional Park from 20 December to 31
March annually.
17. Council
made these bans prior to the 2019 amendments to the Public Safety and Nuisance
Bylaw 2013. The amendments added criteria for evidence of high levels of public
safety risk or public nuisance and high levels of non-compliance with fishing
practice guidelines.[3]
Council has a range of existing regulations to address
public safety and nuisance issues
18. Council
relies on existing regulations to manage public safety risks and public
nuisance from a range of lawful activities. For example:
· litter:
Litter Act 1979 (enforced by council through infringement fines)
· camping
(in vehicles), poor behaviour, driving on beaches, noise, restrictions on
activities: Public Safety and Nuisance Bylaw 2013, Freedom Camping Bylaw 2015
· noise:
Resource Management Act 1991
· offences
against public order: Summary Offences Act 1981.
Tātaritanga me ngā
tohutohu
Analysis and advice
19. The
community request for a set net fishing ban at Matakatia Bay The request (refer
Attachment A) includes:
· a
summary cover report
· copies
of email complaints between 2015 and 2021
· a
log of number plates
· photos.
20. Matakatia
Bay is a tidal beach, public reserve and residential area on the
Whangaparāoa Peninsula. There is a narrow grassy public space running the
600-metre length of the shoreline and road - Matakatia Parade. There are houses
lining the other side of the road, adjacent to the grassy area. There is a boat
ramp, picnic tables and seating. A map of the bay, and photos are in Attachment
B.
21. Matakatia
Bay is a public place and is available to all Aucklanders for a wide range of
recreational and social activities. It is shared public space and there is no
hierarchy of preferential activities.
Problem definition
Request details concerns from activities in public space
at Matakatia Bay
22. The
request details concern from some residents about activities occurring in
public space at Matakatia Bay. Staff have undertaken an assessment of
these in Attachment C which is summarised in Table 1 below. Primary issues can
be directly linked to set net fishing. Secondary issues arise from a range of
public activities.
Table
1 Issues raised in the community request
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Issue
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Direct link
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Regulated
|
|
Secondary
issues
|
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1. Noise
|
û
|
ü
|
|
2. Frequent
visits
|
û
|
-
|
|
3. Litter
|
û
|
ü
|
|
4. Driving
on the beach
|
û
|
ü
|
|
5. Camping
|
û
|
ü
|
|
6. Bigger
groups on reserve
|
û
|
-
|
|
7. Other
disorderly incidents
|
û
|
ü
|
|
Primary
issues
|
|
8. Placement
of nets
|
ü
|
û
|
|
9. Number
of nets
|
ü
|
û
|
|
10. Rocks
used as anchors
|
ü
|
û
|
|
11. Unmarked
nets
|
ü
|
ü
|
Secondary issues are
either permitted or regulated, and do not require additional controls
23. Some of
the information in the community request states that people are visiting and
using Matakatia Bay regularly for social gatherings, parking their vehicles and
undertaking recreational set net fishing.
24. The
community request also describes secondary nuisance issues, such as camping
over-night, litter, driving on the beach and noise. Secondary issues tend
to be behavioural and commonly result from a wide range of recreational
activities.
25. Staff
advise the information provided in the community request and through compliance
staff:
· states
that the types of activities expected and permitted to be undertaken on public
space are occurring
· identifies
secondary issues such as litter, camping, driving on the beach and noise that
have existing controls and do not require additional control, and are difficult
to directly link to set net fishing
· compliance
staff report they have not encountered problems with set net fishing in
Matakatia Bay
· Matakatia
Bay is not known to council compliance staff for a camping or litter problem
26. The
information in the community request regarding secondary issues does not
provide a high level of evidence of public safety risk or nuisance.
Primary
issues do not have strong evidence or high scale and significance
27. Staff
have assessed the primary issues, which can be directly linked to set net
fishing. A summary is provided in Table 2 below.
Table 2
Assessment of primary issues of set net fishing safety and nuisance issues
|
û Low evidence, scale / significance
|
- Moderate evidence, scale / significance
|
ü Strong evidence, high scale / significance
|
|
Issue reported
|
Strength of evidence
|
Scale / significance
|
|
1. Placement of nets at right angles to the
foreshore. Perceived reduction in amenity for other activities and perceived
safety risk that boats or swimmers will encounter or get caught in nets.
|
û
|
û
|
|
2. Number of nets set at a time, two to
five. Impact as above.
|
û
|
û
|
|
3. Rocks used as anchors two incidents of
two and three rocks, approximately 30 centimetres diameter, abandoned on the
beach. Perceived as unsightly and risk of stubbing toes or damaging boats.
|
-
|
-
|
28. Staff did
not find strong evidence of primary issues with a high scale or significance in
the community request. While there is some objective evidence of rocks left in
the intertidal area, there are no incidents of near misses or injury from
tripping on rocks.
29. Safety
issues that may arise if people encountered or became entangled in nets, were
not supported by evidence of a high level of safety risk. There were no
incidents of contact with nets, or injury recorded in the community information
request.
Ministry monitoring
does not find high non-compliance with set net fishing rules
30. The
Ministry for Primary Industries require nets to be marked under the Set Net
Fishing Code of Practice.
31. Ministry
for Primary Industry staff have said that they have not found a high level of
non-compliance with set net fishing rules. A heat map of enforcement
interaction shows regular monitoring in Whangaparāoa, with a low number of
interactions resulting at Matakatia Bay (refer Attachment D). These include:
· four educational
interactions
· three formal
warnings for unmarked nets
· no infringement notices
issued.
Complaints to
council do not have evidence of a high set net safety risk or nuisance
32. Staff
were provided with a list of 52 complaints at Matakatia Bay since 2017. Because
complaints were included in the community request, staff focused on complaints
made after the request was submitted to Hibiscus and Bays Local Board in
September 2021.
33. Thirty-six,
or 69 per cent of complaints were made after the request, between September
2021 and March 2022. Of these, 36 complaints, 22 mentioned set net fishing.
Most complaints are made by one to three residents.
34. There
were two recent complaints that appear to be about the same incident of a
concern that a swimmer may have encountered a net.
35. Limitations
prevent further quantitative analysis of these complaints. Some entries repeat
incidents already reported or describe experiences the complainant perceives
other people may have. Some report set net fishing but do not describe a public
safety or nuisance impact. Some also report nuisance that is difficult to
directly link to set net fishing, such as camping and litter.
36. In
general, the complaints describe the following impacts:
· reduced space for
other water activities such as swimming and boating
· perceived risk of
drowning
· perceived risk of or
contact with nets.
37. There
were no reported incidences of boats or other vessels encountering nets or
reported incidences of injury or drowning due to set nets.
38. There
have been no notices issued in Matakatia Bay under the Public Safety and
Nuisance Bylaw 2013. Compliance staff did encounter a person sleeping in their
car, who was experiencing homelessness.
39. The
Deputy Harbourmaster reports no complaints or issues from Matakatia Bay
regarding nets. In general, if staff find nets which are in the way and are not
named, they remove them. They report that they have not had to do this at
Matakatia Bay.
40. The
complaints information considered by staff and compliance experience does not
provide a high level of evidence of set net public safety risk or nuisance.
Scale and
significance of Matakatia Bay set net safety and nuisance risk assessed as low
41. From
assessment of information in the request and from compliance information, staff
advise that they did not find a high level of public safety risk and nuisance
or a high level of non-compliance with set net fishing rules at Matakatia
Bay.
42. Most
concerns raised relate to secondary issues from recreational activity. These
are difficult to directly link to set net fishing and there are existing
controls in place to address these issues when they arise.
43. Primary
impacts associated with set net fishing were not supported by evidence and / or
did not have an impact with a high scale or significance.
44. Staff
advise that based on the evidence available, the scale and significance of the
public safety and nuisance risk of set net fishing at Matakatia Bay is assessed
as low.
Legislative
criteria assessment
Maintaining status
quo meets legislative criteria, ban not justified by evidence
45. Staff have assessed Option 1: Status
quo, no set net fishing ban at Matakatia Bay and Option 2: Make a seasonal set
net fishing ban - against decision-making criteria including regulatory
requirements. This tests whether the evidence, scale and significance of the
problem justifies additional intervention such as a set net ban or restriction
at Matakatia Bay.
46. Staff
advise that Option 1: status quo, no set net fishing ban at Matakatia Bay
should be maintained. When tested against legislative decision-making
criteria, maintain the status quo is the most appropriate, proportionate, and
reasonable approach considering the evidence.
47. Staff
advise that Option 2: Make a seasonal set net fishing ban at Matakatia Bay when
tested against legislative decision-making criteria, was not appropriate,
proportionate, and reasonable considering the evidence.
48. Table
3 provides a summary of the assessment of Option 1: Status quo and Option 2:
Make seasonal set net fishing ban against Public Safety and Nuisance Bylaw 2013
objectives and Local Government Act 2002 decision-making criteria. An analysis
of the objective’s pros, cons, risks and implementation of both options
has been undertaken and is contained in Attachment C.
Table 3 Assessment against
decision-making criteria
|
Meets criteria
|
-
No impact
|
Conflicts with criteria
|
|
Option
|
Effective
|
Appropriate / proportionate
|
Reasonable
|
|
Option 1: status quo, no set net fishing ban
|
-
|
|
|
|
Option 2: make a seasonal set net fishing ban
|
|
|
|
Community
views
Ban is supported by
requesters, Hibiscus and Bays Local Board support investigation
49. Some
residents support a ban, as expressed in the request and indicated by
complaints made to council. The Hibiscus and Bays Local Board supported an
investigation of the ban as evidenced by the Notice of Motion.
Ministry for
Primary- no set net over concentration, local marae supports food gathering
50. Kaiwhakahaere
/ Chairman of community marae, Te Herenga Waka o Orewa does not consider there are safety or nuisance issues from set net fishing at
Matakatia Bay. The chair does not believe the Bay is a popular swimming beach
(unlike locations where other bans were made). The chair also spoke of the
importance of being able to gather your own food for Māori and Pacific Peoples,
especially during hard times such as the pandemic.
51. Regional
Manager Fisheries Compliance at Ministry for Primary industries stated that
Matakatia Bay is not known to them for an over concentration of set net fishing
or for non-compliance with fishing rules.
52. If
a ban were made the Ministry stated it would help to enforce it but noted that
this would take resource away from other areas where there are problems. The
manager also stated a ban would likely displace set net fishing to other
locations where it will become more concentrated.
53. Council
staff do not know the views of the wider community or those who engage in set
net fishing.
Tauākī whakaaweawe
āhuarangi
Climate impact statement
54. There
are no additional climate impacts, associated with the purpose of this report.
Ngā whakaaweawe me
ngā tirohanga a te rōpū Kaunihera
Council group impacts and views
55. Set
net fishing bans impact Licensing and Regulatory Regional Compliance teams. Council’s Licensing and Regulatory Compliance staff
enforce set net fishing bans using a graduated approach to compliance. This
includes speaking with those breaching a ban, and potentially issuing
prosecution or trespass notices.
56. Regional
compliance officers provided monitoring data and their observations about
issues at Matakatia Bay. Compliance officers did not have further evidence or a
view that set net fishing causes a high level of nuisance or safety risk.
Ngā whakaaweawe
ā-rohe me ngā tirohanga a te poari ā-rohe
Local impacts and local board views
57. The
issue is of high community interest to Hibiscus and Bays Local Board and some
residents at Matakatia Bay. The board requested the committee investigate a ban
through a Notice of Motion on 3 September 2021.
Tauākī whakaaweawe
Māori
Māori impact statement
58. 
Matakatia Bay is not currently part of a customary rohe moana and
has no specific customary fishing rules applied.[4] Senior
Customary Fisheries Advisor at Ministry for Primary Industries says
conversations with local hapu / iwi about creating a rohe moana are likely to
take place soon. This would enable customary fishing rules to be made.
59. Iwi
with an interest in Matakatia Bay were not able to take up an invitation to
provide a view on set net fishing in Matakatia Bay.
60. Staff
also engaged community marae Te Herenga Waka O Orewa. The Kaiwhakahaere /
Chairman spoke of the importance of being able to gather your own food for
Māori and Pacific Peoples, especially during hard times such as the
pandemic. He told staff Matakatia Bay is not a popular swimming beach, in
contrast to locations where other bans were made. He does not think there are
any issues associated with set net fishing there.
61. Without
a set net fishing ban Māori could choose to gather kai through set net
fishing at Matakatia Bay.
Ngā ritenga
ā-pūtea
Financial implications
62. If
council decides not to make a set net fishing ban, there are no financial
implications.
Ngā raru tūpono me
ngā whakamaurutanga
Risks and mitigations
63. Risks
with the recommended option are below.
|
If…
|
then…
|
Mitigation
|
|
residents who have
raised issues do not support the assessment …
|
they may continue to think
a set net fishing ban is justified.
|
Communicate the reasons
for the decision in the minutes of this meeting.
|
Ngā koringa ā-muri
Next steps
64. If
the status quo -no set net ban is maintained, no further action is required.
Ngā tāpirihanga
Attachments
|
No.
|
Title
|
Page
|
|
a⇩
|
Notice of Motion and Community Request
|
21
|
|
b⇩
|
Map and Photos of Matakatia Bay
|
99
|
|
c⇩
|
Assessment of evidence and options
|
101
|
|
d⇩
|
The Ministry for Primary Industries Compliance Data
|
107
|
Ngā kaihaina
Signatories
|
Author
|
Bonnie Apps - Senior Policy Advisor
|
|
Authorisers
|
Ben Brooks - Senior Policy Manager, Social Wellbeing
Policy
Kataraina Maki - General Manager - Community and
Social Policy
Craig Hobbs - Director Regulatory Services
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
Review findings of the Bylaw for Indoor
Domestic Fires 2017
File No.: CP2022/11237
Te take mō te
pūrongo
Purpose of the report
1. To
whakaae / agree the findings and improvements from the review of the Bylaw for Indoor
Domestic Fires 2017 and to request an options report for a new improved bylaw.
Whakarāpopototanga matua
Executive summary
2. Staff
have prepared a findings report (Attachment A) to enable the Regulatory
Committee to complete a review of the Bylaw for Indoor Domestic Fires 2017.
3. The
Bylaw will expire on 25 May 2024. The council must decide whether a bylaw is
still required and, if so, adopt a new bylaw before the expiry date to avoid a
regulatory gap.
4. Key
findings from the review are:
· the Bylaw
reduces public health risks and nuisance by regulating the design standard of
indoor domestic fireplaces
· indoor
domestic fireplaces continue to cause harm and nuisance in Auckland
· the Bylaw
fills a regulatory gap in the national legislation about the design of
fireplaces
· the Bylaw is
ineffective at addressing public nuisance, the Unitary Plan is used instead
· the Bylaw is
valid and reasonable but requires technical and structural improvements.
· the current
Bylaw does not give rise to any unjustified implications and is not
inconsistent with the New Zealand Bill of Rights Act 1990.
5. Staff
recommend that the committee agree the key findings of the review, determine
that a bylaw is still required, that needs structural and technical improvements,
and request an options report about how the Bylaw could be improved. Taking
this approach will progress the review findings and allow consideration of
options on what a new bylaw would regulate and how.
6. There
is a low reputational risk about the review process and targeted engagement.
This can be mitigated through future public engagement on a new and improved
bylaw proposal.
7. If
approved, staff will develop options in early 2023 that respond to the review
findings for consideration by the appropriately delegate committee.
Ngā tūtohunga
Recommendation/s
That the Regulatory Committee:
a) whakaae
/ agree to the key findings in the ‘Indoor Domestic Fires Bylaw 2017:
2022 Review Findings Report’ in Attachment A of this agenda report
b) whakaae
/ agree a bylaw is the most appropriate way to address public health risks from
the use of indoor domestic fireplaces not regulated by the national wood burner
standards, and the specific improvements for staff to
investigate and report back are:
i) removing
public nuisance clause (cl 6(1)) to avoid duplication with the Unitary Plan
ii) removing
prohibited fuels clause (cl 6 (2)) and relying on existing non-regulatory
measures to address issues on unenforceability
iii) considering
a higher design standard (cl 7) to align with global best practice
iv) considering
rules for combustion appliances without a flue or chimney and alignment with
the Healthy Homes Standards to address harmful emissions indoors
v) removing
reference to ‘air quality’ in the Bylaw’s title, using plain
language and clarifying the terms and definitions related to the Auckland Urban
Air Quality Area (cl 7) to make the Bylaw easier to understand and comply with
vi) balancing regulatory restrictions, environmental concerns and the
well-being of low socio-economic families during winter months.
c) tono
/ request that staff, as delegated by the Chief Executive, prepare a report in
response to the findings that develops options for a new and improved bylaw for
consultation in 2023.
Horopaki
Context
Bylaw reduces public health risks and nuisance by
regulating indoor domestic fireplaces
8. The Governing
Body adopted Te Kaunihera o Tāmaki Makaurau Te Ture ā-Rohe Kounga Hau
mō ngā Pākaiahi Tara ā-Whare / Auckland Council Air Quality
Bylaw for Indoor Domestic Fires 2017 on 25 May 2017 (GB/2017/49).
9. The
Bylaw seeks to protect public health and minimise nuisance from smoke, odour
and ash discharged from indoor domestic fireplaces.
10. It sets the design
standard (manufactured emission rate) for new indoor domestic fireplaces in the
Auckland Urban Air Quality Area and prohibits discharges of contaminants and
burning of certain materials in any indoor domestic fireplace.
11. The Bylaw does not
directly address environmental concerns from poor air quality. These are
regulated by the Auckland Unitary Plan and the Resource Management Act 1991.
The Bylaw aligns with the strategic directions in the
Auckland Plan 2050
12. The Bylaw supports
outcomes in the Auckland Plan 2050, particularly by improving the health and
wellbeing of Aucklanders.
The
Bylaw’s strategic alignment with the Auckland Plan 2050
|
Outcome
|
Belonging
and Participation
|
|
Direction
2
|
Improve
health and wellbeing for all Aucklanders by reducing harm and disparities in
opportunities.
|
|
Outcome
|
Māori
Identity and Wellbeing
|
|
Direction
1
|
Advance
Māori wellbeing for whānau, hapū, iwi and Māori
communities to lead healthy and prosperous lives where their home heating and
health needs are met.
|
|
Alignment
|
The
Bylaw seeks to improve health by
ensuring that newly installed fireplaces are clean burning (meet the design
standard) and prevent nuisance by prohibiting certain materials from being
burnt in fireplaces, for example wet wood.
|
|
|
|
Bylaw framework
The Bylaw forms part of a wider regulatory and strategic
framework
13. The Bylaw
forms part of a wider regulatory and strategic framework that includes central
government legislation, local plans, and international and domestic guidelines.
Bylaw
regulatory and strategic framework
The Local
Government Act 2002 sets out review requirements for the Bylaw
14. The Bylaw will expire on
25 May 2024. The council must decide whether a bylaw is still required and if
so, adopt a new bylaw before that date to avoid a regulatory gap.
15. Any new bylaw must be
well-drafted, meet the requirements of the New Zealand Bill of Rights Act 1990,
and be adopted using a public consultative procedure.
16. If no longer required,
the council can decide to revoke the Bylaw using a public consultative
procedure or allow the Bylaw to expire.
Process to
make a new Indoor Domestic Fireplaces Bylaw
Staff prepared a findings report as the first step in
reviewing the Bylaw
17. Between March and June
2022 staff carried out research and engagement to complete the findings report
(Attachment A), the first step in the Bylaw review process. This included:
· a review of
the latest domestic and international literature, publications and guidelines
· interviews
with scientists, medical experts, industry representatives and operational
staff
· notification
of and follow up with mana whenua and Māori health organisations.
18. Most engagement took
place using online methods due to COVID-19.
Tātaritanga me ngā
tohutohu
Analysis and advice
Indoor
domestic fireplaces continue to cause harm and nuisance in Auckland
19. Home heating remains the largest source of air pollution from
particulate matter.
20. Particulate matter means a mixture of solid
or liquid particles found in the air that are small enough to be inhaled. Both short-term and long-term exposure negatively impact health.
21. Particulate matter is often classified by its size. The smaller the
particle, the greater the health impact:
· larger
particles generally deposit in the nose, throat and upper airways. This
includes naturally-occurring particles, such as wind-blown dust, over which we
have no control
· fine particles
deposit deep in the lungs. Fine particles are a focus as they create the highest
health risk and are mainly produced by human activities.
The health and social costs of fine particulate matter in
New Zealand
22. Exposure to fine particles can have harmful health impacts.
Nationally, domestic fires alone contributed to 962 premature adult deaths,
1435 respiratory hospitalisations, 1940 cardiovascular hospitalisations and
1255 restricted activity days.
23. In Auckland, fine particles have an estimated total social cost of
$1.2 billion per year
contributing to approximately 260 premature deaths.
Domestic fireplaces alone contributed to 74 per cent of
Auckland’s health related social costs ($724 million).
24. High concentrations of particulate matter contribute to Auckland
exceeding recommended air quality targets that identify safe fine particle
levels (refer section 6.5.1 of Attachment A).
25. Concentrations of particulate matter in
Auckland are highest in winter, where wood smoke creates an average of 12
tonnes of fine particles a day. These discharges are significantly higher than
those from transport (three tonnes per day) and industry (one tonne per day).
26. There is a declining trend however in the use of wood for home
heating. In 2018, an estimate of 17.7 per cent of Aucklanders burnt wood, coal
or pellets to heat their homes in contrast to 39.5 per cent using heat pumps
and 53.1 per cent using electric heaters.
Complaints indicate that public health and nuisance problems continue
to occur
27. The council received 872 indoor domestic fireplaces complaints
between 2017-2022:
· all complaints
related to nuisance, either from smoke, odour and ash, or burning of prohibited
fuels (materials)
· 95 complaints also mentioned health concerns.
The most common problems related to difficulty breathing, aggravated asthma and
concern for the health of children.
The
Bylaw’s design standard helps protect public health and minimises
nuisance
28. Clause
7 of the Bylaw is effective and still necessary to protect public health.
29. It fills a regulatory gap created by the National Wood Burner
Standards:
· an estimated
28 per cent of indoor domestic fireplaces in Auckland were regulated solely
under the Bylaw since 2017
· demand for the
installation of indoor domestic fireplaces remains high, with more than 1000
fireplaces consented every year since 2018
· an estimated 87 per cent of new consented
fireplaces received a code of compliance certificate between 2017 and 2022,
negating the need for formal enforcement.
30. Building
Consents staff refer applicants to the authorised national list of approved
wood burners and advise them of the need to meet the regional design standard
in the Bylaw.
31. This
verification process ensures that indoor domestic fireplaces are safe and
comply with the New Zealand Building Code before a formal enforcement takes
place.
The
Bylaw fills a regulatory gap in the national legislation about the design of
fireplaces
32. Currently,
there are no suitable alternative regulatory approaches for indoor domestic
fireplaces that are excluded from the National Wood Burner Standards.
Domestic fireplaces
covered by National Wood Burner Standards and
the Bylaw
33. Domestic
fireplaces are the main source of particulate matter in winter. Without the
Bylaw, 28 per cent of the Auckland fireplace market that contributes to harmful
health impacts would not be regulated.
34. Proposed
amendments to the National Wood Burner Standards (in the National Environmental
Standards for Air Quality) however include a design standard for all indoor
domestic fireplaces on properties smaller than two hectares in size. Any
options report will assess the impact of the proposed amendments on the
appropriateness and form of any new bylaw.
The
Bylaw is ineffective at addressing public nuisance, Unitary Plan used instead
35. The Bylaw is ineffective at addressing
public nuisance. Discharges of contaminants are already
addressed in the Auckland Unitary Plan and enforced using the Resource
Management Act 1991:
· under the Auckland Unitary Plan, indoor domestic fireplaces
are a permitted activity required to meet general standards. These standards
contain similar rules for discharges of contaminants as the Bylaw. For example,
they protect public health and properties by prohibiting noxious, dangerous, or
objectionable odour, dust, particulate, smoke or ash beyond the boundary of the
premises
· the Resource Management Act
1991 provides the council with a greater variety of enforcement tools. This
includes infringement notices not available under the Bylaw
· it is
difficult to enforce what materials people burn in domestic fireplaces under
the Bylaw. Enforcement officers have no power to enter private properties
unless invited. The use of a search warrant would require significant evidence
to meet the reasonableness test, authorisation by a court judge and a police
presence
· officers
instead enforce the effects of what is burned (for example, smoke and odour)
using the Unitary Plan (this can be determined at the property boundary)
· the council
also uses non-regulatory measures such as the website and educational pamphlets
to inform the public on what fuels can be burnt safely and efficiently
· this non-regulatory approach aligns with the national practice of providing
advice which could be included as ‘related information’ in any new
bylaw (related information can be updated without any formality).
The
Bylaw is valid and reasonable but requires technical and structural
improvements
36. The research and engagement with stakeholders contained in the
findings report (Attachment A) has found that the Bylaw plays an
important role in regulating indoor domestic fireplaces but needs technical and
structural improvements.
37. Specific improvements for staff to investigate and present in an
options report are:
· removing
public nuisance clause (cl 6(1)) to avoid duplication with the Unitary Plan
· removing
prohibited fuels clause (cl 6 (2)) and relying on existing non-regulatory
measures to address issues on unenforceability
· considering a
higher design standard (cl 7) to align with global best practice
· considering
rules for combustion appliances without a flue or chimney and alignment with
the Healthy Homes Standards to address harmful emissions indoors
· removing
reference to ‘air quality’ in the Bylaw’s title, using plain
language and clarifying the terms and definitions related to the Auckland Urban
Air Quality Area (cl 7) to make the Bylaw easier to understand and comply with.
· balancing
regulatory restrictions, environmental concerns and the well-being of low
socio-economic families during winter months.
The
Bylaw does not contradict other legislation nor does it have Bill of Rights
implications
38. The
Bylaw is consistent with other legislation (is not ‘repugnant’).
The Bylaw:
· does however
duplicate general standards for permitted activities under the Auckland Unitary
Plan which also prohibits discharges of contaminants that are likely to cause
adverse effects on human health and nuisance from smoke, odour and ash to
neighbouring properties.
· does not have
any implications under the Bill of Rights Act 1990. Any limits on rights or
freedoms are considered proportionate and justifiable because they protect
public health and minimise nuisance.
Staff
recommend the committee endorse the findings and request an options report
39. This
report establishes that issues caused by indoor domestic fireplaces remain. Discharges of particulate matter continue to pose serious public
health risks and smoke, odour and ash continue to result in significant
nuisance to neighbouring properties.
40. Staff
recommend that the committee agree the key findings of the review, determine
that a bylaw is still necessary but could be improved, and request an options
report.
41. The
review findings would be used to develop options on what a new bylaw would
regulate and how. The options report would recommend for example, whether any new
bylaw should contain rules about prohibited discharges and fuels or a regional
design standard, or both.
Tauākī whakaaweawe
āhuarangi
Climate impact statement
42. While
the Bylaw does not directly address climate change, discharges of particulates
from indoor domestic fireplaces contribute significantly to poor air quality,
particularly in winter.
43. The Bylaw
indirectly supports climate change goals by ensuring that newly installed
indoor domestic fireplaces are clean burning (meet the design standard) and by
prohibiting burning of certain fuels such as wet or treated wood, household
waste and vegetation.
Ngā whakaaweawe me
ngā tirohanga a te rōpū Kaunihera
Council group impacts and views
44. The Bylaw
impacts the Regulatory and
Licencing Compliance and Building Consents units, who have both
participated in the review findings and suggested improvements.
45. Relevant
technical experts and scientists provided feedback on the effectiveness of the
Bylaw and suggested improvements.
46. Stakeholder
feedback relating to improving data recording systems, processing of consent
applications, public guidelines and provision of incentives for clean heating
has been passed on to the appropriate teams. The Regulatory and Licencing
Compliance unit are already undertaking a review of how they record complaints
data.
Ngā whakaaweawe
ā-rohe me ngā tirohanga a te poari ā-rohe
Local impacts and local board views
47. Based
on the agreed principles and processes in the Local Board Involvement in
Regional Policy, Plans and Bylaws 2019, the Bylaw has been assessed as low
interest with no impact on local governance for local boards.
48. The
Bylaw regulates indoor domestic fireplaces located on private properties and
received low levels of public feedback during its development (51 people).
49. If
a new bylaw is proposed, interested local boards will have an opportunity to
provide their formal views on public feedback to the proposal to the Bylaw
Panel in 2023.
Tauākī whakaaweawe
Māori
Māori impact statement
50. The Bylaw supports manaakitanga and kaitiakitanga in the Independent
Māori Statutory Board’s Māori
Plan for Tāmaki Makaurau and the Schedule
of Issues of Significance by promoting clean burning fireplaces (meet the design
standard) and preventing smoke nuisance to neighbouring properties from burning
of prohibited fuel such as wet wood.
51. Staff notified 19 mana whenua groups, eight Māori health
organisations and three mataawaka marae in collaboration with Ngā Matarae.
52.
Feedback from mana whenua highlighted the need to balance regulatory
restrictions and the wellbeing of low socio-economic families during winter:
53. Suggested
improvements will be assessed in any options report. Staff will engage with
mana whenua and mataawaka on any proposal through the public consultative
process.
Ngā ritenga
ā-pūtea
Financial implications
54. The cost
of the Bylaw review and implementation will be met within existing budgets.
Ngā raru tūpono me
ngā whakamaurutanga
Risks and mitigations
55. The following risks have
been identified:
|
If...
|
Then...
|
Mitigation
|
|
stakeholders or the
public are concerned about suggested improvements and targeted engagement to
date.
|
there may be a negative
perception and reduced trust in council about its bylaw review processes and
consultation to date.
Low reputational risk.
|
Future opportunity for
stakeholders and the public to provide feedback on a new bylaw as part of the
public consultation process.
|
Ngā koringa ā-muri
Next steps
56. If
approved, the next step will be for staff to develop options in early 2023 that
respond to the review. The options will be considered by the appropriately
delegated committee in the new term.
Ngā tāpirihanga
Attachments
|
No.
|
Title
|
Page
|
|
a⇩
|
Indoor Domestic Fires Bylaw 2017: 2022 Review Findings
Report
|
119
|
Ngā kaihaina
Signatories
|
Authors
|
Magda Findlik - Senior Policy Advisor
Chelsea Majoor - Policy Advisor
|
|
Authorisers
|
Paul Wilson - Senior Policy Manager
Kataraina Maki - General Manager - Community and
Social Policy
Craig Hobbs - Director Regulatory Services
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
Summary of Regulatory Committee
Information - updates, memos and briefings - 9 August 2022
File No.: CP2022/10678
Te take mō te
pūrongo
Purpose of the report
1. To note the progress on the forward work programme appended as
Attachment A.
2. To receive a summary and provide a public record of
workshops, memoranda or briefing papers that may have been held or been
distributed to Regulatory Committee members.
Whakarāpopototanga matua
Executive summary
3. This
is a regular information-only report which aims to provide public visibility of
information circulated to committee members via memo or other means, where no
decisions are required.
4. The
following memoranda have been distributed:
|
Date
|
Subject
|
|
6/07/2022
|
Hearings
held, hearing panels and hearing outcomes July 2021 – June 2022
|
5. These
documents can be found on the Auckland Council website, at the following link:
http://infocouncil.aucklandcouncil.govt.nz/
o at the top left of the
page, select meeting/Te hui “Regulatory Committee” from the
drop-down tab and click “View”;
o under
‘Attachments’, select either the HTML or PDF version of the
document entitled ‘Extra Attachments’.
6. Note
that, unlike an agenda report, staff will not be present to answer
questions about the items referred to in this summary. Committee
members should direct any questions to the authors.
|
Ngā tūtohunga
Recommendation/s
That the Regulatory Committee:
a) note
the progress on the forward work programme appended as Attachment A of the
agenda report.
b) receive
the summary of Regulatory Committee report 9 August 2022.
|
Ngā tāpirihanga
Attachments
|
No.
|
Title
|
Page
|
|
a⇩
|
Regulatory Committee Forward Work Programme
|
185
|
|
b⇩
|
Hearings held, hearing panels and hearing outcomes
July 2021 – June 2022
|
195
|
Ngā kaihaina
Signatories
|
Author
|
Sophie White - Kaitohutohu Mana Whakahaere /
Governance Advisor
|
|
Authoriser
|
Craig Hobbs - Director Regulatory Services
|
|
Regulatory
Committee
09 August 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
|
|
|
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.
|
|
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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.
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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.
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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.
|
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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.
|
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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.
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Completed
|
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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
|
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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
|
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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
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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
|
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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
|
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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
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
|
|
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
Link to decision
Options Report 17 November 2020
Link to decision
Decision Report 11 May 2021
Link to decision
|
|
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
Link to decision
|
|
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
Link to decision
Decision
report 14 September 2021
Link to decision
|
|
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
Link to decision
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
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
Determination of an Objection to a
Menacing Dog Classification by Richard Grounds
File No.: CP2022/11220
Te take mō te
pūrongo
Purpose of the report
1. To
hear and determine the objection by Mr Richard Grounds against the
classification of his dog, Spark, as a menacing dog under section 33A of the
Dog Control Act 1996 (DCA).
Whakarāpopototanga matua
Executive summary
2. Mr
Grounds is the owner of a 6-year-old de-sexed Bulldog crossbreed called Spark,
also called Sparky.
3. On
13 July 2021 Spark attacked a West Highland terrier by pinning it down and
biting him on his right hind leg. The attack was unprovoked and necessitated
veterinary treatment.
4. On
14 July 2021 Spark attacked a Labradoodle by lunging at him and pinning him
down by the neck. The Labradoodle was yelping during the attack but sustained
no visible injuries.
5. 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.
6. 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.
7. Consequently,
and on 28 July 2021 Animal Management classified Spark 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 Grounds on 9 August
2021. Attachment A is a copy of the notice.
8. On
11 August 2021 Mr Grounds objected to the classification (refer Attachment B). The
basis of his objection is that he has not had sight of the evidence which
resulted in the classification. This information has since been released to Mr
Grounds under the Local Government Information and Meetings Act 1987.
9. Spark’s behaviour in these circumstances may pose a threat to
other dogs. This threat will be reduced if Spark is muzzled when in public
places because her aggressive response by attacking other dogs will be
prevented.
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 Grounds:
· Provides a dog behavioural assessment report on Spark,
· Has not been issued with infringement notices relating to Spark
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) uphold
the 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; 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
17. Summary
of the first complainant’s statement about the attack on 13 July 2021
(refer Attachment C):
On 13 July 2021 the first complainant and her husband took
their dog, a West Highland Terrier, for a walk at the western end of Onetangi
beach. Their dog was not on a leash. The beach is an off-leash area during
wintertime. There were workmen busy at a house situated on the beach. Spark was
tied with a long rope to a tree on the beach. Their dog went up to Spark to
meet and greet, when Spark suddenly attacked their dog by pinning him down and
biting him on his right hind leg.
The complainant’s dog sustained bite wounds to his
leg and a dislocated hip for which he received veterinary treatment. The
clinical report and photos of the injuries are attached, and marked Attachment
D and E.
18. Summary
of the second complainant’s statement regarding the attack on 14 July
2021 (refer Attachment F):
On 14 July 2021 the second complainant and her children
were walking their dog, a Labradoodle, along Onetangi beach. There was a man
busy working at a house on the beach. Spark was tethered to a tree but hidden
by a ute parked on the beach. The complainant’s dog was startled when
Spark appeared from behind the ute and walked over to sniff her. Spark
then lunged at the Labradoodle and pinned him down by the neck. The Labradoodle
was yelping but sustained no visible injuries.
On 14 July 2021, an animal management officer took
photographs of the scene where the two attacks had occurred, refer Attachment
G.
19. Summary
of subsequent complaint on 27 December 2021 (refer Attachment H)
On 27 December 2021, the complainant and others were
sitting on the deck at his home in Pearl Bay on Waiheke Island. There is no
boundary fence between the property and the beach. His two dogs, a West
Highland terrier and a Cavoodle were playing on the front lawn with his
guests’ dog, an English Spaniel. Mr Grounds was walking Sparky on a lead
but unclipped her. Sparky went towards the dogs and the West Highland terrier
started barking at Sparky. Sparky grabbed the West Highland terrier around its
back and lifted it up causing it to squeal. The West Highland terrier was not
injured during this incident.
Steps taken by Mr Grounds to prevent any threat to persons or
animals
20. Animal
Management is unaware of any steps taken by Mr Ground to prevent any threat by
Spark to persons or animals.
Matters relied upon in support of the objection
21. Mr
Grounds was not present during the July attacks. Animal Management is not aware
of the basis of his objection
Tātaritanga me ngā
tohutohu
Analysis and advice
22. Public
safety is at the heart of the DCA. For this reason, the purpose of classifying
a dog as menacing is to protect public safety by reducing or eliminating the
threat of harm the dog may pose.
23. It
is not disputed that Spark attacked the two dogs in a public place. In issue is
whether:
· Spark was under
control, and
· The attacks were
unprovoked.
24. Spark
was tethered with a long rope to a tree in a public place, but not in sight or
under supervision of the person in whose care she was. A person leaving their
dog in a public place, even if it is tethered, must be confident that the dog
could behave properly in the presence of other dogs of varying sizes and
temperaments. Likewise, dog owners walking their dog in a public place are
entitled to expect that other dog owners would meet that standard. Both
complainants state that the attacks were unexpected and unprovoked.
25. Spark’s aggressive reaction to a dog coming up to her to sniff
her, as dogs do, poses a threat to other dogs. This threat will be eliminated
if Spark is muzzled when she is in a public place.
Tauākī whakaaweawe
āhuarangi
Climate impact statement
26. 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
27. 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
28. This
report has no local impact. Local Board views have not been sought.
Tauākī whakaaweawe
Māori
Māori impact statement
29. This
report has no impact on Māori.
Ngā ritenga
ā-pūtea
Financial implications
30. The
decision by the Regulatory Committee on the objection to the menacing classification
has no financial implications and has been reviewed by Kevin Smith, Commercial
Finance Manager, Regulatory Services.
Ngā raru tūpono me
ngā whakamaurutanga
Risks and mitigations
31. There are
no risks in upholding the classification.
Ngā koringa ā-muri
Next steps
32. The
Regulatory Committee must give Mr Grounds written notice of its decision as
soon as practical.
Ngā tāpirihanga
Attachments
|
No.
|
Title
|
Page
|
|
a⇩
|
Notice of classification
|
221
|
|
b⇩
|
Objection to classification
|
223
|
|
c⇩
|
First complainant's statement
|
225
|
|
d⇩
|
Veterinarian clinicial report
|
231
|
|
e⇩
|
Photographs of injured dog
|
235
|
|
f⇩
|
Second complainant's statement
|
239
|
|
g⇩
|
Photographs
|
241
|
|
h⇩
|
Third complainant's statement
|
243
|
Ngā kaihaina
Signatories
|
Author
|
Chrisna Nortje - Principal Specialist, Animal
Management
|
|
Authorisers
|
Eleanor Waitoa, Manager Animal Management
James Hassall - General Manager, Licensing and
Regulatory Compliance
Craig Hobbs - Director Regulatory Services
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
Determination of an objection to a
menacing dog classification - Cameron Waiariki
File No.: CP2022/11229
Te take mō te
pūrongo
Purpose of the report
1. To
hear and determine the objection by Mr Waiariki against the classification of
his dog, Oscar, as a menacing dog under section 33A of the Dog Control Act 1996
(DCA).
Whakarāpopototanga matua
Executive summary
2. Mr
Waiariki is the owner of a 2-year 2-month-old male entire Rottweiler called
Oscar.
3. On
20 December 2021 Oscar attacked another dog, that was being walked on a leash,
by biting it on its cheek. The bite wound necessitated veterinary treatment.
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
10 January 2022, Animal Management classified Oscar menacing by deed because it
considered that the dog may pose a threat to the safety of persons or animals.
The notice was served on Mr Waiariki on 4 February 2022 (Attachment A).
7. On
18 February 2022, Mr Waiariki and his wife objected to the classification
(Attachment B). The bases of their objection are that:
· Oscar
is not aggressive towards other dogs,
· They have offered
to pay the complainant’s vet costs, and
· The altercation
between the two dogs occurred after the complainant’s dog had started to
lunge at Oscar.
8. There
is a conflict between the complainant’s statement and Mrs
Waiariki’s version about the events immediately before the attack:
· The complainant
states that Oscar came out from a property with its hackles raised and attacked
her dog without warning
· Mrs Waiariki
raises provocation as the reason for the attack. She states that Oscar went to
the complainant’s dog to greet it but that that dog then lunged at Oscar.
She does not mention any observed signs of aggression exhibited by the
complainant’s dog.
9. Even on Mrs Waiariki’s version, Oscar may still pose a threat
to other dogs. A person leaving their dog uncontrolled
and unleashed in a public place must be confident that their dog could behave
properly in the presence of other dogs of varying sizes and temperaments. If
Oscar were again put in a similar situation he may possibly react in a similar
way and thus pose a threat to other dogs.
10. This threat will be reduced if Oscar is neutered and will be
eliminated if Oscar is muzzled when in a public place.
11. 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 Waiariki:
· Provides
a dog behavioural assessment report on Oscar,
· Has
not been issued with infringement notices relating to Oscar 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) uphold
the classification.
Horopaki
Context
12. The
Governing Body of the Auckland Council has delegated to the Regulatory
Committee the responsibility for regulatory hearings in Resolution No.
GB/2019/109 which was adopted on 12 November 2019. The regulatory hearings
which the Regulatory Committee is responsible include, amongst others,
decisions under the DCA in relation to the consideration of objections under
the DCA.
13. 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.
14. 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.
15. 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.
16. An
objection suspends the provisions of section 33E(1) of the DCA.
17. 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
18. Summary
of the complainant’s statement (Attachments C and D).
On 20 December 2021 at about 6.45pm the
complainant and her partner were walking their dog, a 2-year 2-month-old male
entire Swiss Husky, along Clive Road in Mount Eden. Their dog was on a lead.
When they were about 3 metres away from a residential property situated next to
the Tahaki Reserve, a woman came out of that property with a Rottweiler dog.
The woman was later identified as Mrs Waiariki and the dog as Oscar. Oscar was
not on a lead and immediately came towards their dog with its hackles raised.
It attacked their dog around its face. The complainant’s partner tried to
pull their dog away, but Oscar kept its grip on their dog. The woman ran to
them and called Oscar to stop. Oscar eventually released their dog.
Their dog sustained a puncture wound to
its cheek. The dog was taken to the vet for treatment. A copy of the vet bill
is attached as Attachment E and photos of the bite wound are attached as
Attachment F.
19. Summary
of Mr and Mrs Waiariki’s case
Mr Waiariki admitted during an
interview with the investigating animal management officer that Oscar had been
off leash when his partner left home to take the dog for a walk at the nearby
park. They are willing to reimburse the complainant her vet expenses.
In their objection to the menacing
classification notice (see Attachment B), Mrs Waiariki admits that there had
been an incident during which Oscar bit the complainant’s dog in reaction
to the complainant’s dog starting to lunge at Oscar.
20. Historical
report of aggressive behaviour
On
22 July 2021, the complainant reported aggressive behaviour by a Rottweiler at
a property situated in Clive Road next to the Tahaki Reserve. The complaint
involved the dog jumping up against the border fence and growling at
passers-by. This dog was identified as Oscar. The job sheet RFS 8100877874 is
attached and marked G.
21. The
complainant’s version that Oscar was the aggressor is more probable for
the following reasons:
· Oscar’s
hackles were raised when it ran over to the complainant’s dog
· Oscar’s
action on 22 July 2021 and again on 20 December 2021 is typical of territorial
aggression
· Oscar’s
aggression is further manifested by him not releasing his grip on the
complainant’s dog
· There is no
evidence that the complainant’s dog was aggressive.
Steps taken by Mr Waiariki to prevent any threat to persons or
animals
22. Mr
Waiariki has not informed Animal Management whether Oscar has since this
incident been de-sexed, or whether Oscar has attended any behavioural
modification courses.
Matters relied upon in support of the objection
23. The
bases of the objection are that:
· Oscar is not
aggressive towards other dogs,
· They have offered
to pay the complainant’s vet costs, and
· The altercation
between the two dogs occurred after the complainant’s dog had started to
lunge at Oscar.
Tātaritanga me ngā
tohutohu
Analysis and advice
24. 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 in order to classify a
dog as menacing. It suffices if there is a potential of harm by the dog to
persons and animals.
25. Oscar
may be a threat to other dogs even on Mrs Waiariki’s version that Oscar
reacted to the complainant’s dog starting to lunge at him. In the public
Oscar will meet with dogs with varying sizes and temperaments. It is expected
that a dog would not react disproportionally at another dog’s barking or
lunging by attacking it. If Oscar were put in a similar
situation, he may possibly react in a similar way by attacking the other dog.
26. This threat will be eliminated if he is muzzled when in public. His
aggression will also be tempered if he is de-sexed.
27. 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 Waiariki:
· Provides
a dog behavioural assessment report on Oscar,
· Has
not been issued with infringement notices relating to Oscar within the
preceding 12-month period, and
· Has obtained a
responsible dog ownership licence.
Tauākī whakaaweawe
āhuarangi
Climate impact statement
28. 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
29. 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
30. This
report has no local impact. Local Board views have not been sought.
Tauākī whakaaweawe
Māori
Māori impact statement
31. This
report has no impact on Māori.
Ngā ritenga
ā-pūtea
Financial implications
32. The
decision by the Regulatory Committee on the objection to the menacing
classification has no financial implications and has been approved by Kevin
Smith, Commercial Finance Manager, Regulatory Services.
Ngā raru tūpono me
ngā whakamaurutanga
Risks and mitigations
33. There are
no risks in upholding the classification.
Ngā koringa ā-muri
Next steps
34. The
Regulatory Committee must give Mr Waiariki written notice of its decision as
soon as practical.
Ngā tāpirihanga
Attachments
|
No.
|
Title
|
Page
|
|
a⇩
|
Notice of classification
|
251
|
|
b⇩
|
Objection to menacing classification
|
253
|
|
c⇩
|
Complainant statement - short
|
255
|
|
d⇩
|
Complainant statement - long
|
261
|
|
e⇩
|
Vet bill
|
267
|
|
f⇩
|
Photo of bite wounds
|
269
|
|
g⇩
|
Request for Service 8100877874
|
273
|
Ngā kaihaina
Signatories
|
Author
|
Chrisna Nortje - Principal Specialist, Animal
Management
|
|
Authorisers
|
Eleanor Waitoa, Manager Animal Management
James Hassall - General Manager, Licensing and
Regulatory Compliance
Craig Hobbs - Director Regulatory Services
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
Objection against disqualification of
dog owner - Alexandra Johnston
File No.: CP2022/11205
Te take mō te
pūrongo
Purpose of the report
1. To
hear and determine the objection by Mrs Alexandra Johnston against the
disqualification of owning a dog pursuant to Section 25 of the Dog Control Act 1996 (DCA).
Whakarāpopototanga matua
Executive summary
2. Mrs
Johnston was the owner of an adult male entire Siberian Husky called Aspen.
3. On
13 April 2021 Mrs Johnston was convicted on two charges under section 57(2) of
the DCA for Aspen attacking and killing at least one chicken and a guinea pig
on 23 May 2020. Having found that the circumstances of the offences were not
exceptional the court was compelled to order the destruction of Aspen. Mrs
Johnston challenged her conviction in the High Court. Her appeal was dismissed
on 9 December 2021. She subsequently applied to the Supreme Court for leave to
appeal this dismissal. On 6 April 2022, the Supreme Court dismissed her
application. On 21 April 2022 Aspen was euthanised in accordance with the court
order.
4. Section
25(1)(b) of the DCA provides that a territorial authority must disqualify a
person from being an owner of a dog if that person is convicted of an offence
(not being an infringement offence) against the DCA. 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 offence.
5. On
27 April 2022 Mrs Johnston was disqualified from owning a dog for a period of
three years. The disqualification applies from 24 May 2020 until 23 May 2023.
Refer Attachment A.
6. The
effect of the disqualification is that Mrs Johnston may not own a dog or be in
possession of a dog at any time during the period of disqualification.
7. On
20 May 2022 Mrs Johnston objected to her disqualification. Refer Attachment B.
Her objection is a repeat of her arguments raised unsuccessfully before court.
She also mentions that she would want to keep a dog for the emotional support
it would give her.
8. The
purpose of disqualifying an offender under the DCA from owning a dog, is to
prevent re-offending by prohibiting the person from owning dogs, and to bring
home to a dog owner the consequences of their failure to comply with their
obligations. This is specifically apt in this case due to Mrs Johnston’s
persistent denial of any liability for the actions of her dog, and her
attribution of blame to others.
9. Section
26 of the DCA provides a right to a disqualified owner to be heard in support
of their objection to the disqualification. The Regulatory Committee must hear
the objection and decide whether -
a) to uphold,
b) bring forward the date
of termination, or
c) immediately terminate
the disqualification.
Ngā tūtohunga
Recommendation/s
That the Regulatory Committee:
a) hear and determine the objection, and
b) uphold the disqualification.
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. 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.
12. 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.
13. 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.
14. 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.
Previous complaints about Aspen
1. Request for Service
(RFS) 8100314123
15. On 29
November 2018 Animal Management received a complaint about Aspen being off
leash on the Waiake Beach Reserve. Refer job sheet 8100314123 filed as
Attachment C.
16. Mrs
Johnston’s response was a denial of any wrongdoing. In an email dated 21
May 2019 (refer Attachment D) she stated that the complainant “made a
false complaint purely on the basis that I got so cross with her overreaction
and tore shreds off her over her stupid claim”. Refer page 8 of
Attachment D.
17. On 11
December 2018 Mrs Johnston was issued with a formal warning.
2. RFS 8100418569
18. On 16 May
2019 Animal Management received a complaint about Aspen being off leash on
Waiake Street on 13 May 2019 and again on 16 May 2019. Refer job sheet
8100418569 filed as Attachment D.
19. Mrs
Johnston denied any wrongdoing and claimed that the complainant was
overreacting. In her email of 21 May 2019 at page 8 of Attachment D, she stated
that the complaint was ridiculous, but conceded that Aspen’s boisterous
reaction could be unnerving.
20. An
infringement notice under section 53(1) of the DCA for Aspen not being under
control on 16 May 2019 was issued to Mrs Johnston. On 19 November 2019, the
case was withdrawn in court because the notice should have been issued under
the Auckland Council Dog Management Bylaw for the dog being off leash in a
public place on 13 May 2019. Refer job sheet 8100418569 filed as Attachment D.
3. RFS 8100418976
21. On 17 May
2019 Animal Management received a complaint about Aspen roaming adjacent to
Manly Esplanade, Browns Bay. The complainant managed to get in touch with Mrs
Johnston and returned Aspen to her.
22. No action
was taken against Mrs Johnston. Refer job sheet 8100418976 filed as Attachment
E.
4. RFS 8100467989
23. On 15
August 2019 Animal Management received a complaint about Aspen having possibly
killed one of the complainant’s chickens. Refer job sheet 8100457989
filed as Attachment F.
24. In her
email of 12 September 2019 at page 8 of Attachment F, Mrs Johnston admitted
that Aspen had been playing off leash at the Waiake Beach that day and that he
had suddenly run off. She explained that this was beyond her control. She
believed that had the complainant kept her chickens in a pen then they would
not have been harmed.
25. Mrs
Johnston was issued with an infringement notice under section 53(1) of the DCA
for failing to control Aspen. Mrs Johnston paid the infringement fee of $200.
5. RFS 8100576029
26. On 14
February 2020 Animal Management received a complaint about Aspen’s
aggressive behaviour to the complainant’s dog at Torbay beach. Refer job
sheet 8100576029 filed as Attachment G.
27. In her
email of 27 February 2020 at page 6 of Attachment G, Mrs Johnston denied the
allegations of aggressive behaviour and insinuated that the complainant was
lying. She blamed the complainant for bringing her dog to the beach and for
being uptight.
28. On 27
February 2020, the investigating animal management officer attended Mrs
Johnston’s property to obtain her signed response to the complaint.
During this time, Aspen left the property and ran up the road. Mrs Johnston
could not voice-control Aspen. The dog was brought under control only after the
officer had coaxed him back.
29. Mrs
Johnston was issued with an infringement notice under section 53(1) of the DCA
for failing to control Aspen on 27 February 2020. Mrs Johnston disputed the
notice and blamed the officer for arriving late thus disrupting her routine to
walk Aspen, and for not preventing Aspen from running away. Refer page 14 of
Attachment G.
30. On 3
November 2020, the District Court found Mrs Johnston guilty of the offence,
fined her $200 and ordered her to pay $30 court costs.
31. Despite
the court’s decision, Mrs Johnston referred to the case as ‘all
crooked and cooked from the beginning”. In her email of 11 November 2020,
she refers to the officer as an ‘accomplished liar’ and that the
officer’s senior ‘conveniently did not remember’ some of the
events. The email is filed as Attachment H.
Prosecution RFS 8100624460 and RFS 8100624746
32. On 24 May
2020 Animal Management received a complaint about Aspen having killed two of
the complainant’s chickens on 23 May 2022. The complainant is the same
person who previously suspected Aspen to have attacked on of her chickens
(refer Attachment F). On 25 May 2020, a further complaint was received about
Aspen having killed a pet guinea pig on 23 May 2020.
33. It is
common cause that Mrs Johnston’s husband had walked Aspen to the beach
from where it had run off. Aspen entered the property of the first complainant
and attacked at least one chicken. Mr Johnston caught up with Aspen and while
he, the complainant and her husband were discussing the incident, Aspen went to
the property next door where it attacked and killed the guinea pig.
District Court case
34. Mr and
Mrs Johnston were prosecuted on two charges under section 57(2) Of the DCA for
the attacks on the chickens and the guinea pig. They were convicted and fined
$750 each. The thrust of their defence was that there was an onus on the
two complainants to keep their chickens and guinea pig confined to the extent
that a dog would not be able to attack them. In relation to the attack on the
guinea pig, they apportioned some blame to the owners of the chickens for
preventing Mr Johnston from gaining control over Aspen before he went to the
neighbouring property.
35. The court
held that the onus is on the owner of a dog to prevent it from attacking other
animals, and not on owners of other animals to prevent a dog from attacking
them. The court did not accept that the perceived failure by the complainants
were exceptional so as not to warrant the destruction of the dog. Having found
that the circumstances of the offending were not exceptional, the court was
obliged to order Aspen’s destruction. A copy of the court’s ruling
is filed as Attachment I.
High Court appeal
36. Mr and
Mrs Johnston appealed their conviction and sentence to the High Court. The crux
of their argument is that for a person to be found guilty under section 57(2)
of the DCA it must be proved that the attack was as a result of the dog
owner’s negligence. On 9 December 2021, the High Court dismissed the
appeal and re-affirmed that section 57(2) offences are strict liability
offences which do not require proof of negligence by the owner of the attacking
dog.
37. The High
Court said of Mrs Johnston’s liability at para [35]:
“There was, for example,
nothing to suggest that she took any steps to explain to her husband that Aspen
had to be kept on a lead and under control at all times. There is nothing to
suggest that she turned her mind to the possibility that Aspen might attack
domestic animals on the day, notwithstanding that the dog had previously been
involved in similar incidents”. A copy of the High Court’s decision
is filed as Attachment J.
Supreme Court application for leave to appeal
38. Mr and
Mrs Johnston applied to the Supreme Court for leave to appeal the dismissal of
their appeal in the High Court. They sought leave to argue that the section
57(2) offence is not a strict liability offence and that mens rea should be
proved before a conviction could be entered.
39. On 6
April 2022, the Supreme Court dismissed their application. A copy of the
Supreme Court’s ruling is filed as Attachment K.
Breach of release conditions
40. On 28 May
2020 Aspen was conditionally released to Mrs Johnston pending the outcome of
the above-mentioned prosecution. One of these conditions was that Aspen was to
remain confined within Mrs Johnston’s property. On 4 June 2020, this
condition was amended to allow Aspen to be daily exercised in public places by
her or her husband between the hours of 9h00 and 14h30. This was on the proviso
that Aspen must be leashed, muzzled and controlled at all times.
41. On 27
October 2020 Mrs Johnston was informed by email about reports of her having
breached the conditions of release:
· She
appeared on the AM Show with an unmuzzled Aspen,
· She
posted a video to Facebook showing her walking Aspen on a beach without him
being muzzled or leashed.
42. Mrs
Johnston was reminded to abide by the release conditions failing which would
result in Aspen being seized and held in retention pending the finalisation of
the prosecution. The email trail is filed as Attachment L.
43. On 4
March 2021 Animal Management received information that Mrs Johnston had been
walking Aspen on Waiake beach on 24 February 2021 without the dog being muzzled
or leashed. Animal Management was provided with a photo of Aspen on the beach
which shows him not leashed, unmuzzled, and not under Mrs Johnston’s
control. On 5 March 2021 Aspen was impounded and retained pending the outcome
of the prosecution. Refer Attachment M.
44. In her
email of 8 March 2021 Mrs Johnston admitted that Aspen was not muzzled. She
explained that Aspen was muzzled and, on a lead, but that she had to remove the
muzzle because Aspen exhibited breathing difficulties. She had intended to put
it back on, but the clip of the lead had come undone, and Aspen managed to run
off. She stated that this was unexpected and beyond her control. Refer
Attachment N
Tātaritanga me ngā
tohutohu
Analysis and advice
45. 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.
46. 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.
47. 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.
48. 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.
49. 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.
50. The
criteria for disqualifying a person form 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
51. It was
decided to disqualify Mrs Johnston from owning dogs to prevent re-offending
which may cause harm and nuisance to people and animals.
52. The
following factors were considered in making this decision:
a) Mrs
Johnston’s repeated disregard of her obligations under the DCA
b) Her
lack of competency in terms of responsible dog ownership
c) Her
persistent denial of liability for her offending under the DCA
d) Her
attribution of blame to others.
53. 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 offence in respect of which Mrs Johnston was disqualified -
Mrs Johnston knew that Aspen had the tendency to suddenly
run off and had previously been involved in chasing chickens. She had mostly
been walking Aspen. Mr Johnston was walking Aspen on the day of the offending.
Mrs Johnston did not consider the possibility that Aspen might attack domestic
animals on that day and did not take any steps to explain to her husband that
Aspen had to be kept on a lead and under control at all times.
b) The competency of Mrs
Johnston in terms of responsible dog ownership -
Mrs Johnston has a lack of understanding
her obligations as a dog owner.
c) Any steps taken by
Mrs Johnston to prevent further offences -
This point is irrelevant because Mrs
Johnston does not own a dog.
d) The matters advanced
in support of the objection -
Mrs
Johnston’s repeat of arguments raised in court is irrelevant and cannot
be
revisited at
this hearing.
She also
mentions that she would want to keep a dog for the emotional support
it would give her. Public safety
should receive preference over an individual’s need for emotional
support.
e) Any other relevant
matters –
Mrs Johnston
may wish to advance relevant matters touching on her dog ownership.
Advice on period of disqualification
54. 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.
55. 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.
56. Applying
these considerations to Mrs Johnston’s case, our advice is that a
disqualification period of three years, calculated from the date of the
offending under section 57(2) of the DCA is appropriate. This is because the
offence involved falls at the mid of the scale of seriousness.
Tauākī whakaaweawe
āhuarangi
Climate impact statement
57. 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
58. 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
59. 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
60. This is a
report about dog ownership which has no impact on Māori.
Ngā ritenga
ā-pūtea
Financial implications
61. 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
62. Mrs
Johnston 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
63. The
Regulatory Committee must give Mrs Johnston written notice of its decision and
the reasons for it as soon as practical.
Ngā tāpirihanga
Attachments
|
No.
|
Title
|
Page
|
|
a⇩
|
Disqualification notice
|
285
|
|
b⇩
|
Objection to disqualification
|
287
|
|
c⇩
|
Request for Service 8100314123
|
291
|
|
d⇩
|
Request for Service 8100418569
|
295
|
|
e⇩
|
Request for Service 8100418976
|
307
|
|
f⇩
|
Request for Service 8100467989
|
309
|
|
g⇩
|
Request for Service 8100576029
|
319
|
|
h⇩
|
Email 11.11.2020
|
335
|
|
i⇩
|
District Court ruling
|
339
|
|
j⇩
|
High court decision
|
345
|
|
k⇩
|
Supreme Court ruling
|
361
|
|
l⇩
|
Warning 27.10.2020
|
365
|
|
m⇩
|
Request for Service 8100797580
|
367
|
|
n⇩
|
Email 8.3.2021
|
373
|
Ngā kaihaina
Signatories
|
Author
|
Chrisna Nortje – Principal Specialist, Animal
Management
|
|
Authorisers
|
Eleanor Waitoa - Manager Animal Management
James Hassall - General Manager, Licensing and
Regulatory Compliance
Craig Hobbs - Director Regulatory Services
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
|
Regulatory
Committee
09 August 2022
|
|
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