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

 

Date:

Time:

Meeting Room:

Venue:

 

Tuesday, 13 September 2022

10.00am

Reception Lounge
Auckland Town Hall
301-305 Queen Street
Auckland

 

Kōmiti Whakahaere ā-Ture /

Regulatory Committee

 

OPEN AGENDA

 

 

 

MEMBERSHIP

 

Chairperson

Cr Linda Cooper, JP

 

Deputy Chairperson

Cr Josephine Bartley

 

Members

Cr Dr Cathy Casey

 

 

Deputy Mayor Cr Bill Cashmore

 

 

Cr Fa’anana Efeso Collins

 

 

Mayor Hon Phil Goff, CNZM, JP

 

 

Cr Shane Henderson

 

 

Cr Daniel Newman, JP

 

 

Cr Sharon Stewart, QSM

 

 

IMSB Chair David Taipari

 

 

IMSB Member Glenn Wilcox

 

 

Cr Paul Young

 

 

(Quorum 5 members)

 

 

 

Sophie White

Kaitohutohu Mana Whakahaere / Governance Advisor

 

8 September 2022

 

Contact Telephone: 021836328

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

Website: www.aucklandcouncil.govt.nz

 

 



Terms of Reference

 

Responsibilities

 

The committee is responsible for regulatory hearings (required by relevant legislation) on behalf of the council.   The committee is responsible for appointing independent commissioners to carry out the council’s functions or delegating the appointment power (as set out in the committee’s policy).  The committee is responsible for regulatory policy and bylaws.  Where the committee’s powers are recommendatory, the committee or the appointee will provide recommendations to the relevant decision-maker.

 

The committee’s key responsibilities include:

 

·         decision-making (including through a hearings process) under the Resource Management Act 1991 and related legislation

·         hearing and determining objections under the Dog Control Act 1996

·         decision-making under the Sale and Supply of Alcohol Act 2012

·         hearing and determining matters regarding drainage and works on private land under the Local Government Act 1974 and Local Government Act 2002 (this cannot be sub-delegated)

·         hearing and determining matters arising under bylaws

·         appointing independent hearings commissioners to a pool of commissioners who will be available to make decisions on matters as directed by the Regulatory Committee

·         deciding who should make a decision on any particular matter including who should sit as hearings commissioners in any particular hearing

·         monitoring the performance of regulatory decision-making

·         where decisions are appealed or where the committee decides that the council itself should appeal a decision, directing the conduct of any such appeals

·         considering and making recommendations to the Governing Body regarding the regulatory and bylaw delegations (including to Local Boards)

·         recommending bylaws to the Governing Body for consultation and adoption

·         reviewing local board and Auckland water organisation proposed bylaws and making recommendations to the Governing Body

·         appointing panels to hear and deliberate on public feedback related to regulatory policy and bylaw matters

·         deciding regulatory policies that are not otherwise the responsibility of another committee

·         deciding regulatory policies, standards and controls associated with bylaws including those delegated to the former Regulatory and Bylaws Committee, under resolution GB/2012/157 (dogs) and GB/2014/121 (alcohol)

·         receiving local board feedback on bylaw and regulatory policy development and review

·         adopting or amending a policy or policies and making any necessary sub-delegations relating to any of the above areas of responsibility to provide guidance and transparency to those involved.

 

Not all decisions under the Resource Management Act 1991 and other enactments require a hearing to be held and the term “decision-making” is used to encompass a range of decision-making processes including through a hearing.  “Decision-making” includes, but is not limited to, decisions in relation to applications for resource consent, plan changes, notices of requirement, objections, existing use right certificates, certificates of compliance, regulatory policy and bylaws and also includes all necessary related decision-making.

 

In adopting a policy or policies and making any sub-delegations, the committee must ensure that it retains oversight of decision-making and that it provides for councillors to be involved in decision-making in appropriate circumstances.


 

For the avoidance of doubt, these delegations confirm the existing delegations (contained in the chief executive’s Delegations Register) to hearings commissioners and staff relating to decision-making under the RMA and other enactments mentioned below but limits those delegations by requiring them to be exercised as directed by the Regulatory Committee.

 

Relevant legislation includes but is not limited to:

 

All Bylaws

Biosecurity Act 1993

Building Act 2004

Dog Control Act 1996

Fencing of Swimming Pools Act 1987

Gambling Act 2003

Health Act 1956

Land Transport Act 1998

Local Government Act 1974

Local Government Act 2002

Local Government (Auckland Council Act) 2009

Maritime Transport Act 1994

Psychoactive Substances Act 2013

Resource Management Act 1991

Sale and Supply of Alcohol Act 2012

Waste Minimisation Act 2008

 

Related Regulations

 

Powers

 

(i)         All powers necessary to perform the committee’s responsibilities.

Except:

(a)        powers that the Governing Body cannot delegate or has retained to itself (section 2)

(b)        where the committee’s responsibility is limited to making a recommendation only.

(ii)        Power to establish subcommittees.

 

Code of conduct

 

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

 

 

 


Exclusion of the public – who needs to leave the meeting

 

Members of the public

 

All members of the public must leave the meeting when the public are excluded unless a resolution is passed permitting a person to remain because their knowledge will assist the meeting.

 

Those who are not members of the public

 

General principles

 

·         Access to confidential information is managed on a “need to know” basis where access to the information is required in order for a person to perform their role.

·         Those who are not members of the meeting (see list below) must leave unless it is necessary for them to remain and hear the debate in order to perform their role.

·         Those who need to be present for one confidential item can remain only for that item and must leave the room for any other confidential items.

·         In any case of doubt, the ruling of the chairperson is final.

 

Members of the meeting

 

·         The members of the meeting remain (all Governing Body members if the meeting is a Governing Body meeting; all members of the committee if the meeting is a committee meeting).

·         However, standing orders require that a councillor who has a pecuniary conflict of interest leave the room.

·         All councillors have the right to attend any meeting of a committee and councillors who are not members of a committee may remain, subject to any limitations in standing orders.

 

Independent Māori Statutory Board

 

·         Members of the Independent Māori Statutory Board who are appointed members of the committee remain.

·         Independent Māori Statutory Board members and staff remain if this is necessary in order for them to perform their role.

 

Staff

 

·         All staff supporting the meeting (administrative, senior management) remain.

·         Other staff who need to because of their role may remain.

 

Local Board members

 

·         Local Board members who need to hear the matter being discussed in order to perform their role may remain.  This will usually be if the matter affects, or is relevant to, a particular Local Board area.

 

Council Controlled Organisations

 

·         Representatives of a Council Controlled Organisation can remain only if required to for discussion of a matter relevant to the Council Controlled Organisation.

 

 


Regulatory Committee

13 September 2022

 

ITEM   TABLE OF CONTENTS                                                                                         PAGE

1          Apologies                                                                                                                        9

2          Declaration of Interest                                                                                                   9

3          Confirmation of Minutes                                                                                               9

4          Petitions                                                                                                                          9  

5          Public Input                                                                                                                    9

6          Local Board Input                                                                                                          9

7          Extraordinary Business                                                                                              10

8          Animal Management Annual Report 2021 - 2022                                                     11

9          Auckland Council Submission on MBIE Consultation on Building Consent System Review                                                                                                                           55

10        Resource Consents Appeals: Status Report 13 September 2022                         95

11        Summary of Regulatory Committee Information - updates, memos and briefings - 13 September 2022                                                                                                         113

12        Objection to proposed stormwater works at 9 Orion Place, Hillcrest                 129

13        Determination of Objection to Nuisance Abatement Notice - David Fenton      151

14        Determination of Objection against Disqualification of Dog Owner by Nicola Brigitta van Lunenburg                                                                                                           247

15        Objection against disqualification of dog owner - Alexandra Johnston            277

16        Consideration of Extraordinary Items

 


1          Apologies

 

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

 

 

2          Declaration of Interest

 

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

 

 

3          Confirmation of Minutes

 

That the Regulatory Committee:

a)         confirm the ordinary minutes of its meeting, held on Tuesday, 9 August 2022, including the confidential section, as a true and correct record.

 

 

4          Petitions

 

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

 

 

5          Public Input

 

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

 

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

 

 

6          Local Board Input

 

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

 

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

 

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

 


 

 

7          Extraordinary Business

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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


Regulatory Committee

13 September 2022

 

Animal Management Annual Report 2021 - 2022

File No.: CP2022/12837

 

  

 

Te take mō te pūrongo

Purpose of the report

1.       To inform the Regulatory Committee about the statutory requirement under Section 10A of the Dog Control Act 1996 (the Act) for each territorial authority to report on its dog control policy and practices and to provide specific statistical information.

2.       To provide an update to all stakeholders on the activities and performance of the Auckland Council Animal Management unit.

Whakarāpopototanga matua

Executive summary

3.       This is the Auckland Council Animal Management annual report on dog control activities during the period of 1 July 2021 to 30 June 2022, as required by section 10A of the Dog Control Act 1996.

Auckland Dog Population

4.       The Auckland region’s known dog population increased this year by 6,464 dogs: from 118,552 the previous year to 125,016 at the end of this financial year – a 5.5% increase. This rise in the dog population continues the upward trend seen in previous years.

5.       There were 113,772 registered dogs in Auckland at the end of June 2022, which is 91% of all known dogs. This is a 3.8% decrease in the compliance rate from the previous year. The unit’s operational focus on registration compliance was significantly reduced during a large part of the year due to the extended lockdown periods in the Auckland region, and only essential services were delivered by our frontline workers during this time.

6.       This reduction in registration compliance may also partly be due to the financial impact of Covid-19, as well as the rising cost of living that has impacted many communities. Many dog owners have also opted to rehome or dispose of their dogs for various reasons, instead of renewing their registration, and may not have notified Auckland Council yet.

Dog Attacks

7.       The total number of dog attacks reported this year increased by 20.3% to 1,906. There were 92 more attacks on people and 230 more attacks on other animals reported this year. Dog attack data indicated a steady downward trend since 2017, but since the start of the Covid-19 pandemic in 2020, attacks started to increase to the current level, which is the highest in five years.

8.       We are currently undertaking extensive analysis to understand the reasons for the increase in dog attacks, including changes in our communities during the last two years. This insight will help inform our strategic planning and targeted initiatives for this financial year and ensure we focus on the most affected communities. The Animal Management Specialists are currently working with a Senior Data Analyst to produce intelligence reports and ‘hotspot’ maps for our field teams.

9.       As a result of these dog attacks, Auckland Council initiated 115 prosecutions during the year against dog owners for serious breaches of the Dog Control Act 1996. Many prosecutions were delayed due to the limited court services during the lockdown periods.

10.     There were four appeals filed in the High Court against destruction orders made in the District Court, but these appeals were all dismissed.

11.     An appeal filed against a dog owner’s conviction and a destruction order made in the District Court was dismissed by the High Court. The dog owner’s subsequent application for leave to further appeal the conviction and destruction order was dismissed by the Supreme Court.

High Risk Dogs

12.     There are currently 5,369 dogs classified as menacing and eight dogs classified as dangerous in Auckland. This is an 11% increase in menacing dogs and a reduction in a third of dangerous dogs.

13.     Auckland Council’s Policy on Dogs 2019 requires all menacing and dangerous dogs living in Auckland to be neutered, even if they were classified by another council and that council did not require the dog to be neutered.

14.     Overall compliance with this neutering requirement for menacing and dangerous dogs is currently at 82.5%, which is 7.3% lower than the previous year. Many dogs that were classified as menacing could not be desexed during the lockdown periods due to the unavailability of veterinary services.

15.     Animal Management teams are currently focusing on achieving a higher rate of compliance with these high-risk dogs. We are also taking part in a dog bite prevention programme led by Middlemore Hospital, which will provide exciting opportunities to collaborate with specialists from the medical field and other experts on ways to reduce the harm caused by dogs.

Field Services

16.     The field officer teams responded to 24,841 requests for service during the year, which are 318 more requests than the previous year. This is a significant effort from our field officers, in light of the added difficulty in delivering these services during the period of more than three months that Auckland remained in Alert Level 3, before moving to the COVID-19 Protection Framework.

17.     During this period, field officers assisted the animal shelters to return as many dogs to their owners as possible, due to the shelters being closed to the general public. Officers also had to clean and sanitise their vehicles and equipment after every interaction with a confirmed Covid-positive household.

18.     Mandatory isolation for any officers who tested positive for Covid-19, or had members in their family who tested positive, severely impacted on our staffing levels. As a result, the enforcement of lower-level offences, like reported breaches of the Dog Management Bylaw 2019, were temporarily suspended during the year.

19.     A total of 3,766 proactive patrols, property visits, and registration checks were done during the year.

20.     Roaming or uncontrolled dogs still account for the highest number of service requests received by the field teams, and officers responded to 8,461 reported incidents of roaming dogs, a further 1,906 incidents of dogs behaving aggressively by rushing at people, animals, or vehicles, and 4,238 requests to collect a dog that was found roaming by a member of the public or was relinquished to the council by its owner.

21.     Field officers further responded to 751 incidents of stock roaming or straying on public roads, and 31 incidents of animals at large on the Auckland motorway network.

22.     Barking complaints reduced significantly during this year, mostly due to the fantastic efforts of a dedicated team of barking investigators, and also due to more people staying home or working from home. The Barking and Field team actioned 5,372 complaints about nuisance barking, with a further 146 escalated complaints actioned by the other field teams.

23.     The success of this team has contributed to a steep decline in nuisance barking complaints over the last five years. Even though the Auckland population increased significantly, the number of repeat complaints about nuisance barking were reduced by nearly 68%, which means that more complaints are resolved before the issues escalate.

24.     Field officers on Great Barrier Island are currently assisting with barking complaints from across the Auckland region.

25.     Unfortunately, Animal Management field and shelter staff have experienced increased levels of violence and aggression from members of the public, with reported incidents of abuse increasing by 77% from the previous year.

26.     We are currently reviewing our operational processes and practices, especially when dealing with high-risk people and animals, to further improve the health, safety, and wellbeing of all our staff.

Shelter Services

27.     A total of 5,012 dogs were impounded this year in the three Auckland animal shelters. This is a decrease of 4.1% from the previous year, which can mostly be attributed to the return of many dogs to their owners before they entered the shelters.

28.     Of these impounded dogs, 3,205 (63.9%) were claimed by their owners, which is 7.4% lower than the year before. The shelters also experienced an increase in the number of dogs relinquished by their owners, which caused the shelters to run near full capacity towards the end of the financial year.

29.     A large adoption campaign was launched to raise awareness of the dogs in the shelters that were available for adoption, and this was extensively covered by the mainstream media, radio broadcasters, and other online platforms. The success of this campaign will be reviewed in the coming months, while further initiatives to improve the adoption rate are currently being rolled out by the shelter teams.

30.     A total of 335 dogs were adopted from our shelters or transferred to rescue organisations, which is 2.1% higher than the previous year.

31.     There was a 5% increase in the total number of dogs euthanised at the three shelters.  This is due to the increased number of dogs impounded for attacking people or animals and were not claimed by their owners. Most of these dogs were not suitable for rehoming.

32.     The increase in the number of dogs euthanised can also be attributed to the shelters experiencing a large influx of new-born puppies and pregnant dogs, with many litters delivered inside the shelters. Unfortunately, many of these puppies were very ill or infected with parvovirus, which led to an increase in dogs euthanised due to health reasons.

33.     There was a significant reduction in the number of dogs euthanised that were classified as menacing, which indicates an increase in compliance by owners of these high-risk dogs.

Other Specialist Services

34.     The Animal Management Specialists completed several new technology projects during the year, including the roll-out of new communication devices to our field staff. The new digital radio devices and online monitoring system will provide enhanced communication between our field officers and the various dispatch teams.

35.     The new technology is also a significant cost-saving initiative for the unit. In addition, field staff were issued with new mobile devices to improve their efficiency while out in the field, and these devices will now allow them to record statements and customer signatures in digital format.

Supporting the Community and Other Agencies

36.     The field teams worked together with officials from Managed Isolation and Quarantine (MIQ), SPCA, and Civil Defence to collect animals from families that were admitted to MIQ during the level 4 and 3 lockdown periods, and the West field team also provided a great response in dealing with dislodged animals during the extreme weather and flooding events in West Auckland in 2021.

37.     Animal Management staff collaborated with staff from the Natural Environment Specialist Services unit to raise awareness about vulnerable shorebirds in the Auckland region, and the impact that uncontrolled dogs have on these protected bird species.

38.     The unit also assisted with a review of Contact Centre processes to streamline the handling of welfare-related calls between Auckland Council and SPCA Contact Centres, to avoid customers experiencing delays when reporting issues with animals in distress.

39.     The Animal Shelters are further supporting the excellent work being done by Pet Refuge, which is an organisation that provides a safe place for animals while their owners escape domestic violence. The Auckland animal shelters provided temporary housing for 15 dogs from Pet Refuge since an MOU was signed between the organisations.

Education

40.     The unit’s education and dog safety awareness programmes were very limited during the year due to restrictions on indoor gatherings, as well as the need to minimise social contact with larger groups of people. Many planned events were cancelled, but presentations were still delivered to agencies like Oranga Tamariki Homai and the Ministry of Justice.

41.     Outdoor community events were also attended where possible to raise public awareness of responsible dog ownership and safety around dogs, as well as to find suitable homes for some of the dogs available for adoption from our shelters.

42.     The teams are looking forward to more planned events in the new year to get out in the community and show them the great work being done by the different Animal Management teams.

Ongoing Work and Projects

43.     The Animal Management Team is focused on delivering on the outcome of our strategy - Kōkiri Whakamua, by reducing risk and harm and keeping our communities safe.  The key areas will include dog bite prevention and to obtain a significant reduction in attack incidents and harm caused by dogs.

44.     Animal Management staff are still assisting with the Kurī Mahi Aunoa project, which has resulted in automated dog registrations and an improved dog owners experience when they engage with Auckland Council.

45.     Shelter security upgrade projects are nearing completion, and this will provide a safer environment for the shelter staff and the animals in their care.

46.     Animal Management is confident that the new financial year will bring exciting new opportunities to deliver a great service to all Aucklanders and to make Auckland safer for all our people, visitors, and animals.

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a)      receive the Animal Management Annual Report 2021 - 2022.

b)      note that the Animal Management Annual Report is required under Section 10A of the Dog Control Act 1996, and that the report will be published on the Auckland Council website, and a link to the report forwarded to the Department of Internal Affairs.


 

 

Horopaki

Context

47.     The objective of Animal Management is to keep dogs as a positive part of the life of Aucklanders by:

·    maintaining opportunities for owners to take their dogs into public places,

·    adopting measures to minimise the problems caused by dogs, and

·    protecting dogs from harm and ensuring their welfare.

Tātaritanga me ngā tohutohu

Analysis and advice

48.     Section 10A of the Dog Control Act 1996 (the Act) requires each territorial authority to report on its dog control policy and practices and to provide specific statistical information.

49.     This report acts as a medium for this statutory requirement, and to provide an update to all stakeholders on the activities and performance of the Auckland Council Animal Management unit.

Tauākī whakaaweawe āhuarangi

Climate impact statement

50.     There is no climate impact arising from the Animal Management Annual Report 2021 – 2022.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

51.     There are no council group impacts arising from the Animal Management Annual Report 2021 – 2022.

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

Local impacts and local board views

52.     There are no local board impacts associated with the Animal Management Annual Report 2021 – 2022.

Tauākī whakaaweawe Māori

Māori impact statement

53.     Although our ability to deliver services around the maunga was impacted by Covid-19, the team did some great work alongside Tūpuna Maunga o Tāmaki Makaurau Authority (TMA) during the latter part of 2021, in an effort to reduce dog-related harm and nuisance on the 14 maunga across the region.

54.     The Central field team created a new roster specifically to facilitate additional patrols around the maunga, and also arranged a hui with the TMA staff to further discuss ways that Animal Management can assist with the protection of these precious taonga.

Ngā ritenga ā-pūtea

Financial implications

55.     There are no financial impacts resulting from the Animal Management Annual Report 2021 – 2022. This report has been reviewed by the Senior Finance Business Partner for Regulatory Services.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

56.     There are no risks or mitigations associated with the Animal Management Annual Report 2021 – 2022.

Ngā koringa ā-muri

Next steps

57.     That the Animal Management Annual Report 2021 – 2022 is received by the committee. Then the report will be published on the Auckland Council website and a link to the report will be forwarded to the Department of Internal Affairs.

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Animal Management Annual Report 2021 - 2022

17

      

Ngā kaihaina

Signatories

Author

Christo van der Merwe, Principal Specialist Animal Management

Authorisers

Eleanor Waitoa, Manager Animal Management

Mervyn Chetty - Acting General Manager, Licensing and Regulatory Compliance

Craig Hobbs - Director Regulatory Services

 


Regulatory Committee

13 September 2022

 

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Regulatory Committee

13 September 2022

 

Auckland Council Submission on MBIE Consultation on Building Consent System Review

File No.: CP2022/13307

 

  

 

Te take mō te pūrongo

Purpose of the report

1.       The Ministry of Business, Innovation & Employment (MBIE) has sought public feedback on the scope of their Building Consent System Review. Their submission window commenced on the 21st July 2022 and was set to close on the 4th September 2022. 

2.       This report informs the committee on the content of the submission made on behalf of Auckland Council and its CCOs by the Building Consents Department.

Whakarāpopototanga matua

Executive summary

3.       The submission captures the perspectives of Auckland Council as a regulator, infrastructure provider, and a strategic planner (with focuses on Te Ao Māori, environmental protection and sustainability).

4.       Due to the limited submission window, it was not possible to obtain Regulatory Committee input. However, consistent with established protocol, we obtained approval from Councillor Linda Cooper in her capacity as chair of this Committee.

5.       The Regulatory Committee will recognise key features of this feedback as matters we have been advocating for many years. In the feedback, it has been highlighted that:

·   the primary focus of the building consent system should be to ensure New Zealand’s built environment is safe, durable, and supportive of people’s daily lives.

·   government has a responsibility to develop and maintain a regulatory framework with checks and balances, such as an ongoing prioritised program of building code clause reviews for the building and construction industry.

·   caution needs to be exercised regarding the consolidation of building consenting functions. Auckland Council would be unlikely to support this consideration unless the benefits outweigh the costs and risks involved.

·   change is required to more fairly distribute liability across involved parties throughout the building design-construction system.

·   the present state of the system relies too heavily on Building Consent Authorities (BCAs) to provide robust regulatory oversight over many consent applicants and their professional agents without necessarily having the level of authority and resourcing to be truly effective.

·   it is our expectation that MBIE directly engage with mana whenua and mātāwaka to understand the cultural values and perspectives needed for consideration in the consent application review process. We consider that the Building Act 2004, and the NZ Building Code are not culturally adaptive, and system changes are needed to simplify building for marae, papakāinga or pakihi Māori, especially on whenua Māori (Māori land).

·   the current consenting system is not sufficiently responsive to changes in technology and modern methods of construction, nor effective in responding to risks identified by BCAs to the industry and the public at large.

·   There are opportunities for better data management to improve decision making. The development of suitable data standards and the likes of modern ‘digital twin’ type systems could significantly enhance industry performance and regulatory capabilities.

·   rapid access to information for planning and decision making has never been more important. We continue to recommend that government develops its research capabilities to enhance regulatory management and broader industry performance.

·   it would be worth incorporating greater consideration of the broader issues concerning climate change and environmental matters into subsequent detailed work on the reform.

·   government could establish a framework to monitor the state of the built environment from design and construction, through to building end-of-life. This would help to better meet environmental objectives and waste minimisation targets.

 

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a)      receive and note the content on the submission as provided in the attached document.

 

Horopaki

Context

6.       On the 21st of July 2022, MBIE opened consultation as the first step in a system-wide review of the building consent system, with the due date for submissions being specified at no later than 5pm on the 4th of September 2022.

Tātaritanga me ngā tohutohu

Analysis and advice

7.       Divisional managers and selected departmental managers and technical specialists from across the Auckland Council family were contacted to provide opportunity for their input on this submission. Internal input from the following sources has been received and included from Regulatory Services, Healthy Waters, Waste Solutions, the Māori Outcomes Unit, the Chief Sustainability Office, the Independent Māori Statutory Board, Auckland Transport and Watercare.

Tauākī whakaaweawe āhuarangi

Climate impact statement

8.       As part of the internal consultation, Watercare, Healthy Waters, the Chief Sustainability Office, and Waste Solutions provided input related to the management of climate change related risks. This input has been woven into the answers submitted to MBIE on a range of their questions.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

9.       This consultation from MBIE is only the first step in a system-wide review. Given that the questions asked were fairly broad in most cases, it is too early to assess and understand how the Ministry’s work will progress and what the impacts on Auckland Council and its CCOs might be.

10.     Despite the short timeframe for pulling together a submission, we committed to doing as much as we could to engage with our colleagues across the wider organisation as swiftly as possible, as the resulting changes from the building consent system review may eventually have impacts across the breadth of our operations. It is the intent of the Building Consents department to continue to collaborate with those that provided input into this submission in any subsequent rounds of engagement with MBIE, as well as those that did not have the time or opportunity at this first stage.

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

Local impacts and local board views

11.     Due to the short timeframe for a submission to be formed and submitted, local board views were not able to be captured in this round of consultation. Following this stage however, we will seek local board perspectives to further inform any subsequent discussions we have with MBIE.

Tauākī whakaaweawe Māori

Māori impact statement

12.     Engagement with our Māori Outcomes team and IMSB representatives was sought as early as possible to ensure we were able to incorporate their perspectives into this submission. Feedback was swift and informative, and we aim to build further on what was received to ensure it is a core component of our ongoing advocacy efforts with MBIE.

Ngā ritenga ā-pūtea

Financial implications

13.     There has been no direct expenditure associated with the compilation of this submission.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

14.     The building consent system inherently requires that building officials, and other regulatory staff, at times undertake compliance actions where others have failed to discharge their obligations. This perspective is reflected in the submission.

15.     The scope of MBIE’s review and consultation is broad. We recognise that there is significant diversity of opinion with regards the performance of building consent system, the wider construction industry and its participants. As a result, it is likely that some of the views shared will be critical of the roles played by various segments, including Auckland Council’s.

16.     As always, we will be in a position to advocate for what we, as an organisation, believe is important, and if required justify our performance in any forum.   

Ngā koringa ā-muri

Next steps

17.     Auckland Council staff from the Building Consents department and others involved in this submission will actively engage in future opportunities to engage with and provide feedback to MBIE as the review of the Building Consent System progresses.

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

MBIE Building Consent System Review - Auckland Council Submission - 1 September 2022

59

     

Ngā kaihaina

Signatories

Author

Patrick Cummuskey - Technical Advisor

Authorisers

Ian McCormick - Manager Building Control

Craig Hobbs - Director Regulatory Services

 

 


Regulatory Committee

13 September 2022

 

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Regulatory Committee

13 September 2022

 

Resource Consents Appeals: Status Report 13 September 2022

File No.: CP2022/13038

 

  

 

Te take mō te pūrongo

Purpose of the report

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

Whakarāpopototanga matua

Executive summary

2.       This memorandum provides a summary of current resource consent appeals to which the Auckland Council is a party. It updates the report to the Regulatory Committee on 20 June 2022.

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

 

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a)      receive the Resource Consents Appeals: Status Report 13 September 2022

 

Horopaki

Context

4.       As at 30 August 2022, there are 29 resource consent appeals to which Auckland Council is a party. These are grouped by Local Board Area geographically from north to south, as set out in Attachment A.  Changes since the last report and new appeals received are shown in bold italic text.

5.       The principal specialist planners - resource consents, continue to resolve these appeals expeditiously. In the period since preparing the previous status report on 20 June 2022, there has been one new appeal lodged and two resolved.

6.       The appeal by 69 Roberta Avenue Limited is to a decision by council’s independent commissioners to refuse applications for the construction of 17 dwellings and freehold subdivision to create titles for each dwelling. The new dwellings are in the form of four terraced housing blocks being a mixture of two and three storeys. Associated works includes the demolition of the existing dwellings, vegetation clearance, earthworks and retaining walls, the construction of access, parking and drainage infrastructure, and landscape treatment. A jointly owned access lot for the shared driveway that serves a combined parking area is in addition to the 17 freehold residential lots around the dwellings.  

7.       In refusing consent the commissioners were not satisfied that the proposal was in keeping with the neighbourhood character and the planned outcome of the Residential - Mixed Housing Suburban Zone and found that adverse effects will be created on the neighbourhood. A number of submitters may seek to become Section 274 parties to the appeal.

Tātaritanga me ngā tohutohu

Analysis and advice

8.       To receive the report as provided.

Tauākī whakaaweawe āhuarangi

Climate impact statement

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

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

10.     Not applicable.

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

Local impacts and local board views

11.     Not applicable.

Tauākī whakaaweawe Māori

Māori impact statement

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

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

Ngā ritenga ā-pūtea

Financial implications

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

14.     Not applicable.

Ngā koringa ā-muri

Next steps

15.     Not applicable.

 


 

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Current Resource Consent Appeals as at 30 August 2022

99

     

Ngā kaihaina

Signatories

Author

Robert Andrews - Principal Specialist Planning

Authorisers

Ian Smallburn - General Manager Resource Consents

Craig Hobbs - Director Regulatory Services

 

 


Regulatory Committee

13 September 2022

 

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Regulatory Committee

13 September 2022

 

Summary of Regulatory Committee Information - updates, memos and briefings - 13 September 2022

File No.: CP2022/12301

 

  

 

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

08/08/2022

Appointment of panel members to the National Policy Statement – Urban Development plan changes Independent Hearing Panel

 

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

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

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

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

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

 

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a)      tuhi ā-taipitopito / note the progress on the forward work programme appended as Attachment A of the agenda report.

b)      whiwhi / receive the summary of Regulatory Committee report 13 September 2022.

 


 

 

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Regulatory Committee Forward Work Programme

115

b

Appointment of panel members to the National Policy Statement – Urban Development plan changes Independent Hearing Panel

127

     

Ngā kaihaina

Signatories

Author

Sophie White - Kaitohutohu Mana Whakahaere / Governance Advisor

Authoriser

Craig Hobbs - Director Regulatory Services

 

 


Regulatory Committee

13 September 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

 

 

 

 

 

 

 

 

 

 

 

 

 

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.

 

 

 

 

 

 

 

 

 

 

 

Cemeteries and Crematoria Bylaw Control

Community and Social Policy

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

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

First report scheduled for mid-2023.

 

 

 

 

 

 

 

 

 

 

 

Health and Hygiene Bylaw Control

Community and Social Policy

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

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

First report scheduled for mid-2023.

 

 

 

 

 

 

 

 

 

 

 

Signage at off-licence premises

Community and Social Policy

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

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

 

 

 

 

 

 

 

 

 

 

 

Traffic Bylaw Review

Community and Social Policy

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

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

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

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

 

 

 

 

 

 

 

 

 

 

 

 

 


 

 

Completed

 

Lead Department

Area of work

Committee role

(decision and/or direction)

Decision

 

Community & Social Policy

Alcohol Control Bylaw review

This Bylaw provides the structure for creating alcohol bans. Individual boards use it to make decisions about local bans.

Council has a statutory obligation to review this Bylaw under the Local Government Act 2002.

Recommend a Statement of Proposal to the Governing Body to amend bylaw.

Appoint Bylaw Panel to make recommendations to the Governing Body on the proposal after hearing and deliberating on public feedback and local board input.

Development of proposal to amend bylaw to commence in February 2020.

Finding Report 11 April 2019
Link to decision

Options Report 9 May 2019
Link to decision

Recommendation for Statement of Proposal 1 September 2020
Link to decision

Adopt Statement of Proposal – Governing Body 29 October 2020
Link to decision

 

Licensing & Regulatory Compliance

Animal Management

Report on Animal Management activities for the year ending August/Sept 2020 as required by s10a of the Dog Control Act 1996

Note: that the Animal Management Annual Report is required under Section 10A of the Dog Control Act 1996 and staff will provide the 2019/2020 report to the Secretary of Local Government

Adopt the 2019/2020 Animal Management Annual Report

Link to decision

Link to 2019/2020 Animal Management Annual Report

 

 

Community and Social Policy

Bylaw Review 2020-22 initiation

Initiation of new bylaw reviews. Includes ‘Local Board Involvement in Regional Policy, Plans and Bylaws - Agreed Principles and Processes 2019’

Council has a statutory obligation to periodically review its bylaws.

Decision on the initiation of bylaw reviews that must be completed by October 2022. Report will for each bylaw:

·    set out scope

·    legislative constraints/enablers (if any)

·    relevance to LBs

·    proposed process (including LB involvement)

·    key timeframes

·    public consultation approach

whether a joint working group for early bylaw/policy development is proposed and initiate appointment process if necessary.

Initiation Report 18 February 2020
Link to decision

 

Community and Social Policy

Cemeteries Bylaw Review (Cemeteries and Crematoria Bylaw 2014)

This Bylaw and code of practice protects health and safety and minimises potential offensive behaviour.

Council has a statutory obligation to review this Bylaw under the Local Government Act 2002.

Recommend a Statement of Proposal to the Governing Body to amend bylaw.

Appoint Bylaw Panel to make recommendations to the Governing Body on the proposal after hearing and deliberating on public feedback and local board input.

Development of proposal to amend bylaw to commence in February 2020.

Options Report 9 April 2019
Link to decision

Direction Report 9 May 2019
Link to decision

Proposal to amend 1 September 2020
Link to decision

Adopt Statement of Proposal – Governing Body 24 September 2020
Link to decision

Adopt the amended Cemeteries and Crematoria Bylaw 2014

link to decision

 

Building Consents

Earthquake Prone, Dangerous & Insanitary Buildings Policy 2011 -2016 Review

2011 - Auckland Council was required under s131 of the Building Act 2004 to adopt a policy on earthquake prone, dangerous and insanitary buildings

2018 – Due to the Building (Earthquake-Prone Buildings) Amendment Act 2016, Auckland Council’s management of earthquake-prone buildings now falls under the national policy and methodology set by MBIE. Our ongoing work programme for issuing statutory EPB notices, receiving seismic assessments, and identifying residual potential EPBs is being carried out on this basis.

Note that dangerous and insanitary buildings continue to have their own local policy that is now under the management of Regulatory Compliance.

Update:  on the progress made in implementing Auckland Council’s regulatory obligations with regard to earthquake-prone buildings within its jurisdiction.

Approve submission 28 July 2020
Link to decision

 

Community and Social Policy

Food Bylaw Review

Appoint Bylaw Panel

Decision on bylaw - Due to COVID-19 the decision went to the Governing Body

Adoption 30 April 2020
Link to decision

 

Community and Social Policy

Freedom Camping

This Bylaw replaces legacy requirements to manage freedom camping in vehicles, under the Freedom Camping Act.

The legacy bylaws expiry on 29 October 2022.

Decision on options to progress a council approach for a Statement of Proposal on freedom camping in vehicles.

Deferred to Governing Body

 

Community and Social Policy

Gambling Policy Reviews

The Gambling Act 2003 and the Racing Act 2003 (the Acts) regulate gambling in New Zealand.  The Acts require the policies to be reviewed every three years. Auckland Council (Council) first adopted these policies in 2013.

Council reviewed them in 2017, found they were generally effective and retained both with no changes.

 

Decision: start of the Class 4 Gambling (pokie) Venue Policy and the Racing Board (TAB) Venue Policy reviews in 2020

Council reviewed in 2020, retain both with no changes.

start policy reviews 17 March 2020
Link to decision

findings review 13 October 2020

Link to decision

 

Community and Social Policy

Navigation Safety Bylaw Review

This Bylaw sets out the rules for all vessels and people using Auckland's waters to ensure their safety.

Council has a statutory obligation to review this Bylaw under the Local Government Act 2002.

Decision on whether a bylaw still needed and whether any changes should be made and to confirm, amend, replace or revoke the bylaw (findings and options reports).

Findings Report 17 March 2020
Link to decision

Options Report 23 June 2020
Link to decision

Recommend statement of proposal 13 October 2020

link to decision

Adopt statement of proposal – Governing Body – 29 October 2020
Link to decision

 

Community and Social Policy

Outdoor Fire Safety Bylaw Review

This Bylaw applies to a range of outdoor fire activities, including outdoor cooking and heating fires, sky lanterns, traditional cooking fires, open air fires and incinerator fires.

This Bylaw expires on 18 December 2021 and must (if necessary) be replaced to avoid a regulatory gap.

Findings resulted in decision to revoke bylaw

Decision on whether a bylaw is still needed and whether any changes should be made and to confirm, amend, replace or revoke the bylaw (findings and options reports).

Findings and Options Report 13 October 2020
Link to decision

Review findings – Governing Body – 29 October 2020
Link to decision

 

Democracy Services

The Regulatory Committee Policy

The Policy incorporates the operational policy and sub delegations for the decision-making responsibilities that lie within the areas of the committee’s responsibilities.

Review District Licensing Committee (DLC) and Independent Resource Management Act (RMA) commissioner pools.

Decision: adopt the updated Regulatory Committee Policy

Decision: approve the appointment of the District Licensing Committee and the selection process and appointments of independent resource management commissioners for 2021 to 2024.

Recruitment process for DLC Commissioners 12 November 2019 – Governing Body
Link to decision

30 April 2020, due to COVID19 appointment of District Licensing Committee went go to Emergency Committee
Link to decision

Appointment of DLC Committee 30 April 2020
Link to decision

Approval to commence recruitment RMA Commissioners 23 June 2020
Link to decision

Adoption of the Regulatory Committee policy 28 July 2020
Link to decision

Recommendation for the appointment of independent hearings commissioners
Link to decision

 

Watercare / Community and Social Policy

Water Supply and Wastewater Network Bylaw 2015

This bylaw protects Auckland’s water sources, water supply and wastewater networks from damage, misuse and interference.

This Bylaw will expire on 25 June 2022 and council must (if a bylaw is still necessary) make a new bylaw to avoid a regulatory gap

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

May 2020, due to COVID-19 findings report went to Emergency Committee

Findings Report 28 May 2020-Emergency Committee
Link to decision

Review Options 23 June 2020
Link to decision

Recommendation for Statement of Proposal 16 February 2021

Link to decision

Adopt Statement of Proposal – Governing Body – 25 February 2021

Link to decision

 

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

 

 

Community and Social Policy

 

Bylaw project initiation report

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.

Progress to Date:

Decision Report 8 March 2022

Link to decision

 

Community and Social Policy

Air Quality Bylaw for Indoor Domestic Fires

 

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.

Progress to Date:

Decision Report 8 August 2022

Link to decision

 

Community and Social Policy

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

 

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.

Progress to Date:

Decision Report 8 August 2022

Link to decision

 

 

 

 

 

ü

 

 

 

 

 

 



Regulatory Committee

13 September 2022

 

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Regulatory Committee

13 September 2022

 

Objection to proposed stormwater works at 9 Orion Place, Hillcrest

File No.: CP2022/13315

 

  

 

Te take mō te pūrongo

Purpose of the report

1.       To hear and determine the proposed private stormwater connection works at 9 Orion Place, Hillcrest pursuant to section 460 of the Local Government Act 1974 (LGA74).

Whakarāpopototanga matua

Executive summary

2.       This report recommends that the Regulatory Committee endorse the proposed private stormwater connection works at 9 Orion Place, Hillcrest (Third-Party Land) to manage the stormwater effects at 3 Orion Place, Hillcrest (Property).

3.       The owners of the Property (Owners) allege that the Council is responsible for their property never having a private stormwater connection.  Without any admission of liability, the Council and the Owners entered into the 15 December 2021 Stormwater Agreement (the Agreement) whereby the Council agree to consider the use of section 460 of the LGA74 to authorise the construction of the private stormwater pipe.   

4.       The proposed works involve the construction of a 7 metre long, 150mm wide pipe, from the Property to a manhole located in the Third-Party Land.  This is illustrated in Map A of the 8 September 2021 Strategic Assessment (Attachment A).  

5.       The owner of 9 Orion Place, Hillcrest (Affected Owner) has not agreed to allow to either the Owners or the Council access to the Third-Party Land for this purpose. Council-led efforts to facilitate an agreement between the parties have been unsuccessful. 

6.       After undertaking a site inspection and considering alternative options for the pipe, the Council has determined that the works are the only practicable option for servicing the Property.  On 26 August 2022, Healthy Waters served the appropriate statutory notice under section 460 of the LGA74 (the Notice) on the Affected Owner informing him of Council’s intention to construct the works. A copy of that Notice is provided as Attachment D.

7.       Where the Council applies for a resolution under section 460 of the LGA74 to construct a private pipe on third-party land, it must give the owner of the third-party land the opportunity to be heard at the committee meeting determining the application.  In this case, the Affected Owner has not lodged formal objection to the works but has emailed Healthy Waters staff to say that they do not agree to the works being undertaken (Email Response to Notice).  A copy of that email is provided as Attachment B.

8.       If the Regulatory Committee determines that the proposed works are the “only practicable route”, it may pass the resolution authorising the works.  The work is estimated to take up to 5 days. Once constructed, this pipe will remain in private ownership.

9.       The Affected Owner has been advised, and will be further advised, that they have the right to claim injurious affection (if established) under the Public Works Act 1981.

 

 

 

 

 

 

 

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

a)      consider the application by the Council, and any objection by the Affected Owner, to construct a private stormwater pipe at 9 Orion Place, Hillcrest undersection 460(2) of the LGA74;

b)      determine that the only practical route for the new private stormwater connection for 3 Orion Place, Hillcrest to connect to the public stormwater network is through the adjoining property at 9 Orion Place, Hillcrest; and

c)      resolve that the Council proceed with the construction of the private stormwater connection from 3 Orion Place, Hillcrest to the public stormwater network in 9 Orion Place, Hillcrest, according to Section 460(1) of the LGA74.

 

Horopaki

Context

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

11.     Healthy Waters runs an “access to property” workstream to assist Council family project managers (Healthy Waters, Watercare Services Limited and Auckland Transport) to access third-party land for the purposes of constructing or maintaining public and private three waters assets. Healthy Waters also provides this service to external customers (for example, developers and community members) on a cost-recovery basis in order to ensure that optimal three waters outcomes are achieved (rather than work-arounds or network duplications).  

12.     This workstream also contributes to the delivery of consented housing developments which are stalled due to an inability for developers to access the public three waters networks located on third-party properties.  

Tātaritanga me ngā tohutohu

Analysis and advice

13.     The Owners of the Property seek a private stormwater connection to the public stormwater network (a 900mm diameter pipe) at the neighbouring property of 9 Orion Place.  

14.     The Owners also allege that the Council should have connected the Property to the public stormwater pipe in 1966 when the pipe was constructed by the Council.  Council staff are unaware of the particular circumstances around the construction of this pipe in 1966 but are aware that sometimes councils would only provide private connections if the owners of the properties agreed to make a financial contribution to the costs.  Staff do not consider that the Council has any legal obligations to the Owner to make the stormwater connection requested.

15.     However, Council staff have considered the Owner’s circumstances and agree that it is an optimal outcome for the Property, which does not currently have a stormwater discharge, to connect to the public pipe.  As a result, the Council and the Owner entered into the Agreement whereby the Council agreed to undertake, at no cost to the Owners, the legal process under section 460 of the LGA74 to seek statutory authorisation to construct a private stormwater drain from the Property to the public stormwater network at the Third-Party Land subject to the conditions set out in the Schedule to the Agreement.  The Owners acknowledge that the Council, having commenced the Process, cannot guarantee how that Process might ultimately be determined.   

16.     The statutory basis for connecting private pipes to the public stormwater network on third-party land is set out in section 460 of the LGA74. The section states:

460 Construction of private drains through adjoining premises

(1) Where, in the opinion of the council, the only practical route of any new private drain is through 1 or more adjoining premises, and any owner or owners of any of those premises will not consent to its construction, the council may, pursuant to a resolution in that behalf, of which notice shall be given to the owner or owners withholding his or their consent as aforesaid, enter upon his or their premises and execute, provide, and do all or any of the works, materials, and things which the council considers necessary, in order that the drain shall be laid in an efficient manner.

(2) Before passing a resolution under subsection (1), the council shall give to every owner refusing his consent as aforesaid an opportunity to be heard before a committee of the council.

(3) The cost incurred by the council in carrying out the said work, including the payment of compensation for injurious affection to any premises through which the drain is laid, shall be payable by the council in the first instance, and may be recovered by it from the owner of the land to be served by the private drain; and section 465 shall apply with respect to the amount so recoverable as if it were an advance made by the council under section 463.

(4) If agreement cannot be reached between the council and any claimant for any such injurious affection, the matter shall be determined as if the work were a public work and the claim were a claim for injurious affection in respect thereof under the Public Works Act 1981.

17.     The key issue to be determined by the Committee is whether the proposed private pipe is located on the “only practical route” for servicing the Property.  If this is established, the Committee may pass a resolution authorising the Council to construct the private pipe at the Owner’s cost.  

18.     On 26 August 2022, Healthy Waters served the Notice on the Affected Owners by way of email and courier (physical letter arrived on 29 August 2022).  Having served the Notice, the Council must now hold a hearing to consider and make a decision on the application. Affected Owners have a right to be heard at this hearing (and do not need to have made a formal objection prior to the hearing).

Enabling stormwater management on 3 Orion Place, Hillcrest

19.     As part the Council’s Agreement with the Owners, the Council agreed to undertake, at no cost to the Owners, the legal process under section 460 LGA74 to seek statutory authorisation to construct a private stormwater drain from the Property to the public stormwater network at the Third-Party Land, subject to the conditions set out in the Schedule to the Agreement.

20.     Before taking this step, the Council attempted to engage with the Affected Owner with the intention of facilitating a negotiated outcome acceptable to all parties.  The Council’s engagement formally commenced on 9 March 2022 and went through until 12 April 2022.  However, the Affected Owner did not wish to engage with the Council and reiterated that access to his property would not be granted. We also emailed on 2 May 2022 but the Affected Owner did not respond. 

21.     Once it was clear that the Affected Owners would not provide consent for the pipe, our Operations North Team Manager, Frank Tian; with support from Healthy Waters Specialist, Adrian Kooiman, visited the properties and undertook an options assessment. This options assessment was called a Strategic Assessment and is attached as Attachment A.  The Strategic Assessment confirmed that the only practicable route to connect the Property to the public stormwater network was a private connection through the property at 9 Orion Place. 

22.     The proposed works involve the construction of a 7 metre long, 150mm wide pipe, from the Property to a manhole located in the Third-Party Land.  This is illustrated in Map A of the 8 September 2021 Strategic Assessment (Attachment A).  

23.     It is proposed that the pipe will be installed through open trenching. The works will take approximately 5 days to complete. Once constructed, this pipe will remain in private ownership, pursuant to the Council’s Stormwater Code of Practice, because the pipe connection would only serve one property.

Negotiating with the landowners 

24.     We understand that the Owners attempted to obtain access to the Affected Owner’s property a number of times over the years, but Council staff have no knowledge of the particulars of the discussions.  

25.     Negotiations with the landowners have been ongoing for a number of years with no successful outcome.  Initially negotiations were held directly between the Owner and the Affected Owner, with the Council becoming involved from August 2021 onwards. 

26.     The Council has attempted to engage with the Affected Owner to offer advice on the proposed works and facilitate an agreement.  No engagement was forthcoming from the Affected Owner during this facilitation period. A record of this engagement is attached as Attachment C

27.     To date, the Affected Owner has not made a formal objection to the proposal to construct the proposed pipeline but continues not to agree to provide access to allow these works to continue.  After being served with the section 460 Notice, the Affected Owner sent their Email Response to Notice on 29 August 2022 to reiterate that access would not be granted to authorise the construction of the pipeline.  A copy of this email is attached as Attachment B.

28.     Notice of the 13 September 2022 hearing was provided to the Affected Owner on 30 August 2022 by regulatory services.

Summary of objections received 

29.     The Affected Owner sent their Email Response to Notice on 29 August 2022, on the grounds that alternative options may be more suitable (Attachment B).

Recommended stormwater management option  

30.     Staff recommend that construction of the proposed stormwater works proceed at 9 Orion Place, Hillcrest, as per option one of the Strategic Assessment (Attachment A).  

31.     The works are the only practical route to enable stormwater servicing at 3 Orion Pace, Hillcrest and to meet the council’s stormwater standards. Works are expected to take up to 5 days to complete, and staff will work with the landowners to ensure minimal disruption occurs.

Tauākī whakaaweawe āhuarangi

Climate impact statement

32.     Auckland Council adopted Te Tāruke-ā-Tāwhiri: Auckland's Climate Plan on 21 July 2020. Some of the key elements of the plan include how we will adapt to climate change, taking a precautionary approach and preparing for our current emissions pathway and the prospect of a 3.5 degrees warmer region.

33.     One of the expected consequences of rising global temperatures is increased and more intense rainfall. To contribute to increasing Auckland’s resilience to climate change, the Auckland Council Stormwater Code of Practice requires all new infrastructure to be designed to deal with these expected impacts and severe weather events.


 

 

 

34.     The proposed pipe has been designed to cater for 10 percent annual exceedance probability (1 in 10-year average recurrence interval) storm events, including allowance for climate change. This has the effect of making the network more resilient to storm events and reducing the likelihood of flooding of properties.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

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

36.     The pipe once constructed will remain in private ownership.  

 

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

Local impacts and local board views

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

 

Tauākī whakaaweawe Māori

Māori impact statement

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

39.     Council staff notify iwi representatives of proposed projects through Healthy Water’s monthly email that includes all active Healthy Waters projects. Only projects needing resource consent are included in the monthly email. The proposed works in this instance are relatively minor and no resource consent is required and therefore require no such notification. 

40.     Improved water quality for Tāmaki Makaurau is a priority for mana whenua. The recommended option will contribute to a better functioning stormwater management system, reducing the impact of the development on water quality.

 

Ngā ritenga ā-pūtea

Financial implications

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

42.     The Owner will be responsible for any proven injurious affection to private land pursuant to section 460(4) of the LGA74, and the Public Works Act 1981. 


 

 

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

43.     Staff have undertaken a systematic risk assessment. Key risks and proposed mitigations relating to the endorsement of option one are shown in Table 1 below:

Table 1. Risks and mitigations arising from Option one: crossing land at 9 Orion Place, Hillcrest 

Risk 

Likelihood and consequence 

Mitigation 

Legal and Financial risk – If the Affected Owner judicially reviews the Council’s decision, the Council will be responsible for the costs of litigation.   

Likelihood: Low 

Consequence: Medium 

As with all decisions made by the Council, a person may allege that the Council has made a decision in a manner that gives rise to an application for judicial review.  

Council staff are mindful of the Council’s legal obligations around decision-making and have taken steps to consider alternative courses of action (including doing nothing) and to take into account the views and interests of persons affected by, or having an interest in, the decision.   

These steps reduce the likelihood of an adverse judicial review outcome.  

Injurious Affection - If the Affected Owner proves injurious affection, the Council will need to pay that injurious affection to the Affected Owner.   

Likelihood: Low 

Consequence: Medium 

In physical works construction, the Council takes measures to reduce the likelihood and impact of injurious affection arising.   

Works of this nature rarely give rise to injurious affection claims because they do not impact on the development potential or use of property.   

Under legislation, whilst the Council is initially responsible for paying any injurious affection claim, it is entitled to recover its costs from the Owner (see section 460(3) of the LGA74).   

If the landowners are unsuccessful, they will be liable to pay court costs. 

 

Ngā koringa ā-muri

Next steps

44.     If the Regulatory Committee determines to proceed with the project the next step will be to notify the Affected Owner in writing of the council’s intention to proceed with the works. The work is proposed to be undertaken in October 2022.


 

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

2021.09.08 Strategic assessment - 3 Orion Place

137

b

2022.08.29 Email from Affected Owner

143

c

Correspondence Log

145

d

2022.08.24 - CP0517 - S460 notice - 9 Orion Pl

147

     

Ngā kaihaina

Signatories

Author

Karla Crawford - Principal Healthy Waters Advisor

Authorisers

Barry Potter - Director Infrastructure and Environmental Services

Craig Hobbs - Director Regulatory Services

 

 


Regulatory Committee

13 September 2022

 

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13 September 2022

 

Determination of Objection to Nuisance Abatement Notice - David Fenton

File No.: CP2022/12976

 

  

 

Te take mō te pūrongo

Purpose of the report

1.       To hear and determine the objection by David Fenton against a Nuisance Abatement Notice (NAN) issued on 06 July 2022 pursuant to section 55(1)(b) of the Dog Control Act 1996 (DCA).

Whakarāpopototanga matua

Executive summary

2.       Mr Fenton is the primary owner of a male, black and tan, German Shepherd dog called Ukko. This dog is two years and 3 months old. Since December 2020, Animal Management has received several barking complaints involving this dog.

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

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

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

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

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

Ngā tūtohunga

Recommendation/s

That the Regulatory Committee:

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

b)      uphold the Noise Abatement Notice.

Horopaki

Context

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

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

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

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

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

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

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

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

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

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

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

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

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

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

c.   any other relevant matters.

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

a.   confirm the NAN

b.   modify the requirements stipulated in the NAN, or

c.   cancel the NAN.

Background - Earlier complaints

19.     Mr Fenton resides in a residential property in Albany, Auckland. He is the registered owner of a male, black and tan, German Shepherd dog called Ukko.

20.     During the period December 2020 to May 2021, Animal Management received complaints from an occupant of a neighbouring property, about the excessive and loud barking of the dog. The property of the neighbour adjoins the back part of Mr Fenton’s property.

21.     On 16 December 2020, A Notification of Barking Complaint was sent to Mr Fenton, refer Attachment A. A Notification of a Further Barking Complaint was sent to Mr Fenton on
27 December 2020. He was notified of further complaints and supplied with educational material on the possible reasons for and abatement of dogs barking, refer Attachment B.


 

 

 

22.     On 8 January 2021, another complaint was received, and another notification letter was sent to Mr Fenton with the s55 Formal Warning Letter, refer Attachment C. A complainant statement signed on 21 January 2021 was provided, refer Attachment D. A further complaint was received on 30 January 2021 after the issuance of a warning letter.

23.     On 7 April 2021, as per request of Mr Fenton, the BCI sent more barking information brochures which has more about the use of sonic box/bark box which could be worth looking at whenever the dog is left alone in the house or not supervised, refer Attachment E. On 10 May, a further complaint was received for the excessive barking of this dog, causing nuisance.  A complainant statement signed on 20 May 2021 was provided, refer Attachment F.

24.     These complaints were dealt with in the old process where a Nuisance Abatement Notice (NAN) was issued to Mr Fenton on 21 May 2021, refer Attachment G.  This NAN was subsequently withdrawn as it was issued during the time when the Barking policy/process was being reviewed and changed.

25.     On 26 May 2021, a barking complaint was received and both parties were contacted.  A property inspection was conducted by a Barking Complaints Investigator (BCI) and a Letter of Recommendations was sent to Mr Fenton on 11 July 2021, refer Attachment H.

26.     The Recommendations from the Property Inspection are as follows:

a.   Ensure Ukko gets walked for at least 30 minutes each day – ideally twice-a day – morning and evening and has toys and bones changed weekly.

b.   Correctly working Sonic box devices near front gate and on back fence.

c.   Ukko is to wear a fully functional, correctly fitted anti-bark collar – vibration or citronella at all times when he is outside.

d.   Doggie day care one or two days a week.

e.   Radio or TV on when no one is home.

27.     On 12 August 2021, a further complaint was received from the same occupant of a neighbouring property about the barking of the dogs.  On 18 August 2021, the complainant supplied a document with the time and duration of barking, refer Attachment I. The BCI advised the dog owner of the barking times as requested.

28.     A complainant statement signed on 24 August 2021 was provided, see Attachment J. A witness statement signed on the same day was also provided by another occupant of the same neighbouring property, refer Attachment K.

29.     On 31 August 2021, a NAN was issued with the following requirements, refer Attachment L:

a.   Ukko is to be wearing a fully functional, correctly fitted, anti-bark collar (vibration, sonic or citronella) when outside in the property.

b.   Install and maintain operating sonic box devices near front gate and on back fence.

30.     A detailed BCI formal statement signed on 1 October 2021 was provided, refer Attachment M.

31.     An objection to the NAN was received.  However due to delays in gathering information and year-end closures, the objection was not heard, and it was stood down. There was no pressing urgency for a hearing at that time as there were no complaints received and the effectivity period of the NAN was about to expire.

32.     The complaint was closed as there were no complaints received for 6 months from the issuance of the NAN.


 

 

33.     From May 2022 to August 2022, Animal Management received several more complaints from about the loud and persistent barking of the dog:

a.   RFS 8101054265 received 24 May 2022

The complainant stated that the dog will bark from 6:30/7am almost every day and it will be barking throughout the day. Complainant advised that they have recorded the barking and that when the NAN was issued the barking improved. However, since it has expired, the excessive barking has started again.

On 26 May 2022, a Barking Complaints Advisor (BCA) contacted Mr Fenton to notify him of the barking complaint and to advise that a formal warning letter will be issued to him.  He said that their dog has been quiet for a couple of days and triggered by other dogs’ barking. Mr Fenton also said that the complaints are exaggerated.

On the same day, a Formal Warning Letter was issued to him with barking information brochures on why dogs bark excessively and ways to reduce nuisance, refer Attachment N.

b.   RFS 8101066224 received 16 June 2022

The complainant said that the dog was barking excessively on 15 and 16 June 2022. She sent an email to the BCI with a record of barking times, refer Attachment O.

On 20 June 2022, the BCI has contacted Mr Fenton about the barking complaints. He said that his dog had a stone removed from his stomach and has been inside recovering for a while. They have just started putting him outside and have noticed that he has been really unsettled.  They also said that they have new neighbours and there are more dogs in the area that triggers his dog’s barking.

The BCI asked Mr Fenton if he could keep his dog for longer periods inside the house, and if he could look into the anti-barking devices again as the situation improved while the NAN was in place. Mr Fenton advised that he would sort something out.

A Notification of Further Barking Complaint was sent by the BCI to Mr Fenton together with the Barking information brochures, refer Attachment P.

On 22 June 2022, the BCI received an email complaining about the excessive barking of Mr Fenton’s dog.  The complainant was advised to call Council to lodge a complaint.

c.   RFS 8101075095 received 3 July 2022

Complainant said that the barking continues. She has also provided the signed complainant’s statement for the incident on 22 June 2022, refer Attachment Q.

Complaint resulting in NAN

34.     On 6 July 2022, a NAN was issued to Mr Fenton with the following requirements, refer Attachment R:

a.    Ukko is to be wearing a fully functional, correctly fitted, anti-bark collar (vibration, sonic or citronella) when outside in the property

b.    Install and maintain operating sonic box devices near front gate and on back fence near kennel.

A BCI statement in relation to the latest complaint signed on 4 July was provided, refer Attachment S.

An Animal Management Officer who accompanied the BCI on a property inspection provided a formal statement, refer Attachment T.

35.     On 11 July 2022, Mr Fenton objected to the NAN on the basis that Ukko had an emergency surgery and has since been feeling unsettled.  He also said that there are new neighbours moving in next door and new dogs in the area, refer Attachment U.

36.     A detailed BCI formal statement signed on 03 August 2022 was provided, refer Attachment V.

Subsequent complaints

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

a.   RFS 8101095021 received 4 August 2022

The complainant sent her complaint by email dated 5 August 2022, with a record of barking times, refer Attachment W. The complainant states that despite the issuance of the Noise Abatement Notice, the dogs were barking loudly and continuously from early morning.

Tātaritanga me ngā tohutohu

Analysis and advice

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

39.     Ukko mostly barks excessively when no one is home. This is a sign of boredom which with most dogs leads to barking.

40.     Mr Fenton accepts that Ukko barks but has deemed it as not excessive and/or because of Ukko’s surgery or other triggers. Barking can become a nuisance if it is constantly repeated or continually recurring. In such instances a responsible dog owner would take steps to remove nuisance barking.

41.     The barking times as recorded by the complainant is typical of Ukko’s barking. There is a clear pattern.

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

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

Tauākī whakaaweawe āhuarangi

Climate impact statement

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

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

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

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

Local impacts and local board views

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

Tauākī whakaaweawe Māori

Māori impact statement

47.     This report has no impact on Māori.

Ngā ritenga ā-pūtea

Financial implications

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

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

49.     There are no risks in upholding the NAN.

Ngā koringa ā-muri

Next steps

50.     The Regulatory Committee must give Mr Fenton written notice of its decision as soon as practical.

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Letter to Dog Owner dated 16.12.2020

157

b

Email to Dog Owner dated 27.12.2020

159

c

Email and Formal Warning Letter dated 11.01.2020

169

d

Complainant’s Statement dated 21.01.2021

173

e

Email to Dog Owner dated 07.04.2021

175

f

Complainant’s Statement dated 20.05.2021

183

g

Nuisance Abatement Notice issued dated 21.05.2021

187

h

Notification of Further Barking Complaint dated 11.07.2021

189

i

Complainant’s Record of Barking times dated 07.08.2021

191

j

Complainant’s Statement dated 24.08.2021

193

k

Witness Statement dated 24.08.2021

197

l

Email to Dog Owner dated 31.08.2021

201

m

Statement of Barking Complaints Investigator dated 01.10.2021

205

n

Email to Dog Owner dated 26.05.2022

215

o

Complainant’s email to Barking Complaints Investigator dated 18.06.2022

219

p

Email to Dog Owner dated 20.06.2022

221

q

Complainant’s Statement dated 22.06.2022

223

r

Nuisance Abatement Notice dated 06.07.2022

227

s

Statement of Barking Complaints Investigator dated 04.07.2022

229

t

Statement of Animal Management Officer dated 12.07.2022

231

u

Email to Dog Owner dated _Redacted

233

v

Statement of Barking Complaints Investigator dated 03.08.2022

237

w

Complainant’s Record of Barking times dated 05.08.2022

245

     

Ngā kaihaina

Signatories

Author

Angeli Castro - Team Leader Barking & Fiel

Authorisers

Eleanor Waitoa, Manager Animal Management

Mervyn Chetty - Acting General Manager, Licensing and Regulatory Compliance

Craig Hobbs - Director Regulatory Services

 

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Determination of Objection against Disqualification of Dog Owner by Nicola Brigitta van Lunenburg

File No.: CP2022/13189

 

  

 

Te take mō te pūrongo

Purpose of the report

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

Whakarāpopototanga matua

Executive summary

2.       Ms Van Lunenburg was the registered owner of an adult male desexed Sharpei crossbred dog called Rua. On 22 October 2021 she transferred ownership of the dog to a third party. At all relevant times thereafter, she was in possession and in charge of Rua. She was also at all relevant times in possession and in charge of an adult female desexed Sharpei crossbred dog called Izzy.

3.       Section 2 of the Dog Control Act 1996 (DCA) defines the owner of a dog as any person who is in possession of that dog. Ms Van Lunenburg was therefore deemed to be the owner of the two dogs.

4.       On 27 January 2022 Animal Management classified Ms Van Lunenburg as a probationary owner under section 21 of the DCA. This was because she had committed three or more infringement offences, not relating to a single incident or occasion, within a continuous period of 24 months. Refer Attachment A.

5.       On 2 May 2022 Animal Management decided to disqualify her under section 25 of the DCA from owning dogs because she had continued to commit further infringement offences under the DCA. The period of disqualification is for two years calculated from
19 March 2022 being the date of the last qualifying infringement offence.

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

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

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

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

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

8.       The effect of the disqualification is that Ms Van Lunenburg may not own a dog or be in possession of a dog at any time during the period of disqualification.

9.       On 17 May 2022 Ms Van Lunenburg objected to her disqualification (refer Attachment C) on the basis that:

a)   There is insufficient evidence to prove the commission of the infringement offences, and

b)   She was still under probation when Animal Management purported to disqualify her from owning dogs.


 

 

10.     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

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

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

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

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

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

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

e)   Any other relevant matters.

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

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

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

Infringement notices issued during the period January 2017 to December 2021

16.     Since 2016 the Council has received numerous reports of non-compliance relating to
Ms Van Lunenburg’s obligations under the DCA to ensure that the dogs are always kept under control.


 

 

17.     Below is a summary of the infringement notices issued as a result of some of those complaints:

 

NO

INFRINGEMENT

 NUMBER

OFFENCE DATE

DOG

CIRCUMSTANCES OF OFFENCE

1

61000017662

31/12/2016

21h35

Rua

s 52A(3) DCA – failure to keep dog controlled or confined

 

Rua escaped from Van Lunenburg’s property in Takapuna. Dog seized from a neighbouring property and impounded

2

61000020256

20/12/2017

18h00

Rua

s 20(5) DCA – failure to comply with Clause 7.1 Dog Management Bylaw 2012 by not keeping dog under control on leash in public place

 

Rua was sighted at large in Takapuna. Photos supplied by complainant

3

61000025789

26/4/2017

20h40

Rua

s 52A(3) DCA – failure to keep dog controlled or confined

 

Rua escaped from Van Lunenburg’s property in Takapuna. Dog seized from a neighbouring property and impounded

4

61000029067

9/6/2017

12h20

Rua

s 52A(3) DCA – failure to keep dog controlled or confined

 

Rua escaped from Van Lunenburg’s property on in Takapuna

5

61000294747

3/1/2021

13h13

Rua

s 53(1) – failure to control dog

 

Rua found at large upon in Takapuna. Dog seized and impounded

6

61000307237

20/2/2021

14h30

Rua

s 53(1) – failure to control dog

 

Rua and Izzy captured on CCTV on neighbouring property on North Piha Road

7

61000339961

61000339996

18/9/2021

12h45

Rua

Izzy

s 20(5) DCA – failure to comply with Clause 7.1 Dog Management Bylaw 2012 by not keeping dog under control on leash in public place

 

Rua and Izzy seen at large on North Piha Road

8

61000344345

61000344337

7/10/2021

20h22

Rua

Izzy

s 53(1) – failure to control dog

 

Rua and Izzy observed on CCTV footage roaming on a neighbouring property on North Piha Road

9

61000344353

61000344221

10/10/2021

12h52

Rua

Izzy

s 53(1) – failure to control dog

 

Rua and Izzy observed on CCTV footage roaming on a neighbouring property on North Piha Road

 

On 22/10/2021 at 12h23 an Animal Management Officer (AMO) reminded Ms Van Lunenburg by text message that her dogs must be contained on her property. Her response is in Attachment D

10

61000345627

22/10/2021

19h22

Rua

s 53(1) – failure to control dog

 

Rua and Izzy observed on CCTV footage roaming on a neighbouring property on North Piha Road

 

On 29/10/2021 an AMO reminded Ms Van Lunenburg that her dogs must remain on her property unless they are under her control and on leash. She was also given advice on how to confine her dogs within her property. Refer Attachment E.

11

61000349118

61000349126

6/11/2021

16h55

Rua

Izzy

s 53(1) – failure to control dog

 

Rua and Izzy observed on CCTV footage roaming on a neighbouring property on North Piha Road

 

On 17/11/2021 an AMO informed Ms Van Lunenburg by text message that she was still liable for offending under the DCA if the dogs were in her possession. Her response is attached in Attachment F.

12

61000348480

61000349177

20/11/2021

15h26

Rua

Izzy

s 53(1) – failure to control dog

 

Rua and Izzy observed on CCTV footage roaming on a neighbouring property on North Piha Road

13

61000355827

61000355819

20/12/2021

12h20

Rua

Izzy

s 53(1) – failure to control dog

 

Rua and Izzy observed on CCTV footage roaming on a neighbouring property on North Piha Road

 

18.     On 27 January 2022 Ms Van Lunenburg was classified as a probationary dog owner for the period 6 November 2021 to 6 November 2023 unless earlier terminated by the council. This classification was because she has committed more than three offences, not relating to a single incident or occasion, within a continuous period of 24 months. The notice was left on her property in Takapuna on 3 February 2022. Refer Attachment A.

19.     The effect of the probationary classification is that she was not allowed to become the registered owner of any more dogs during the period of probation for a period of 2 years from the date of classification.

Disqualification

20.     Ms Van Lunenburg continued committing infringement offences under the DCA:

 

NO

INFRINGEMENT NUMBER

OFFENCE DATE

DOG

CIRCUMSTANCES OF OFFENCE

14

61000359903

30/1/2022

10h08

Rua

s 53(1) – failure to control dog

 

Rua observed on CCTV footage roaming on a neighbouring property on North Piha Road

 

On 10/2/2022 an AMO warned Ms Van Lunenburg that she may be disqualified from owning dogs because of the infringement offences. Refer Attachment G

15

61000359822

5/2/2022

12h47

Rua

s 53(1) – failure to control dog

 

Rua observed on CCTV footage roaming on a neighbouring property on North Piha Road

 

On 22/2/2022 Ms Van Lunenburg was warned by letter that she risked of being disqualified from owning dogs. Refer Attachment H.

16

6100367795

19/3/2022

01h00

Rua

s 53(1) – failure to control dog

 

Rua observed on CCTV footage roaming on a neighbouring property on North Piha Road

 

21.     All of the infringement notices issued to Ms Van Lunenburg explained her right to dispute the infringements. She has failed to do so in each instance.

22.     On 2 May 2022 Animal Management decided to disqualify her under section 25 of the DCA from owning dogs because she had continued to commit further infringement offences under the DCA. The period of disqualification is for two years calculated from
19 March 2022 being the date of the last qualifying infringement offence.

23.     Ms Van Lunenburg is no longer the registered owner of a dog. The effect of the disqualification is that she may not own or be in possession of a dog at any time during the period of disqualification.

24.     The probationary classification is automatically terminated once a disqualification notice is issued.

Further complaints

25.     On 12 May 2022 the council received a complaint about Izzy being at large on a neighbouring property on 29 April 2022 at 13h20. Ms Van Lunenburg was consequently issued with infringement notice 61000375631 under section 53(1) of the DCA for failing to control her dog. She did not dispute this infringement.


 

 

 

26.     On 25 July 2022 the council received a complaint about Rua and Izzy being walked off-leash by Ms Van Lunenburg on 24 July 2022 at about 10h30 on North Piha Road in the vicinity of the surf club. Ms Van Lunenburg was issued with infringement notices 61000390673 and 61000390231 under section 53(1) of the DCA for failing to control the dogs. As at date of this report, she still has time to dispute these two notices.

Tātaritanga me ngā tohutohu

Analysis and advice

27.     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.

28.     In the case of a probationary owner, the likelihood of re-offending is reduced by educating the dog owner on 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.

29.     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.

30.     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.

31.     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.

32.     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

33.     It was decided to disqualify Ms Van Lunenburg from owning dogs to prevent re-offending which may cause harm and nuisance to people and animals.

34.     The following factors were considered in making this decision:

a)   The dogs pose a risk to road users,

b)   The dogs cause a nuisance to the community,

c)   Ms Van Lunenburg was educated on her obligations to keep the dogs confined within her property,

d)   Her repeat disregard of her obligations under the DCA,

e)   Her lack of competency in terms of responsible dog ownership,

f)    The probationary classification had no deterrent effect on her.

35.     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 Ms Van Lunenburg was disqualified:

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

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

·    Ms Van Lunenburg was educated on her obligations under the DCA but failed to take steps to confine her dogs on her property,

·    She has committed at least one further offence under the DCA since her disqualification.

c)   Any steps taken by Ms Van Lunenburg to prevent further offences:

·    Ms Van Lunenburg may address the Regulatory Committee on this point.

d)   The matters advanced in support of the objection:

·    Ms Van Lunenburg had the opportunity to dispute the infringement notices but failed to do so. This hearing is not the correct forum to establish her liability for the infringement offences,

·    The probationary classification automatically fell away once the disqualification notice was served on Ms Van Lunenburg.

e)   Any other relevant matters:

·    Ms Van Lunenburg may wish to advance relevant matters touching on her dog ownership.

Advice on period of disqualification

36.     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.

37.     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.

38.     Applying these considerations to Ms Van Lunenburg’s case, our advice is that a disqualification period of two years, calculated from the date of the last relevant offending, i.e., 19 March 2022 is appropriate.

Tauākī whakaaweawe āhuarangi

Climate impact statement

39.     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

40.     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

41.     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

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

Ngā ritenga ā-pūtea

Financial implications

43.     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

44.     Ms Van Lunenburg 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

45.     The Regulatory Committee must give Ms Van Lunenburg notice of its decision and the reasons for it as soon as practical.

 


 

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Notice of Probationary Classification

257

b

Notice of Disqualification

259

c

Objection

261

d

Text message 22.10.2021

263

e

Text message 29.10.2021

265

f

Text message 17.11.2021

271

g

Text message 10.02.2022

273

h

Warning of potential disqualification

275

     

Ngā kaihaina

Signatories

Author

Chrisna Nortje – Principal Specialist, Animal Management

Authorisers

Eleanor Waitoa – Manager, Animal Management

Mervyn Chetty - Acting General Manager, Licensing and Regulatory Compliance

Craig Hobbs - Director Regulatory Services

 

 

 


Regulatory Committee

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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

Te take mō te pūrongo

Purpose of the report

2.       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

3.       Mrs Johnston was the owner of an adult male entire Siberian Husky called Aspen.

4.       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.

5.       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.

6.       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.

7.       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.

8.       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.

9.       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.


 

 

10.     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

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

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

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

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

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

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

e)   Any other relevant matters.

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

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

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

Previous complaints about Aspen

1.    Request for Service (RFS) 8100314123

16.     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.

17.     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.

18.     On 11 December 2018 Mrs Johnston was issued with a formal warning.

2.    RFS 8100418569

19.     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.

20.     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.

21.     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

22.     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.

23.     No action was taken against Mrs Johnston. Refer job sheet 8100418976 filed as Attachment E.

4.    RFS 8100467989

24.     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.

25.     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.

26.     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

27.     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.

28.     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.

29.     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.

30.     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.

31.     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.


 

 

 

32.     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

33.     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.

34.     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

35.     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.

36.     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

37.     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.

38.     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

39.     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.

40.     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

41.     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.

42.     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.

43.     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.

44.     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.

45.     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

46.     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. 

47.     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.  

48.     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. 

49.     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.

50.     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.

51.     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

52.     It was decided to disqualify Mrs Johnston from owning dogs to prevent re-offending which may cause harm and nuisance to people and animals.

53.     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.

54.     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

55.     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.

56.     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.

57.     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

58.     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

59.     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

60.     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

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

Ngā ritenga ā-pūtea

Financial implications

62.     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

63.     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

64.     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

Eleanor Waitoa - Manager Animal Management

Authorisers

James Hassall - General Manager, Licensing and Regulatory Compliance

Craig Hobbs - Director Regulatory Services

 

 


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