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

 

Date:

Time:

Meeting Room:

Venue:

 

Tuesday, 7 November 2023

10.00am

Room 1, Level 26
135 Albert Street
Auckland

 

Komiti mō te Waeture me te Haumaru ā-Hapori / Regulatory and Community Safety Committee

 

OPEN AGENDA

 

 

 

 

MEMBERSHIP

 

Chairperson

Cr Josephine Bartley

 

Deputy Chairperson

Cr Ken Turner

 

Members

IMSB Member Edward Ashby

 

 

Cr Julie Fairey

 

 

Cr Alf Filipaina, MNZM

 

 

IMSB Member Tony Kake, MNZM

 

 

Cr Mike Lee

 

 

Cr Kerrin Leoni

 

 

Cr Sharon Stewart, QSM

 

Ex-officio

Mayor Wayne Brown

 

 

Deputy Mayor Desley Simpson, JP

 

 

(Quorum 5 members)

 

 

 

Sam Riddiford

Kaitohutohu Mana Whakahaere /
Governance Advisor

 

2 November 2023

 

Contact Telephone: 0273051871

Email: sam.riddiford@aucklandcouncil.govt.nz

Website: www.aucklandcouncil.govt.nz

 

 


Regulatory and Community Safety Committee

07 November 2023

A close up of a logo

Description automatically generated

 

ITEM   TABLE OF CONTENTS            PAGE

1          Ngā Tamōtanga | Apologies                                                                            5

2          Te Whakapuaki i te Whai Pānga | Declaration of Interest         5

3          Te Whakaū i ngā Āmiki | Confirmation of Minutes                                        5

4          Ngā Petihana | Petitions                                                                5  

5          Ngā Kōrero a te Marea | Public Input                                           5

5.1    Public Input: Carmel Claridge - Court of New Beginnings                                                                                                5

6          Ngā Kōrero a te Poari ā-Rohe Pātata | Local Board Input         6

7          Ngā Pakihi Autaia | Extraordinary Business                               6

8          Regulatory Services FY24 Q1 Performance Update                  7

9          Resource Consents Appeals: Status Report 7 November 2023                                                                                                          9

10        Designation of independent commissioners as duty commissioners to determine resource consent applications.                                                                                                        13

11        Dam Safety Regulations (Covering report)                               17

12        Summary of Regulatory and Community Safety Committee information memoranda, workshops, and briefings (including the Forward Work Programme) - 7 November 2023                 19

13        Objection to proposed stormwater works at 20A William Denny                                                                                             21

14        Objection to proposed stormwater works at 40 Mellons Bay Road                                                                                               31

15        Objection to stormwater works at 391A, 393A and 395A Mount Albert Road, Mount Roskill                                             41

16        Determination of Objection against Disqualification of Dog Owner Syrel Prasad                                                                     51

17        Determination of Objection against Probationary Classification of Dog Owner Grant Howard Baguley               57

18        Determination of an objection to a menacing dog classification by Jenna Aimee Smith                                         63

19        Te Whakaaro ki ngā Take Pūtea e Autaia ana | Consideration of Extraordinary Items

 


1          Ngā Tamōtanga | Apologies

 

 

 

2          Te Whakapuaki i te Whai Pānga | Declaration of Interest

 

 

 

3          Te Whakaū i ngā Āmiki | Confirmation of Minutes

 

            Click the meeting date below to access the minutes.

 

That the Regulatory and Community Safety Committee:

a)           whakaū / confirm the ordinary minutes of its meeting, held on Tuesday, 3 October 2023, including the confidential section, as a true and correct record.

 

 

 

 

4          Ngā Petihana | Petitions

 

 

 

5          Ngā Kōrero a te Marea | Public Input

 

5.1       Public Input: Carmel Claridge - Court of New Beginnings

Te take mō te pūrongo

Purpose of the report

1.      Carmel Claridge from the Court of New Beginnings will address the Regulatory and Community Safety Committee on its role in addressing homelessness in Auckland.

Whakarāpopototanga matua

Executive summary

2.      This committee is responsible for regulatory hearings (required by relevant legislation), regulatory policy and bylaws and is responsible for overseeing improvement of the Council’s regulatory functions and making certain regulatory decisions that are appropriate to be made by elected members.

3.      Through public input the committee is able field the concerns of individuals and groups to help inform decision making related to matters before the committee.

 

Ngā tūtohunga

Recommendation/s

That the Regulatory and Community Safety Committee:

a)      whiwhi / receive the public input from Carmel Claridge regarding the Court of New Beginnings and whakamihi / thank Carmel Claridge for attending the meeting.

 

 


 

 

 

6          Ngā Kōrero a te Poari ā-Rohe Pātata | Local Board Input

 

 

 

 

7          Ngā Pakihi Autaia | Extraordinary Business

 

 

 

 

 

 


Regulatory and Community Safety Committee

07 November 2023

 

Regulatory Services FY24 Q1 Performance Update

File No.: CP2023/16898

 

  

 

Te take mō te pūrongo

Purpose of the report

1.      To provide a summary of FY24 Quarter 1 activity and forward view for Auckland Council's Regulatory Services directorate.

Whakarāpopototanga matua

Executive summary

2.      After a decline in Resource Consent applications throughout FY23, things are picking up this quarter. We received 14% more than in FY23 Q4 with 3,818 applications lodged. The demand for Building Consent applications was slightly reduced with 4,014 lodgements (compared to 4,414 in FY23 Q4). There was continued demand for building inspections (51,734 carried out) and 4,736 Code Compliance Certificates (CCC) were issued which was a strong result.

3.      We are continuing to improve our customers’ online consenting experience. In August 2023, Code Compliance Certificate (CCC) customers were successfully moved onto the newly refreshed MyAuckland platform. CCC customers can now see important information such as where their application is at, who is processing it, and any applicable dates that relate to their application. There is now better visibility of the Building Inspections bookings process through a new interface where everything is managed in one digital location.

4.      All priority 3 and priority 4 Requests for Service (RFS) have been investigated by Compliance teams. New initiatives following the merger of the Compliance Response and Investigations Unit and the Proactive Compliance Unit are helping to increase request for service (RFS) response levels. Process improvements, including changes to the way jobs are allocated, have meant that all priority 3 and 4 incidents can now be investigated (as opposed to closed due to a lack of resourcing).

5.      After carrying out more than 7,000 Rapid Building Assessments following the extreme weather events, we continue to play a vital role in the Tāmaki Makaurau Recovery office. To date we have ‘closed’ 5766 placards. We are part of a programme of work looking at how Auckland can build resilience against extreme weather in the future.

6.      Our Iwi and Māori navigation service provides support to mana whenua, marae, and Māori organisations in Tāmaki Makaurau through our Regulatory processes. Our Consents kaiārahi provided support to 5 entities including 3 new ones. The majority of these support requests are focused on resource consenting support.

7.      19 new Animal Management roles have been approved and recruitment has begun. This to address health, safety, and wellbeing issues, meeting increased demand, and to deliver proactive targeted initiatives. 

8.      A proactive press release on the Animal Management Annual Report generated extensive coverage across online, radio and TV platforms, raising awareness of how responsible dog ownership can help to mitigate dog roaming, attacks and aggression.

9.      Council is bringing the CityWatch programme in-house to better support a safe and inviting city centre environment. Recruitment is underway for a new internal CityWatch team, and it is expected that officers will be on the ground within the next few weeks. The process of appointing a City Centre Safety Coordinator is also underway. This has been funded through the Mayor’s Office.

 

10.    The Water Reform-related National Transition Unit consultation process involved 118 kaimahi from Regulatory Engineering and Resource Consents. The process is to confirm which roles transfer across to the new entity. The process has been paused until the Department of Internal Affairs (DIA) is advised on the future direction by the new government.

 

Ngā tūtohunga

Recommendation/s

That the Regulatory and Community Safety Committee:

a)      whiwhi / receive the Regulatory Services FY24 Q1 report and presentation.

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Regulatory Services FY24 Q1 Performance Update

 

      

Ngā kaihaina

Signatories

Author

James Ruhfus - Manager Operations

Authoriser

Craig Hobbs - Director Regulatory Services

 


Regulatory and Community Safety Committee

07 November 2023

 

Resource Consents Appeals: Status Report 7 November 2023

File No.: CP2023/16145

 

  

 

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 report provides a summary of current resource consent appeals to which the Auckland Council is a party. It updates the report to the Regulatory and Community Safety Committee on 18 August 2023.

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 and Community Safety Committee:

a)      whiwhi / receive the Resource Consents Appeals: Status Report 7 November 2023

 

Horopaki

Context

4.      As at 24 October 2023, there are 34 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 18 August 2023, there have been two new appeals lodged and thirteen either withdrawn or resolved.

6.      Grafton Downs Limited and Phoenix Property advisory Limited appeal the decision to refuse their resource consent applications for a staged Framework plan to establish a local commercial centre at the northern end of the Paerata Rise precinct. Separate resource consent for this site at 3 Te Rata Boulevard is sought for a 3,850m2 supermarket and retail and food and beverage activities with associated access, parking landscaping and signage.

7.      The new appeal from Martin Dancy is to the decline of a non complying subdivision consent. The consent seeks to transfer a lot to a new location on and create one in-situ residential lot, based on the protection of 5.3ha of revegetation planting, at 424 Whitmore Road, Takatu. The decision deemed the revegetation planting areas to not qualify due to being either isolated pockets, not contiguous with SEA quality areas or separated by access gaps that create permanent adverse effect effects. Not meeting the standards for in situ subdivision using revegetation planting were found to create precedence effects and potential difficulties with council’s consistent administration of the Unitary Plan.

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 and Community Safety Committee is to receive this progress report rather than to consider the relevance to Māori associated with each of the appeals at this time.

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

Ngā ritenga ā-pūtea

Financial implications

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

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

15.    Not applicable.

Ngā koringa ā-muri

Next steps

16.    Not applicable.

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Current Resource Consent Appeals as 24 October 2023

 

     

Ngā kaihaina

Signatories

Author

Robert Andrews - Principal Specialist Planning

Authoriser

Craig Hobbs - Director Regulatory Services

 

 


Regulatory and Community Safety Committee

07 November 2023

 

Designation of independent commissioners as duty commissioners to determine resource consent applications.

File No.: CP2023/16251

 

  

 

Te take mō te pūrongo

Purpose of the report

1.      To designate a number of independent commissioners as duty commissioners.

Whakarāpopototanga matua

Executive summary

2.      The Regulatory and Community Safety Committee has recently finalised the selection process to determine a new pool of independent hearing commissioners for a three-year term starting 1 January 2024. From this list, a smaller group of ‘on call’ duty commissioners need to be designated. These planning commissioners primarily determine resource consent applications where staff do not have delegation; where the council or a Council Controlled Organisation (CCO) is the applicant; and to determine notified applications that do not require a hearing.

 

Ngā tūtohunga

Recommendation/s

That the Regulatory and Community Safety Committee:

a)      whakaae / agree to designate, in accordance with clause 3.3 of the Regulatory and Safety Committee Policy (April 2023) , the following independent commissioners to act as duty commissioners for the period 1 January 2024 to 31 December 2026:

A)        Lee Beattie

B)        Robert Scott

C)        Richard Blakey

D)        Mark Farnsworth

E)        Cherie Lane

F)         David Wren

G)        Karyn Kurzeja

H)        Kim Hardy

I)          Peter Kensington

J)         Nicki Williams

K)        Vanessa Wilkinson

L)         Nick Pollard

M)        Amanda de Jong

b)      tautapa / delegate, in accordance with clause 3.3 of the Regulatory and Safety Committee Policy, to the General Manager, Unit Managers and Principal Specialist Planners – Regulatory Engineering and Resource Consents the authority to assign one or more duty commissioners to make decisions on resource consent applications where no hearing is required.

c)      tautapa / delegate in accordance with clause 3.3 of the Regulatory and Safety Committee Policy, to the Chairperson, Regulatory and Community Safety Committee and the General Manager Regulatory Engineering and Resource Consents the authority to designate replacement duty commissioners, by the selection of an alternative professional planner commissioner from the independent commissioner pool.

d)      tautapa / delegate in accordance with clause 3.6 of the Regulatory and Safety Committee Policy, the staff authority to assign additional or alternate commissioners beyond the “duty” group but from the approved list of independent commissioners, as may be necessary due to unavailability and/or depending on particular skills or knowledge required for a particular resource consent application or section 357 objection determination.

 

Horopaki

Context

3.      The Regulatory and Safety Committee Policy April 2023, anticipates the practice of duty commissioners to help ensure the efficient determination of applications within statutory timeframes. The duty commissioners are to be available at short notice to make decisions, where necessary, on resource consents not requiring a hearing.

4.      With the new pool of resource management commissioners now established for the next three-year term, it is the practice to select around 12 duty commissioners from this pool. A new assignment of duty commissioners is therefore required from the start of 2024. It is recommended that 10 of the current duty commissioners are rolled over for the coming term.

Tātaritanga me ngā tohutohu

Analysis and advice

5.      Duty commissioners are rostered on call for one week per month. The commissioners consider approximately 500 primarily non-notified applications per year, typically within 24 hours of receipt.

6.      Paragraph 3.3 of the Regulatory and Safety Committee Policy provides for duty commissioners and describes their role. It states;

“Following consultation with the independent commissioners and staff, the Regulatory and Safety Committee will designate a number of independent commissioners appointed to carry out Resource Management Act functions to be duty commissioners who must be available on short notice to make decisions.”

7.      The Regulatory and Safety Committee Policy at Paragraph 3.5 already acknowledges the current delegation for staff to then assign these duty commissioners.

8.      The benefit of designating duty commissioners is to allow staff to roster the commissioners to be able to consider applications on an ‘on call’ basis. The designation for a further period will ensure continuity of service and the determination of resource consents in a timely manner. It further avoids council staff needing to consider the factors under 3.7 of the policy for the appointment of commissioners on an application-by-application basis, as they will do when selecting a hearing panel for a notified application. The commissioners sit alone when making decisions so need to have a wide range of knowledge and expertise. The Regulatory and Safety Committee Policy 2023 is provided as Attachment A

9.      A group of around 10 to 13 commissioners has provided sufficient cover for the region over the past recent years and the number designated allows some rotation in setting the three-monthly rosters. The intent to roll over the current commissioners has merit in providing consistency of decision making with the more complex applications being processed.

 

10.    Additionally, the recommendation provides the opportunity for other planners in the pool to become duty commissioners. A delegation to the Chair of the Regulatory and Community Safety Committee and General Manager, Regulatory Engineering and Resource Consents will allow one or more of these commissioners to be swapped out for other planner commissioners from the wider independent commissioner pool as required, or on a yearly basis. This will allow for newer planners within the wider pool to undertake this work in the future if they were interested.

11.    There can also be instances where additional commissioners detailed knowledge or expertise is required, such as a legal matter, built heritage, previous consenting knowledge or Te Ao Māori and te Tiriti O Waitangi issues. For these situations the delegation is flexible to allow the addition of a further duty commissioner to assist or a specialist to be appointed as the duty commissioner in such circumstances.

12.    Duty Commissioners have also been used as a consistent pool of hearing commissioners for section 357 objections where these cannot be resolved through negotiation. Objections usually revolve around narrow but detailed matters and the use of duty commissioners for this purpose enables hearings to be arranged speedily to the benefit of the customer and helps grow a pool of specialist knowledge.

13.    There are also instances where notified applications do not require a hearing and the decision under the staff delegation manual is to be made by an independent commissioner. These include situations where neither the applicant nor submitters (where there are submitters) wish to be heard. In such situations the statutory timeframe for a decision is reduced and delegating authority for duty commissioners to consider these applications will ensure the council is able to meet strict timeframes.

Tauākī whakaaweawe āhuarangi

Climate impact statement

14.    The designation of duty commissioners does not influence any decision on climate impact. Impacts of climate change may however be a matter of consideration with individual resource consent applications that these commissioners may in the future be assigned to.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

15.    The selection of duty commissioners does not impact on other parts of the council group.

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

Local impacts and local board views

16.    The designation of duty commissioners is not a matter within the remit of local boards.

Tauākī whakaaweawe Māori

Māori impact statement

17.    All independent commissioners are expected to have an understanding of te Titiri O Waitangi and Te Ao Māori. The wider commissioner pool also contains commissioners who are specialists within these areas, and with particular applications they can be assigned to determine these as part of a duty commissioner panel.

Ngā ritenga ā-pūtea

Financial implications

18.    The designation of duty commissioners will help ensure council’s statutory timeframes are met and therefore avoid processing discounts. The commissioner costs are otherwise paid by the applicants. 

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

19.    There are no risks associated with designating duty commissioners from the wider commissioner pool who have already proceeded to appointment via a robust and comprehensive selection and interview process.

Ngā koringa ā-muri

Next steps

20.    N/A

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Regulatory and Safety Committee Policy April 2023

 

     

Ngā kaihaina

Signatories

Author

Robert Andrews - Principal Specialist Planning

Authoriser

Craig Hobbs - Director Regulatory Services

 

 


Regulatory and Community Safety Committee

07 November 2023

 

Dam Safety Regulations (Covering report)

File No.: CP2023/17141

 

  

 

Te take mō te pūrongo

Purpose of the report

1.      To recommend that the Committee agree to an amendment to the resolution of the Committee from 3 October 2023 to approve consultation of the proposed Dangerous Dams Policy 2023 using the special consultative procedure under s83 of the Local Government Act 2002.

Whakarāpopototanga matua

Executive summary

2.      This is a late covering report for the above item. The comprehensive agenda report was not available when the agenda went to print and will be provided prior to the 07 November 2023 Regulatory and Community Safety Committee meeting.

Ngā tūtohunga

Recommendation/s

The recommendations will be provided in the comprehensive agenda report.

 


Regulatory and Community Safety Committee

07 November 2023

 

Summary of Regulatory and Community Safety Committee information memoranda, workshops, and briefings (including the Forward Work Programme) - 7 November 2023

File No.: CP2023/16709

 

  

 

Te take mō te pūrongo

Purpose of the report

1.      To rreceive a summary and provide a public record of memoranda or briefing papers that have been distributed to the Regulatory and Safety Committee.

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

Whakarāpopototanga matua

Executive summary

3.      This is a regular information-only report which aims to provide greater visibility of information circulated to Regulatory and Community Safety Committee members via memoranda/briefings, where no decisions are required.

4.      The following information items have been distributed:

Date

Subject

04/10/2023

Hearings held, hearing panels and hearing outcomes July 2022 – June 2023.

1/11/2023

Freedom Camping Transition Fund Application

 

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

 

Ngā tūtohunga

Recommendation/s

That the Regulatory and Community Safety Committee:

a)      whiwhi / receive the Summary of Regulatory and Community Safety Committee information memoranda and briefings – 7 November 2023

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


 

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Forward Work Programme - November 7 2023

 

b

Hearings held, hearing panels and hearing outcomes July 2022 – June 2023

 

c

Freedom Camping Transition Fund Application

 

     

Ngā kaihaina

Signatories

Author

Sam Riddiford - Governance Advisor

Authoriser

Craig Hobbs - Director Regulatory Services

 

 


Regulatory and Community Safety Committee

07 November 2023

 

Objection to proposed stormwater works at 20A William Denny

File No.: CP2023/14685

 

  

 

Te take mō te pūrongo

Purpose of the report

1.      To hear and determine an objection to proposed stormwater works at 20A William Denny Avenue pursuant to section 181 of the Local Government Act 2002.

Whakarāpopototanga matua

Executive summary

2.      A developer has obtained approval from the council to connect a new development at 18 William Denny Avenue to the public stormwater manhole that is located on the neighbouring property at 20A William Denny Avenue.

3.      The proposed works involve the construction of a 5.2 metre length pipe through a trench, of which 3.2 metres will be on 20A William Denny Avenue. The trench will require the temporary removal of a section of boundary fence and a section of timber retaining wall and fencing on the affected landowner’s property, see Attachment A – approved business case. The work is estimated to take up to two weeks, subject to the contractors and engineers’ confirmation. Once constructed, this pipe will be vested in the council as a public stormwater asset.

4.      The owners of 20A William Denny Avenue have refused the developer access to their property for this purpose. Council-led efforts to facilitate an agreement have been unsuccessful.

5.      A site inspection and assessment for the pipe considered the following alternative options:

·        option one – extend the public network from 20A William Denny Avenue          (recommended option)

·        option two – construct a new public pipe and outlet on 21 Faulder Avenue

·        option three – install a kerb outlet to William Denny Avenue

·        option four – construct a new public pipe and outlet on 21 Faulder Avenue

·        option five – do nothing.

6.      The council has determined that the works constitute necessary public stormwater improvements. The council has issued a notice under section 181(2) of the Local Government Act 2002, informing the landowners of its intention to construct the works as a council project.

7.      The landowners have lodged a written objection to the works, on the grounds that:

a)      The notice fails to comply with the statutory requirements and is ultra vires to the provisions of section 181 (3) (b) of the Local Government Act 2002 in that the notice fails to:

b)      adequately describe the works proposed to be constructed on or under the affected land (works), see Attachment B – objection letter.

8.      If the Regulatory and Community Safety Committee determines that the works should proceed, construction will begin as soon as possible. The pipe will then be constructed by the council, with costs of the works to be paid for by the developer upfront. It is proposed that the pipe will be installed by opening trenching. The work will take approximately two weeks to complete.

9.      This report recommends that the Regulatory and Community Safety Committee endorse the proposed public stormwater works at 20A William Denny Avenue to manage the stormwater effects of the approved development at 18 William Denny Avenue.

10.    It has been explained to all affected property owners that they have the right to claim injurious affection (if established) under the Public Works Act 1981.

Ngā tūtohunga

Recommendation/s

That the Regulatory and Community Safety Committee:

a)      whakaae / agree to hear and determine the objections by the owners of 20A William Denny Avenue according to clause 1(e) of Schedule 12 of the Local Government Act 2002

b)      whakaae / agree that the council will proceed with the extension of the public stormwater network from 20A to 18 William Denny Avenue (as shown in Attachment A), according to clause 1(e) of Schedule 12 of the Local Government Act 2002.

Horopaki

Context

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

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

13.    Such works require either the prior written consent of the owners of the land, or that the council follows the process set out in Schedule 12 of the Local Government Act 2002.

14.    Schedule 12 requires that affected owners and occupiers are provided with a description of the proposed works, including plans, and are given the opportunity to object to the works within one month of notification.

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

Enabling stormwater management on 18 William Denny Avenue

16.    A developer has been granted resource consent by Auckland Council’s regulatory department to subdivide a property at 18 William Denny Avenue. A condition of that resource consent is that the new development connects to the public stormwater system.

17.    The developer has obtained engineering approval to connect the subdivision to the existing public stormwater manhole located on 20A William Denny Avenue, see Attachment A. The connecting pipe will cross approximately three metres into the impacted property near the rear boundary.

18.    It is proposed that a 3.2 metre-long, 2 metre-deep and 0.7 metre-wide trench is excavated from the boundary of 18 and 20A William Denny Avenue to an existing manhole on 20A William Denny Avenue. A section of a timber retaining wall and fence will be dismantled and the existing manhole abandoned, and a new manhole installed on 18 William Denny Avenue.

19.    A 5.2 metre-long, 225mm diameter pipe will be laid, of which 3.2 metres will be on the objector’s property at 20A William Denny Avenue.

20.    The trench will then be backfilled, the timber retaining wall and fence reinstated and the impacted ground and any other impacted features reinstated to their original state.

21.    The expected duration to carry out the work is two weeks, subject to the contractors and engineers’ confirmation once the site is established.

22.    Upon installation the new pipe will be vested in Auckland Council as a public stormwater asset to be owned and maintained by Healthy Waters.

Objections received from landowners at 20A William Denny Avenue

23.    The owners of 20A William Denny Avenue have refused to allow the developer to connect to the stormwater network at their property. The developer applied to the council to provide facilitation services to help reach an agreement with the landowner.

24.    The council staff assessed the proposed pipe installation and determined that the works are necessary public works and qualify for a council project under the powers of the Local Government Act 2002, which provides for public works to be undertaken on private land without the owner’s consent. Facilitation sessions commenced in December 2021 however, no agreement has been reached to date.

25.    The council issued notices to the affected properties about its intention to carry out the works under section 181 of the Local Government Act 2002, dated 29 August 2023.

26.    Following the issue of this notice, the council has continued to communicate with the landowners, however it has not been possible to reach an agreement.

27.    Pursuant to schedule 12 of the Local Government Act 2002, the landowners had until 1 October 2023 to formally object to the section 181 notice. On 28 September 2023 an objection was received.

Tātaritanga me ngā tohutohu

Analysis and advice

28.    The council is empowered to construct works on private land that it considers necessary for stormwater drainage. When determining the best option, the council looks at a range of possible options to achieve the required stormwater outcomes for the public good, and at the same time, to carefully balance any impacts on individual property owners.

29.    The council analysed four alternative alignments for connecting the development at 18 William Denny Avenue to the public stormwater system, see Attachment A – approved business case.

30.    These options are:

·        option one – to extend the public network from 20A William Denny Avenue (recommended option)

·        option two – construct a new public pipe and outlet on 21 Faulder Avenue

·        option three – install a kerb outlet to William Denny Avenue

·        option four – construct a new public pipe and outlet on 21 Faulder Avenue

·        option five – do nothing.

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


 

Table 1. Analysis of alignment options against various criteria

 

Option one

(Recommended)

Option two

 

Option three

 

Option four

Option five

(Do nothing)

Interference with existing services

Minor

Wastewater pipe can be avoided

Minor

Wastewater pipe can be avoided

Minor

Minor

Wastewater pipe can be avoided

N/A

Disruption to property owners

Minor

Medium

 

None

 

Medium

N/A

Cost

$

$

$$$

$

N/A

Route to existing stormwater network

Most direct

41 metres

Less direct

60 metres

Least direct

71.3 metres

Less direct

60 metres

N/A

Access for future maintenance

Good

Medium

Good

Medium

N/A

Duplication of existing stormwater infrastructure

0%

 

20%

0%

 

20%

N/A

Impact on development potential

Minor

Minor

Minor

Minor

N/A

Constructability risk

Minor

Medium

Medium

Medium

N/A

Dependent on pumping

No

No

No

Yes

N/A

Compliance with stormwater code of practice

Yes

Yes

(If private pipe N/A)

No

Yes

(If private pipe N/A)

N/A

Most positive

Moderately positive

Moderately negative

Most negative

Key

Analysing options for stormwater management on 18 William Denny Avenue

31.    Option 2 is not supported as it involves the installation of a stormwater pipe and outlet in the private bush/watercourse at 21 Faulder Avenue. A new stormwater pipe and outlet would require a complex consenting process. The affected owner at 21 Faulder Avenue previously advised he is not interested in allowing the proposed work. This option also does not involve existing public assets and would not qualify under section 181 of the Local Government Act (2002).

32.    Option 3 is not supported as it involves the installation of stormwater pumps and tanks which is considered an inefficient and substandard approach. It is also the most expensive and least direct option.

33.    Option 4 is not supported as it involves the installation of a stormwater pipe and outlet in the native bush/watercourse at 19 Faulder Avenue. As discussed in option 2, the stream is privately owned and therefore the works would require a complex consenting process. This option does not involve existing public assets and would not qualify under section 181 of the Local Government Act (2002).

34.    The council also considered a fifth option – do nothing.  This would involve the council walking away from the situation and leaving the developer to continue to negotiate with the owners. This option is not supported, as it means the developer is likely to pursue either options two or three.

35.    As described above, options two, three and four would mean the council inherits surplus stormwater infrastructure which it has to maintain as part of the public network. It also increases the likelihood of 18 William Denny Avenue discharging to the kerb in lieu of a better solution and in contravention of its current resource consent.

36.    As demonstrated by the assessment set out in Table 1, option one is the preferred option for the following reasons.

·        The route is short and clear and the existing wastewater pipe can be avoided.

·        The location of the works requires the dismantling of a small section of timber retaining wall. This can be done by hand with minimal equipment, resulting in minimal disturbance.

·        The pipe route is the most practical and direct to reach the connection point.

·        The route does not duplicate existing stormwater infrastructure.

·        The proposed method results in the least risk for construction.

Negotiating with the landowners

37.    Negotiations with the landowners have been ongoing since July 2019. Initially negotiations were held directly between the developer and the landowners, with the council becoming involved from December 2021 onwards.

38.    The developer’s timeline of attempts to negotiate access and address the impacted owner’s requirements as set out in the No.8 Engineering Ltd letter (on behalf of Frost (number 2) Family Trust) is detailed in Attachment C – facilitation report. Frost (number 2) Family Trust is the impacted owners and this letter sets out in detail the documents requirements for the impacted owners to consider agreeing access for construction.

39.    The council has attempted to engage with the landowners to offer advice on the proposed works and broker an agreement, the details of which can be found in Attachment C –facilitation report. These attempts were unsuccessful in reaching an agreed outcome.

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


 

Table 2. Summary of objections

Objection points

Response from Healthy Waters

The notice fails to comply with the statutory requirements and is ‘ultra vires’ the provisions of section 181 (3) (b) of the Local Government Act 2002 as the Notice fails to:

·    Adequately describe the works proposed to be constructed on or under the affected land,

·    Adress the affects to the affected land of the works,

·    Address the consequential scope of works and timeline to limit the impact of the Works on the affected land during the construction of the Works,

·    Address the consequential scope of works and timeline to restore the affected land to the same good order and condition of the affected land prior to the construction of the works, and

·    Address the hazards and health and safety issues.

·    Include the plan required by section 181 (3) (b) of the Local Government Act showing how the Works affect the land and buildings on the affected land.

A Notice of Intention to Do Works was issued under section 181 of the Local Government Act 2002 to the impacted owners. The notice has addressed the requirements of section 181 (3) of the Local Government Act 2002 as seen in Attachment D. Further information can be provided to the impacted owners subject to the committee’s decision.

The notice fails to provide with respect to the affected land the following:

·    Existing site and landscaping plan,

·    Baseline pre-work photographic survey,

·    Demolition and excavation plan

·    Proposed site and landscaping plan addressing the affects

As access has been declined, detailed images were unable to be taken. These images will be captured, subject to the committee's approval to proceed under Section 181, and before construction commences.

Proposed landscaping is to reinstate the site to the existing, pre-works state, which was communicated to the impacted owners.

Injurious Affection:

The owner of the affected Land gives notice reserving their rights with respect to compensation for injurious affection to the Affected Land arising from the Works, and in particular in relation to the affects to:

·    the retaining wall and fence

·    the pohutukawa tree and its root system

·    the public stormwater manhole lid

·    the removal of public manhole

·    the concrete picture frame garden border

·    the ground cover

·    the buried pop-up lawn sprinkler system

·    the foliage and/or plants, and

·    the amenity development potential of the affected land.

Injurious affection can be applied for up to two years after the completion of the stormwater works. The claim can be made by the owners under the Public Works Act 1981. Any damage would be repaired as part of the works.

 

 

Recommended stormwater management option

41.    Staff recommend that construction of the proposed stormwater works proceed at 20A William Denny Avenue as per option one in this report.

42.    The works are necessary to enable development at 18 William Denny Avenue and to meet the council’s stormwater standards. Works are expected to take up to two weeks to complete, and staff will work with the landowners to ensure minimal disruption occurs.

Tauākī whakaaweawe āhuarangi

Climate impact statement

43.    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.

44.    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.

45.    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

46.    Watercare and Auckland Transport assets will not be impacted by the proposed works if option one is undertaken. Option three will require consultation with Auckland Transport and Watercare.

47.    The pipe once constructed will be vested in the council and will form part of the public stormwater network to be maintained by Healthy Waters.

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

Local impacts and local board views

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

Tauākī whakaaweawe Māori

Māori impact statement

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

50.    Council staff notified iwi representatives of the proposed project through Healthy Water’s monthly email of all active Healthy Waters projects. Iwi representatives were asked to signal whether they would like to be engaged on this project, however, no feedback has been received from iwi to date.

51.    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

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

53.    The council will be responsible for any proven injurious affection to private land pursuant to section 181(6) of the Local Government Act 2002, and the Public Works Act 1981. The likelihood of an injurious affection claim being brought is considered medium, see Attachment A – approved business case.  As part of the works costs the developer will be required to supply to the council a bond to remain in place for two years following completion of the works. This will cover any potential claim by the landowners for injurious affection.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

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

Table 3. Risks and mitigations arising from Option one: crossing land at 20A William Denny Avenue

Risk

Likelihood and consequence

Mitigation

Legal risk – objectors argue that this is in fact a private pipe and Auckland Council ought to use section 460 of the Local Government Act 1974 instead of section 181 Local Government Act 2002.

Likelihood: Low

Consequence: Medium

The pipe will be vested in the council once constructed and will form part of the public stormwater system which the council is responsible for maintaining. It is being built to the council’s standards for public stormwater infrastructure and will serve a wider catchment as the area develops further.

 

 

Financial risk – if the landowner appeals the Regulatory and Community Safety Committee’s decision, the council may become liable for the cost of defending a District Court case.

Likelihood: Low

Consequence: Medium

Given that the Regulatory and Community Safety Committee and District Court’s decision-making discretion is limited only to questions of the works being necessary and compliance with legal process, and not matters of compensation, it is considered unlikely that an appeal would be brought. Even if it was, the risk of the council losing on appeal is considered low, due to the works being necessary, and the section 181 process being followed correctly.

If the landowners are unsuccessful in any legal challenge, they may be liable to pay court costs.

 

 

 

Compensation the landowners could seek injurious affection (if evidenced) through the Land Valuation Tribunal, arguing that the public works have reduced the value of their property.

Likelihood: Medium

Consequence: Low/Medium

The owners of the affected land gives notice reserving their rights with respect to compensation for injurious affection in their objection. The potential for an injurious affection claim is therefore considered medium in this case. The anticipated value of any such claim is considered low/medium for the following reasons:

·    The proposed pipe does not involve the taking of any land.

·    The area affected by the works is largely a concrete footpath. The access to the existing public manhole and pipe can largely be gained from the development property. The house is sufficiently distant from the works.

·    The proposed methodology will result in minimal excavation around the manhole and pipe resulting in a small area being impacted by the works that will be reinstated to its current condition.

·    The key concerns raised by the impacted owners (including impacts on retaining wall, fence, vegetation), will be reinstated to their current condition.

·    The applicant will be required to provide to council a bond sufficient to cover any potential claim for injurious affection prior to the works commencing.

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

Infrastructure risk – low quality assets being vested to the council.

Likelihood: Low

Consequence: Medium

The work will be undertaken by an approved council contractor who will have in place sufficient insurance to cover the risk of failure and in compliance with the engineering consent.

Ngā koringa ā-muri

Next steps

55.    If the Regulatory and Community Safety Committee determines to proceed with the project (under Schedule 12 clause 1(e)(ii)), the next step will be to notify the landowners in writing of the council’s intention to proceed with the works.

56.    The landowners have up to 14 days to lodge a further appeal to the District Court. If this occurs, then Legal Services will support council in this process.

 

 

 

 

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Approved business case

 

b

Objection letter

 

c

Facilitation report

 

d

Statutory notice

 

     

Ngā kaihaina

Signatories

Authors

Hana Perry - Relationship Advisor

Emma Cowie-Dixon - Principal Advisor

Authorisers

Barry Potter - Director Infrastructure and Environmental Services

Craig Hobbs - Director Regulatory Services

 

 


Regulatory and Community Safety Committee

07 November 2023

 

Objection to proposed stormwater works at 40 Mellons Bay Road

File No.: CP2023/14687

 

  

 

Te take mō te pūrongo

Purpose of the report

1.      To hear and determine an objection to proposed stormwater works at 40 Mellons Bay Road pursuant to section 181 of the Local Government Act 2002.

Whakarāpopototanga matua

Executive summary

2.      A developer has obtained approval from the council to connect a new development at 24 Mellons Bay Road to the existing public stormwater manhole that is located on the neighbouring property at 44 Mellons Bay Road.

3.      The proposed infrastructure works include extending the existing stormwater pipeline from 44 Mellons Bay Road to 24 Mellons Bay Road though the rear yards of 24, 26, 36, 38, 40 and 44 Mellons Bay Road. The proposed methodology for the works involves directional drilling and open trenching for the new manholes, subject to confirmation by the contractor, see Attachment A approved engineering plans. The work is estimated to take up to three weeks. Once constructed, this pipe will become a public stormwater asset vested in the council.

4.       All affected owners granted access to their property for the works except the owners of 40 Mellons Bay Road, who have refused. Council-led efforts to facilitate an agreement have been unsuccessful. The pipe’s length through 40 Mellons Bay Road is 18 metres out of a total pipe length of 63 metres.

5.      A site inspection and assessment for the pipe considered the following alternative options:

·        option one to extend the public network from 44 Mellons Bay Road (recommended            option)

·    option two to extend the public network from Towbridge Place

·    option three to provide a connection via stormwater kerb outlet on Mellons Bay Road

·    option four to do nothing.

6.      The council has determined that the works constitute necessary public stormwater improvements. The council has issued a notice under section 181(2) of the Local Government Act 2002, informing the landowners of its intention to construct the works as a council project.

7.      The landowners of 40 Mellons Bay Rd have lodged a written objection to the works, stating the following:

·    the proposed development at 44 Mellons Bay Road (unrelated development) will block the sea view of 40 Mellons Bay Road and requested a land covenant by council to protect views

·    they are unsure of the compensation for injurious affection

·    their concerns that an existing earthenware wastewater pipe could be damaged due to heavy vehicles and are unsure of any processes to address this

·    subdivisions are seen as an unsustainable solution for Auckland’s housing issues, causing significant traffic problems in the surrounding area, see Attachment B objection letter and council response.

8.      If the Regulatory and Community Safety Committee determines that the works should proceed, construction will commence within three months subject to the appointment of a contractor and weather conditions. The pipe will then be constructed by the council, with costs of the works to be paid for by the developer upfront.

9.      It is proposed that the pipe will be installed by trenchless method, to minimise disruption to the property. Minor excavations are required to install the manholes which will be located on the properties where owners have granted access.

10.    This report recommends that the Regulatory and Community Safety Committee endorse the proposed public stormwater works at 40 Mellons Bay Road to manage the stormwater effects of the approved development at 24 Mellons Bay Road.

11.    The construction methodology is subject to confirmation by the contractor and engineer.

12.    All affected property owners have been informed that they have the right to claim injurious affection (if established) under the Public Works Act 1981.

Ngā tūtohunga

Recommendation/s

That the Regulatory and Community Safety Committee:

a)      whakaae / agree to hear and determine the objections by the owners of 40 Mellons Bay Road according to clause 1(e) of Schedule 12 of the Local Government Act 2002.

b)      whakaae / agree that the council will proceed with the extension of the public stormwater network from 44 Mellons Bay Road via 40, 38, 36 and 26, to 24 Mellons Bay Road, as shown in Attachment A – approved engineering plans, and according to clause 1(e) of Schedule 12 of the Local Government Act 2002.

Horopaki

Context

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

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

15.    Such works require either the prior written consent of the owner of the land, or that the council follows the process set out in Schedule 12 of the Local Government Act 2002.

16.    Schedule 12 requires that affected owners and occupiers are provided with a description of the proposed works, including plans, and are given the opportunity to object to the works within one month of notification.

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

Enabling stormwater management on 24 Mellons Bay Road

18.    A developer has been granted resource consent by Auckland Council’s Regulatory Services department to subdivide a property at 24 Mellons Bay Road. A condition of that resource consent is that the new development connects to the public stormwater system.

19.    The developer has obtained engineering approval to connect the subdivision to the existing public stormwater network on 44 Mellons Bay Road, see Attachment A. The connecting pipe will cross under five properties being 26, 36, 38, 40 and 44 Mellons Bay Road. Access consent was obtained by the developer from all impacted owners excluding the owners of 40 Mellons Bay Road.

20.    It is proposed that a 63 metre length of the subject 225-diameter pipe is constructed using a trenchless method, which involves drilling from 24 Mellons Bay Road, to a new manhole on 44 Mellons Bay Road. The length of pipe at 40 Mellons Bay Rd will be 18 metres. The pipe will be laid in the rear yard of impacted properties, close to the property boundary. Private stormwater drainage at the affected property could be connected to this pipe at later stage.

21.    Upon completion of the works, the pipes and manholes will be vested in Auckland Council as a public stormwater asset to be owned and maintained Healthy Waters.

Objections received from landowner at 40 Mellons Bay Road

22.    The owners of 40 Mellons Bay Road have refused to allow the developer access to the property for the works. The developer applied to the council to provide facilitation services to help reach an agreement with the landowners.

23.    The council staff assessed the proposed pipe installation and determined that the works are necessary public works and qualify for a council project under the powers of the Local Government Act 2002, which provides for public works to be undertaken on private land without the owner’s consent. Facilitation sessions commenced in September 2021 however, no agreement has been reached to date.

24.    The council issued notices to the affected properties about its intention to carry out the works under section 181 of the Local Government Act 2002, dated 29 August 2023.

25.    Following the issue of this notice, the council has continued to communicate with the landowners, however it has not been possible to reach an agreement.

26.    Pursuant to schedule 12 of the Local Government Act 2002, the landowners had until 29 September 2023 to formally object to the section 181 notice. The owners of 40 Mellons Bay Road lodged their objection on 26 September 2023.

Tātaritanga me ngā tohutohu

Analysis and advice

27.    The council is empowered to construct works on private land that it considers necessary for stormwater drainage. When determining the best practical option, the council looks at a range of possible options to achieve the required stormwater outcomes for the public good, and at the same time, to carefully balance any impacts on individual property owners.

28.    The council analysed four alternative alignments for providing stormwater services to the development at 24 Mellons Bay Road, see Attachment C stormwater pipe alignment options.

29.    These options are:

·  option one to extend the public network from 44 Mellons Bay Road (recommended      option)

·  option two to extend the public network from Towbridge Place

·  option three to provide a connection via stormwater kerb outlet on Mellons Bay Road

·  option four to do nothing.

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


 

Table 1. Analysis of alignment options against various criteria

 

Option one

44 Mellons Bay Road (shown in yellow in Attachment C)

Option two

Towbridge Place (shown in blue in Attachment C)

Option three

Stormwater kerb outlet (shown in red in Attachment C)

Option four

Do nothing

Significance

Interference with existing services

Minor

Medium

 

Medium

 

N/A

Medium

Disruption to property owners

Minor

Medium

 

None

 

N/A

High

Cost

$

$$$

$$

N/A

Medium

Route to existing stormwater network

Most direct

63 meters

Least direct

118 meters

Less direct

87 metres

N/A

Low

Access for future maintenance

Good

Good

Good

N/A

Medium

Duplication of existing stormwater infrastructure

0%

 

0%

N/A

N/A

Medium

Impact on development potential

Minor

Minor

None

N/A

Medium

Constructability risk

Minor

Major

Medium

N/A

High

Dependent on pumping

No

No

Yes

N/A

 

Compliance with stormwater code of practice

Yes

Yes

No

N/A

High

 

Most positive

Moderately positive

Moderately negative

Most negative

Key


Analysing options for stormwater management on 24 Mellons Bay Road

30.    Option two would require an extensive amount of pipe work which is impractical due to the required length (least direct option) and contains a higher constructability risk in comparison with the preferred option.

31.    Option three would require a pump and stormwater tank as the property is situated below the kerb outlet. The Stormwater Code of Practice does not support pumping as it increases a substandard approach with an ongoing risk of flooding.

32.    The council also considered option four to do nothing. This would involve the council walking away from the situation and leaving the developer to continue to negotiate with the owner. This option is not supported, as it means the developer is likely to pursue either options two or three. As described above, these options would result in a substandard outcome. 

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

·        the route does not interfere with any existing services

·        the works does not affect any existing structures on the landowners’ properties, resulting in minimal disturbance

·        the land proposed to be crossed is near property boundaries and would not interfere with future development

·        the pipe route is the most practical and direct to reach the connection point

·        the route does not duplicate existing stormwater infrastructure

·        the route provides for future servicing and growth on several properties, including the objector’s property.

34.    In addition to the above factors, Healthy Waters engineers believe that option one can be constructed using a trenchless method, which would have minimal impact on 40 Mellons Bay Road

Negotiating with the landowners

35.    Initial negotiations were held directly between the developer and the landowners in early 2021, with the formal council facilitation commencing in September 2021 and concluding in December 2021.

36.    The council has attempted to engage with the landowners, beginning on the 21st of September 2021, seeking to address concerns raised regarding the proposed works and seeking to obtain a voluntary access agreement without success. See facilitation consultation summary in Attachment D.

37.    The objection letter and the council’s response are shown in Attachment B.

Summary of objections received

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

Table 2. Summary of objections

Objection points

Response from Healthy Waters

 

Sea views – concerns that a potential subdivision at 44 Mellons Bay Road (unrelated development) will obscure 40 Mellons Bay Road’s sea view and request for land covenant to protect views.

 

This concern is a resource consent matter and there is no ability for council to require a covenant.

Injurious affection process unsure of injurious affection process and the levels of compensation (particularly in relation to possible damage of a wastewater pipe in the area).

This concern relates to the owners ability to claim compensation for injurious affection and does not directly relate to the council’s determination that the stormwater works are ‘necessary.’ Injurious affection can be applied for up to two years after the completion of the stormwater works. The claim could be made by the owners under the Public Works Act 1981. The owners have been advised to seek legal advice on this matter prior to lodging a claim. The appointed contractors will ensure that the works are done without damaging any other services, including wastewater. Any damage would be repaired as part of the works.

Traffic congestion there is already traffic in the surrounding area and more developments will worsen the issue.

This concern is a resource consent matter, and it is outside the scope of the proposal to undertake public drainage works.

Recommended stormwater management option

39.    Staff recommend that construction of the proposed stormwater works proceed at 40 Mellons Bay Road as per option one in this report.

40.    The works are necessary to enable development at 24 Mellons Bay Road and to meet the council’s stormwater requirements. Works are expected to take up to three weeks to complete, and council staff will work with the contractor and landowners to ensure minimal disruption occurs.

Tauākī whakaaweawe āhuarangi

Climate impact statement

41.    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.

42.    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.

43.    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

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

45.    The pipe once constructed will be vested in the council and will form part of the public stormwater network to be maintained by Healthy Waters.

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

Local impacts and local board views

46.    The Howick 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

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

48.    Council staff notified iwi representatives of the proposed project through Healthy Water’s monthly email of all active Healthy Waters projects. Iwi representatives were asked to signal whether they would like to be engaged on this project, however, no feedback has been received from iwi to date.

49.    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

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

51.    The council will be responsible for any proven injurious affection to private land pursuant to section 181(6) of the Local Government Act 2002, and the Public Works Act 1981. The likelihood of an injurious affection claim being brought is considered low, see Table 3. As part of the works costs the developer will be required to supply to the council a bond to remain in place for two years following completion of the works. This will cover any potential claim by the landowners for injurious affection.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

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

Table 3. Risks and mitigations arising from Option one: crossing land at 40 Mellons Bay Road

Risk

Likelihood and consequence

Mitigation

Legal risk – Objectors argue that this is in fact a private pipe and Auckland Council ought to use section 460 of the Local Government Act 1974 instead of section 181 Local Government Act 2002.

Likelihood: Low

Consequence: Medium

The pipe will be vested in the council once constructed and will form part of the public stormwater system which the council is responsible for maintaining. It is being built to the council’s standards for public stormwater infrastructure and will serve a wider catchment as the area develops further.

Financial risk – If the landowner appeals the Regulatory and Community Safety Committee’s decision, the council may become liable for the cost of defending a district court case.

Likelihood: Low

Consequence: Medium

Given that the Regulatory and Community Safety Committee and District Court’s decision-making discretion is limited only to questions of the works being necessary and compliance with legal process, and not matters of compensation, it is considered unlikely that an appeal would be brought. Even if it was, the risk of the council losing on appeal is considered low, due to the works being necessary, and the section 181 process being followed correctly.

If the landowner is unsuccessful in any legal challenge, they may be liable to pay court costs.

Compensation the landowner could seek injurious affection (if evidenced) through the Land Valuation Tribunal, arguing that the public works have reduced the value of their property.

Likelihood: Medium

Consequence: Medium

The potential for an injurious affection claim is considered medium in this case for the following reasons.

·    The proposed pipe does not involve the taking of any land.

·    The area affected by the works is sufficiently distant from the buildings. The existing pipe access is readily available within 44 Mellons Bay Road.

·    The proposed trenchless methodology may be affected by the existing wastewater lateral connections and private wastewater pipes which could result in clashes and need for excavations within large trees and shrubs. Reinstatement of the impacted area shall be agreed with the owners. Further investigations and an arborist report are needed to confirm the installation methodology and potential impacts on the trees.

·    The developer will be required to provide to the council a bond sufficient to cover any potential claim for injurious affection prior to the works commencing.

Infrastructure risk - Low quality assets being vested to the council.

Likelihood: Low

Consequence: Medium

·    The works will be undertaken by an approved council contractor who will have in place sufficient insurances to cover the workmanship.

Ngā koringa ā-muri

Next steps

53.    If the Regulatory and Community Safety Committee determines to proceed with the project (under Schedule 12 clause 1(e)(ii)), the next step will be to notify the landowner in writing of the council’s intention to proceed with the works. The work is proposed to be undertaken within the next three months.

54.    The landowner has up to fourteen days to lodge a further appeal to the District Court. If this occurs, then Legal Services will support council in this process. If no appeal is lodged, the council would look to proceed with the works in the coming months.

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Approved engineering plans

 

b

Objection letter and council responce

 

c

Stormwater pipe alignments options

 

d

Consultation

 

     

Ngā kaihaina

Signatories

Authors

Hana Perry - Relationship Advisor

Emma Cowie-Dixon - Principal Advisor

Authorisers

Barry Potter - Director Infrastructure and Environmental Services

Craig Hobbs - Director Regulatory Services

 

 


Regulatory and Community Safety Committee

07 November 2023

 

Objection to stormwater works at 391A, 393A and 395A Mount Albert Road, Mount Roskill

File No.: CP2023/14688

 

  

Te take mō te pūrongo

Purpose of the report

1.      To hear and determine three objections to proposed stormwater works at 391A, 393A and 395A Mount Albert Road, Mount Roskill, pursuant to section 181 of the Local Government Act 2002.

Whakarāpopototanga matua

Executive summary

2.      A developer has obtained approval from the council to connect a new development at 387 and 389 Mount Albert Road to the public stormwater manhole located at 395A Mount Albert Road via the neighboring properties at 391A and 393A Mount Albert Road. 

3.      The proposed infrastructure works include extending the existing stormwater pipeline from an existing manhole located at the rear of 395A Mount Albert Road through the rear yards/shared driveway of 393A and 391A Mount Albert Road. The proposed methodology for the works is open trenching, see Attachment A – engineering planning approval. The work is estimated to take up to 14 working days. Once constructed, this pipe will be vested in the council as a public stormwater asset.

4.      The owners of 391A, 393A and 395A Mount Albert Road have refused the developer access to their property for this purpose. Council-led efforts to facilitate an agreement have been unsuccessful.

5.      A site inspection and assessment for the pipe considered the following alternative options:

·        option one: extending the public network from 395A Mt Albert Road (recommended option)

·     option two: pumping water uphill to Mount Albert Road

·     option three: directing stormwater runoff to a soakage pit

·     option four: do nothing.

6.      The council has determined that the works constitute necessary public stormwater works. It has issued a notice under section 181(2) of the Local Government Act 2002 informing the landowners of its intention to construct the works as a council project.

7.      The landowners of 391A and 393A have lodged written objections to the works, stating the following.

·    The proposal is a significant impact, including preventing access necessary for medical reasons, damage to driveway and services, and construction related health effects.

·    Driveway access must be always available. Request guarantees over the duration of works and remediation.

·    A request for substantive bonds and penalties for damages left unrepaired.

·    Concern that the construction methodology will cause damage to their properties.

·    Prior consultation is required demonstrating safeguards are in place to assure that there will be no mid to long-term damage to property.

·    Concern regarding the weight and size of machinery used, where the machinery will be parked overnight and hours of operation.

·    Request for detailed works plans.

8.      In addition to the above, the landowners of 391A Mount Albert Road object on the following grounds.

·    That any interruption to utilities could jeopardise the health and wellbeing of the landowner.

·    That private works taking place on the property during November, December and January must take priority, see Attachment B – objection letter 391A Mount Albert Road.

9.      The landowners of 395A Mount Albert Road have lodged a written objection to the works, on the following grounds.

·    Intensification will exasperate already flood prone property.

·    They believe the council has a responsibility to keep their property safe, see Attachment B – objection letter 395A Mount Albert Road.

10.    If the Regulatory and Community Safety Committee determines that the works should proceed, construction will commence as soon as possible (weather dependent). It is proposed that the pipe will be installed by open trenching. The works will take approximately 14 days to complete.

11.    This report recommends that the Regulatory and Community Safety Committee endorse the proposed public stormwater works at 391A, 393A and 395A Mount Albert Road, to manage the stormwater effects of the approved development at 387 and 389 Mount Albert Road.

12.    The construction methodology is subject to confirmation by the contractor and engineer.

13.    It has been explained to all the affected property owners that they have the right to claim injurious affection (if established) under the Public Works Act 1981.

 

Ngā tūtohunga

Recommendation/s

That the Regulatory and Community Safety Committee:

a)      whakaae / agree to hear and determine the objections by the owners of 391A, 393A and 395A Mount Albert Road, according to clause 1(e) of Schedule 12 of the Local Government Act 2002

b)      whakaae / agree that the council will proceed with the extension of the public stormwater network from 389 Mount Albert Road, via 391A and 393A Mount Albert Road to 395A Mount Albert Road (as shown in Attachment A to the agenda report), according to clause 1(e) of Schedule 12 of the Local Government Act 2002.

Horopaki

Context

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

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

16.    Such works require either the prior written consent of the owner of the land, or that the council follows the process set out in Schedule 12 of the Local Government Act 2002.

17.    Schedule 12 requires that affected owners and occupiers are provided with a description of the proposed works, including plans, and are given the opportunity to object to the works within one month of notification.

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

Enabling stormwater management on 387 and 389 Mount Albert Road

19.    A developer has been granted resource consent by Auckland Council’s regulatory department to subdivide a property at 387 and 389 Mount Albert Road. A condition of that resource consent is that the new development connects to the public stormwater system.

20.    The developer has obtained engineering approval to connect the subdivision to the existing public stormwater manhole located on 395A Mount Albert Road, see Attachment A. The connecting pipe will extend from 389 Mount Albert Road, via the rear yard of 391A Mount Albert Road and along part of the shared driveway of 391A and 393A Mount Albert Road.

21.    It is proposed that a 35 metre length 225mm diameter pipe is constructed using an open trench method.

22.    Two existing catchpits at the rear of 391A and 393A Mount Albert Road are to be relocated by approximately 400mm and 250mm respectively.

23.    Two new 100mm connections will be provided to 391A and 393A Mount Albert Road to allow overflow from soak hole into the new pipe.

24.    The above ground stormwater tank located at the rear of 391A Mount Albert Road will be temporarily removed during construction of the new pipe. The tank will be reinstated after completion of the works.

25.    Excavation of approximately 33 square metres of concrete within 391A and 393A Mount Albert Road, and approximately four square metres of concrete within 395A Mount Albert Road, will be fully reinstated upon completion of the works. The expected duration to carry out the work is approximately 14 days.

26.    The new pipe will be vested in Auckland Council as a public stormwater asset to be owned and maintained by Healthy Waters once it is connected to the stormwater network.

Objections received from landowners at 391A, 393A, 395A Mount Albert Road

27.    The owners of 391A, 393A and 395A Mount Albert Road have refused to allow the developer to connect to the stormwater network via their properties. The developer applied to the council to provide facilitation services to help reach an agreement with the landowner.

28.    Facilitation sessions commenced in December 2022, however, no agreement was reached. The council then analysed the developer’s works and determined that the works are necessary public works, and that they would undertake the works itself as a council project under the powers of the Local Government Act 2002. This enables public works to be undertaken on private land without the owner’s consent, provided the requirements of the Act are met.

29.    The council issued a notice of their intention to construct the works to the affected landowners under section 181 of the Local Government Act 2002 on 1 September 2023.

30.    Following the issue of this notice, the council has continued to communicate with the landowners, however it has not been possible to reach an agreement.

31.    Pursuant to schedule 12 of the Local Government Act 2002, the landowners had until 1 October 2023 to formally object to the section 181 notice. On 27 September 2023, three objections were received.


 

Tātaritanga me ngā tohutohu

Analysis and advice

32.    The council is empowered to construct works on private land that it considers necessary for stormwater drainage. When determining the best practical option, the council looks at a range of possible options to achieve the required stormwater outcomes for the public good, and at the same time, to carefully balance any impacts on individual property owners.

33.    The council analysed four alternative alignments for connecting the development at 387 and 389 Mount Albert Road to the public stormwater system, see Attachment C alternative alignments.

34.    These options were:

·     option one: extending the public network from 395A Mt Albert Road (recommended          option)

·     option two: pumping water uphill to Mount Albert Road

·    option three: directing stormwater runoff to a soakage pit

·    option four: do nothing.

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

Table 1. Analysis of alignment options against various criteria

 

Option 1

preferred

Option 2

Option 3

Option 4

Significance

Interference with existing services

Minor

High

None

N/A

Medium

Disruption to property owners

Medium

None

None

N/A

High

Cost

$

$$

$

N/A

Medium

Route to existing stormwater network

Most direct

35 metres

Least direct

56 meters

None

N/A

Medium

Duplication of existing stormwater infrastructure

0%

 

0%

None

N/A

Medium

Number of properties to be served by pipe

14 within development plus surrounding sites

14 within development, plus surrounding sites

None

0

 

Ability to absorb Stormwater

N/A

N/A

High

N/A

High

Compliance with stormwater code of practice

Yes

No

No

N/A

High

Key

Most positive

Moderately positive

Moderately negative

Most negative


Analysing options for stormwater management on 387 and 389 Mount Albert Road

35.    Option two is not supported as it would involve pumping water uphill to Mount Albert Road, which is in contravention of the stormwater code of practice. It is also the least direct and most costly.

36.    Option three is not recommended as it has been determined that the area’s soils are not suitable and would be unable to manage the quantity of stormwater runoff.

37.    The fourth option, do nothing, would involve the council walking away from the situation and leaving the developer to continue to negotiate with the owner. This option is not supported, as it means the developer is likely to pursue either options two or three. This may result in the council inheriting surplus stormwater infrastructure which it must maintain as part of the public network, which may not comply with the Auckland Council Stormwater Code of Practice. It also increases the likelihood of 387 and 389 Mt Albert Road discharging to the kerb in lieu of a better solution and in contravention of its resource consent.

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

·    The location of the works does not affect any major existing structures on the landowners’ properties; however, an above ground stormwater tank located at the rear of 391A Mount Albert Road will be temporarily removed during construction and reinstated after completion of the works.

·    The land proposed to be crossed is primarily a shared driveway and not land that could be developed for housing or other structures.

·    The pipe route is the most practical and direct to reach the connection point.

·    The route does not duplicate existing stormwater infrastructure.

Negotiating with the landowners

39.    Initial negotiations were held directly between the developer and the landowners in February-March 2017, with formal council facilitation commencing in December 2022 and concluding in March 2023.

40.    The council has attempted to engage with the landowners seeking to address concerns raised regarding the proposed works and seeking to obtain a voluntary access agreement without success. Correspondence between the council’s negotiator and the impacted parties is shown in Attachment D consultation.

41.    The council has since received objection letters from 391A, 393A and 395A Mount Albert Road – See Attachment B.

Summary of objections received

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

  Table 2. Summary of objections

Objection Points

Response from Healthy Waters

395A Mount Albert Road

Increased input into the stormwater system will put more pressure on drains which already overflow and flood the property during heavy rainfall events.

Design and construction of infrastructure will be in accordance with council’s stormwater standards to mitigate effects of additional flows into the public network.

391A & 393A Mount Albert Road

The owners require 24/7 access along the full length of the driveway for vehicles (including ambulances) due to steepness of the driveway and the owner’s medical issues.

The council’s contractor will ensure the driveway will not be blocked during construction so that access is available for vehicles. 

The owners are concerned that the works will cause damage to their properties.

The owners have the right to make an injurious affection claim under the Public Works Act 1981.

The owners require assurances that utilities such as internet, telephone and power are uninterrupted for the duration of the works.

Prior to commencing works the council’s contractor will identify the location of underground services in the alignment of the proposed pipe (including internet, power, telephone, water pipes) to ensure they are not disconnected throughout construction.

The owners require written guarantees detailing the duration of works and the date the driveway will be restored to full functionality.

The council’s contractor will provide a schedule of works including timing prior to commencing work.

The owners require assurances concerning the timelines for rectifying any post-completion issues and the certification process by the Council.

On completion of the works Auckland Council require the contractor to obtain a re-instatement release form from the property owners.

Auckland Council have a 12 month defect liability period once construction is complete.

Requesting $100,000 bond two weeks prior to commencement of works, with any delays incurring penalties of $2,000 per day. Any damage left unrepaired or loss of utilities during construction will be deducted from the bond. The bond will be held for six months post works and council certification.

The developer is required to supply to the council a bond to remain in place for two years following completion of the works. This will cover any potential claim by the landowners for injurious affection.

Requesting more information on construction methodology, including the following:

·    plans showing marked up trenching zones and storage areas for fill

·    where machinery will be parked

·    vibration management plan (pre/post work fatigue assessments)

·    waste management plan

·    noise management plan.

·    risk assessment and mitigation plan.

This information will be provided to the landowner by the council’s contractor prior to commencement of works. The contractor will be required to assess these control these effects.

Private works taking place on 391A Mount Albert Road during November, December 2023 and January 2024 must take priority.

The council’s contractor will to be made aware of these dates and schedule works accordingly.

Recommended stormwater management option

43.    Staff recommend that construction of the proposed stormwater works proceed at 391A, 393A and 395A Mount Albert Road as per option one in this report.

44.    The works are necessary to enable development at 387 and 389 Mount Albert Road and to meet the council’s stormwater standards. Works are expected to take up to 14 days to complete, and staff will work with the landowners to ensure minimal disruption occurs.

Tauākī whakaaweawe āhuarangi

Climate impact statement

45.    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.

46.    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.

47.    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

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

49.    The developer has obtained works over approval by Watercare, which is required when construction is close to a wastewater pipe and may cause damage. This will need to be reviewed to confirm that the existing wastewater network has been located to confirm the distance between the two pipes.

50.    The pipe once constructed will be vested in the council and will form part of the public stormwater network to be maintained by Healthy Waters.

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

Local impacts and local board views

51.    The Puketāpapa 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

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

53.    Council staff notified iwi representatives of the proposed project through Healthy Water’s monthly email of all active Healthy Waters projects. Iwi representatives were asked to signal whether they would like to be engaged on this project, however, no feedback has been received from iwi to date.

54.    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

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

56.    The council will be responsible for any proven injurious affection to private land pursuant to section 181(6) of the Local Government Act 2002, and the Public Works Act 1981. The likelihood of an injurious affection claim being brought is considered low however a claim arising due to the impact of the works on the landowners’ health issues is considered high particularly for 391A Mount Albert Road, see Table 3. This risk has been assessed and mitigation/avoidance methods have been identified as outlined in Table 2.

57.    As part of the works costs, the developer will be required to supply to the council a bond to remain in place for two years following completion of the works. This will cover any potential claim by the landowners for injurious affection.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

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

Table 3. Risks and mitigations arising from option one: crossing land at 391A, 393A and 395A Mount Albert Road

Risk

Likelihood and consequence

Mitigation

Legal risk – third party owner argues that this is in fact a private pipe and Auckland Council ought to use section 460 of the Local Government Act 1974 instead of section 181 Local Government Act 2002.

Likelihood: Low

Consequence: Medium

The pipe will be vested in the council once constructed and will form part of the public stormwater system which the council is responsible for maintaining. It is being built to the council’s standards for public stormwater infrastructure and will serve a wider catchment as the area develops further.

Financial risk – the council is liable for any injurious affection for works undertaken on the third-party owner’s land.

Likelihood: Low

Consequence: Medium

The potential for an injurious affection claim is considered low in this case for the following reasons:

·    the proposed pipe does not involve the taking of any land

·    the area affected by the works is primarily a concrete driveway shared by two owners. The residential homes are sufficiently far enough from the works that the impact will be minor, however it is noted that access and services are of great concern to third party owner one.

·    the council’s contractor will ensure the driveway will not be blocked during construction so that access is available for emergency vehicles.    

·    The impacted parts of the driveway and a rainwater tank at 391A Mt Albert Road will be reinstated upon completion of the works.

·    Prior to commencing the works, the council’s contractor will identify the location of underground services in the alignment of the proposed pipe, including internet, power, phone lines, waterpipes and water tank at 391A Mt Albert Road to ensure they are not disconnected throughout construction. This may include pot holing.

·    The developer will be required to provide to the council a bond sufficient to cover any potential claim for injurious affection prior to the works commencing.

Infrastructure risk - low quality assets being vested to the Council

Likelihood: Low

Consequence: Medium

The works will be undertaken by an approved council contractor who will have in place sufficient insurances to cover the risk of failure.

Public relations risk – council has not met the requirements of section 181 of the Local Government Act

Likelihood: medium

Consequence: Medium

Council to provide third party owners with full information about the proposed works and the process under section 181 of the Local Government Act.

 

Infrastructure damage – ability for the council to undertake wastewater works for Watercare

Likelihood: low

Consequence: low

The developer has obtained Works over Approval by Watercare (WO-35479).

Ngā koringa ā-muri

Next steps

59.    If the Regulatory and Community Safety Committee determines to proceed with the project (under Schedule 12 clause 1(e)(ii)), the next step will be to notify the landowner in writing of the council’s intention to proceed with the works. The work is proposed to be undertaken in June 2021.

60.    The landowner has up to 14 days to lodge a further appeal to the District Court. If this occurs, then Legal Services will support council in this process. If no appeal is lodged, the council would look to proceed with the works in late 2021.


 

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Engineering planning approval

 

b

Objection letter A

 

c

Objection letter B

 

d

Alternative alignments

 

e

Consultation

 

     

Ngā kaihaina

Signatories

Authors

Hana Perry - Relationship Advisor

Emma Cowie-Dixon - Principal Advisor

Authorisers

Barry Potter - Director Infrastructure and Environmental Services

Craig Hobbs - Director Regulatory Services

 

 


Regulatory and Community Safety Committee

07 November 2023

 

Determination of Objection against Disqualification of Dog Owner Syrel Prasad

File No.: CP2023/15577

 

  

 

Te take mō te pūrongo

Purpose of the report

1.      To hear and determine the objection by Mr Syrel Prasad against his disqualification to own dogs pursuant to Section 25 of the Dog Control Act 1996 (DCA).

Whakarāpopototanga matua

Executive summary

2.      Mr Prasad is the owner of a 5-year old desexed male American Pitbull Terrier cross named Cheeko. He was also the owner of a 2-year old entire female Staffordshire Bull Terrier cross named Silvia. On 2 July 2022 Mr Prasad surrendered his ownership of Silvia to Auckland Council because he could not afford to keep her.

3.      Section 25(1)(a) and 25(3) of the DCA provide that a territorial authority must disqualify a person from being an owner of a dog for a period not exceeding 5 years if that person commits 3 or more infringement offences (not relating to a single incident or occasion) against the DCA within a continuous period of 24 months.

4.      Between the period 17 May 2022 to 17 January 2023, Mr Prasad was issued with 3 infringement notices (INF N) for failing to control his dogs. Consequently, on 9 August 2023 Animal Management decided to disqualify Mr Prasad from owning dogs for a period of 2 years commencing on 17 January 2023, being the date of the last infringement offence, and ending on 17 January 2025. (Refer Attachment A).

5.      The effect of the disqualification is that Mr Prasad –

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

b)   Must dispose of any dog owned by him.

c)   May not dispose his dog to a person who resides at the same address as him.

6.      Mr Prasad objects to his disqualification on the following grounds (Refer Attachment B):

a)   It would affect him emotionally if he had to dispose of Cheeko.

b)   He is concerned that if Cheeko were to be rehomed, then there would be no bond between Cheeko and his new owner, and that a new owner could use Cheeko for adverse purposes.

c)   He undertakes to comply with his responsibilities as dog owner.

7.      The purpose of disqualifying a person from owning dogs is to –

a)   Prevent re-offending that may cause a nuisance or harm to persons or animals by prohibiting the person from owning dogs,

b)   Serve as a general deterrence to other dog owners, and

c)   Bring home to a dog owner the consequences of their failure to comply with their obligations and responsibilities under the DCA which may cause a nuisance or harm to persons or animals.


 

8.      Section 26 of the DCA provides the right to a disqualified person to be heard in support of their objection to the disqualification. The Regulatory and Safety Committee (the Committee) must hear the objection and decide whether to –

a)   Uphold,

b)   Bring forward the date of termination, or

c)   Immediately terminate the disqualification.

9.      Mr Prasad has the right of appeal to the District Court if he is dissatisfied with the decision of the Committee.

 

Ngā tūtohunga

Recommendation/s

That the Regulatory and Community Safety Committee:

a)      whakaae / agree to hear and determine the objection, and

b)      whakaae / agree to uphold the disqualification of Mr Syrel Prasad for the period of 2 years from 17 January 2023 to 17 January 2025.

 

Horopaki

Context

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

11.    Section 26(3) of the DCA determines that in considering an objection to the disqualification of a person, the 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.

The circumstances and nature of the offences in respect of which Mr Prasad was disqualified

12.    Between the period 24 February 2020 to 4 August 2023 Animal Management has received 9 complaints about Mr Prasad’s dogs.

13.    The complaints are summarized in the table below.


 

Date

RFS

Circumstances of offence

Outcome

24/2/2020

8100582363

Cheeko roaming in busy road creating risk to public

Cheeko observed by officer outside Mr Prasad’s property

Cheeko unregistered

Impounded

INF N 61000226911 issued under s 42 DCA for failing to register dog

Formal warning issued under s 52A DCA for failing to confine dog

Classified as menacing by breed

15/3/2021

8100804001

Cheeko not desexed as required by menacing classification notice

Cheeko and Silvia unregistered

 

INF N 61000307636 issued under s 33EC DCA for failing to comply with menacing classification notice

INF N 61000307628 issued under s 42 for failing to register Cheeko

Formal warning issued under s 42 DCA for failing to register Silvia

5/4/2021

8100817238

Cheeko escaped through open door and bit person on road

Minor injury

Mr Prasad undertook to keep Cheeko on a run

Impounded

INF N 61000312729 issued under s 53(1) for failing to control Cheeko

9/12/2021

8100955152

Silvia escaped through open door and chased child on driveway

Cheeko and Silvia unregistered

INF N 61000352335 issued under s 42 DCA for failing to register Cheeko

INF N 61000352437 issued under s 53(1) DCA for failing to control Silvia

Formal warning under s 42 DCA for failing to register Silvia

17/5/2022

8101051184

Cheeko bit person on neighbour’s property

Minor injury to hand

INF N 61000376069 issued under s 53(1) DCA for failing to control Cheeko

23/5/2022

8101053874

Cheeko at large outside neighbour’s property

Person inside their parked vehicle too scared to alight

INF N 61000377804 issued under s 20(5) DCA for failing to keep dog on leash in public place

28/10/2022

8101145898

Cheeko barking and growling at neighbour

Mr Prasad’s mother had let dog out

INF N 61000414157 issued under s 20(5) DCA for failing to keep dog on leash in public place

17/1/2023

8101197538

Cheeko at large outside neighbour’s property

INF N 61000414157 issued under s 20(5) DCA for failing to keep dog on leash in public place

Warning of possible disqualification or probationary classification

4/8/2023

8101326861

Cheeko at large in public place

Cheeko unregistered

Disqualification

Cheeko registered on 30 August 2023

 

Mr Prasad’s competency in terms of responsible dog ownership

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

15.    He regularly failed to register his dogs.

16.    He failed to address Cheeko’s aggressive behaviour through dog training and dog obedience classes.

Steps taken by Mr Prasad to prevent further offences

17.    Mr Prasad indicated that he would keep Cheeko under supervision and on a run.

Matters advanced by Mr Prasad in support of his objection

18.    Mr Prasad mentions that Cheeko supports him emotionally. Public safety should receive preference over a person’s need for emotional support.

19.    It is expected that Mr Prasad would vet Cheeko’s potential new owners. There are many dog rescue agencies who can assist Mr Prasad in finding a suitable owner for Cheeko.

Tātaritanga me ngā tohutohu

Analysis and advice

20.    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. 

21.    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.  

22.    In the case of a disqualified owner, the purpose is to prevent re-offending by prohibiting the person from owning dogs; to bring home to a dog owner the consequences to their failure to comply with their obligations; and to act as a general deterrent to other dog owners who are lacking responsibility to comply with their obligations.

23.    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.

24.    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.

25.    It was decided to disqualify Mr Prasad for the following reasons:

a)   Mr Prasad’s failure to control and confine his dogs has continued despite being issued with infringement notices.

b)   He was educated on his obligations to keep his dogs confined.

c)   He failed to register Cheeko in time for the 2023 – 2024 financial year despite having been warned that he could be disqualified or placed under probation if he persisted in failing to comply with his obligations.

d)   His repeat offending shows a disregard of his obligations under the DCA.

e)   His dog is a risk to road users because of its roaming and is a risk to people because of its aggressive behaviour.

Tauākī whakaaweawe āhuarangi

Climate impact statement

26.    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

27.    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

28.    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

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

Ngā ritenga ā-pūtea

Financial implications

30.    The decision by the Committee on the disqualification of a dog owner has no financial implications.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

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

Ngā koringa ā-muri

Next steps

32.    The Committee must give Mr Prasad written notice of its decision and the reasons for it as soon as practical.

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Notice of disqualification

 

b

Objection to disqualification

 

     

Ngā kaihaina

Signatories

Author

Chrisna Nortje - Principal Specialist Animal Management

Authorisers

Eleanor Waitoa, Manager Animal Management

James Hassall - General Manager, Licensing and Regulatory Compliance

Craig Hobbs - Director Regulatory Services

 

 


Regulatory and Community Safety Committee

07 November 2023

 

Determination of Objection against Probationary Classification of Dog Owner Grant Howard Baguley

File No.: CP2023/15583

 

  

 

Te take mō te pūrongo

Purpose of the report

1.      To hear and determine the objection by Mr Grant Howard Baguley against his classification as probationary dog owner pursuant to Section 21 of the Dog Control Act 1996 (DCA).

Whakarāpopototanga matua

Executive summary

2.      Mr Baguley is the owner of Otis, a 6-year old desexed male German Short-Haired Pointer, and Mila, a 3-year old desexed female German Short-Haired Pointer.

3.      Section 21(2) of the DCA provides that a territorial authority may classify a person as a probationary owner of dogs if that person commits 3 or more infringement offences (not relating to a single incident or occasion) within a continuous period of 24 months. Section 23 of the DCA determines that the probation period is to run for a period of two years from the date of the last infringement offence unless terminated earlier by the territorial authority.

4.      Between the period 31 July 2021 to 12 October 2022, Mr Baguley was issued with 3 infringement notices for failing to control his dogs under section 53(1) of the DCA . Consequently, on 31 July 2023 Animal Management decided to classify Mr Baguley as a probationary owner. (Refer Attachment A)

5.      The effect of the probationary classification is that Mr Baguley may not register new dogs during the period of classification.

6.      Mr Baguley objects to his classification on the following grounds (Refer Attachment B dated 18 August 2023):

a)   The complainant is reporting the incidents involving Mila and Otis in retaliation for Mr Baguley wanting to sell his property which may result in an intensive housing development.

b)   Infringement notice number 61000336040 for the offending on 31 July 2021 should not have been issued because the chicken that was attacked was feral.

c)   His dogs are not aggressive as alleged by the complainant.

d)   He is making sure that his dogs are not causing a nuisance to the complainant.

7.      The purpose of placing a dog owner under probation is to reduce the likelihood of re-offending by –

a)   educating the dog owner on their obligations under the DCA.

b)   requiring them to undertake a dog owner education programme and/or a dog obedience course.

c)   limiting the number of dogs that they may own.

d)   bringing home to a dog owner the consequences of their failure to comply with their obligations and responsibilities under the DCA.


 

8.      Section 22 of the DCA provides the right to a probationary dog owner to be heard in support of their objection to the classification. The Regulatory and Safety Committee (the Committee) must hear the objection and decide whether –

a)   To uphold, or

b)   To terminate the classification.

Ngā tūtohunga

Recommendation/s

That the Regulatory and Community Safety Committee:

a)      whakaae / agree to hear and determine the objection, and

b)      whakaae / agree uphold the probationary classification of Mr Baguley for the period of 24 months from 12 October 2022 to 12 October 2024.

Horopaki

Context

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

10.    Section 22(3) of the DCA determines that in considering an objection to a probationary classification, the Committee should have regard to the following:

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

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

c)   Any steps taken by the objector to prevent further offences including, but not limited to, the disposal of any dog or fencing of the property on which the dog is kept,

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

e)   Any other relevant matters.

The circumstances and nature of the offences

11.    Between the period 31 July 2021 to 3 July 2023 Animal Management has received 6 complaints about Mr Baguley’s dogs not being under control.

12.    The complaints are summarized in the following table.

Date

RFS

Circumstances of offence

Outcome

31/7/2021

8100883097

Otis attacked a chicken on neighbouring property

Impounding

Infringement notice 61000336040 issued under s 53(1) DCA failing to control Otis

Otis is classified as menacing by deed under s 33A of the DCA

3/12/2021

8100950677

Historical complaint of Mila charging and barking at complainant at neighbouring property on 15/11/2021

Dogs are slipping through automatic gates when in use

Formal warning issued under s 53(1) DCA for failing to control Mila

13/6/2022

8101064416

Otis observed on neighbouring property and outside gate of Mr Baguley’s property

 

Infringement notice 61000381852 issued under s 53(1) DCA for failing to control Otis

12/10/2022

8101334421

Otis observed on neighbouring property

Mr Baguley’s kids had left gate open

Infringement notice 61000407865 issued under s 53(1) DCA for failing to control Otis

30/5/2023

8101285017

Otis and Mila running around on neighbouring property and shared driveway

Video recordings provided of dogs roaming and charging at complainant

 

No written statement provided by complainant

File closed

3/7/2023

8101306281

Otis and Mila running around on  neighboring property

Video recording and photos provided

Infringement notices 61000466270 and 61999466298 issued under s 53(1) DCA for failing to control Mila and Otis respectively

 

Mr Baguley’s competency in terms of responsible dog ownership

13.    Both dogs are registered, microchipped and desexed.

14.    His property is fenced and gated. The inference is that the dogs escape from the property because of the occupants’ carelessness when using the automated gate.

Steps taken by Mr Baguley to prevent further offences, including, but not limited to, the disposal of any dog or fencing of the property on which the dogs are kept

15.    Animal Management has not received any further complaints about the dogs. Mr Baguley may want to address the Committee about steps taken to ensure that the dogs do not escape from his property.

Matters advanced by Mr Baguley in support of his objection

16.    Mr Baguley disputes the circumstances in which Otis attacked and killed the chicken. It remains common cause that Otis had escaped from Mr Baguley’s property and was not under control.

17.    The dogs may not be aggressive by nature but are boisterous. They are a nuisance and cause alarm when they charge at persons. 

Tātaritanga me ngā tohutohu

Analysis and advice

18.    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. 

19.    The criteria for disqualifying a person from owning a dog and the criteria for 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.

20.    Section 21(5) of the DCA determines that the disqualification of a person who fits the criteria must be considered first. The territorial authority is not required to disqualify an errant dog owner if it is satisfied that public safety can be protected by the issue of a probationary classification.

21.    It was decided to not to disqualify Mr Baguley because the probationary classification will reduce the likelihood of re-offending by –

·    educating him on his obligations under the DCA.

·    bringing home to him the consequences of his failure to comply with his obligations and responsibilities under the DCA.

Tauākī whakaaweawe āhuarangi

Climate impact statement

22.    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

23.    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

24.    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

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

25.    <Enter text>

Ngā ritenga ā-pūtea

Financial implications

26.    The decision by the Committee on the classification of a dog owner has no financial implications.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

27.    There are no risks in upholding Mr Baguley’s probationary classification.

Ngā koringa ā-muri

Next steps

28.    The Committee must give Mr Sykes written notice of its decision and the reasons for it as soon as practical.

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Notice of Probationary Owner Classification

 

b

Objection to Probationary Owner Classification

 

     

Ngā kaihaina

Signatories

Author

Chrisna Nortje - Principal Specialist Animal Management

Authorisers

Eleanor Waitoa, Manager Animal Management

James Hassall - General Manager, Licensing and Regulatory Compliance

Craig Hobbs - Director Regulatory Services

 

 


Regulatory and Community Safety Committee

07 November 2023

 

Determination of an objection to a menacing dog classification by Jenna Aimee Smith

File No.: CP2023/15660

 

  

 

Te take mō te pūrongo

Purpose of the report

1.      To hear and consider Mrs Smith’s objection to her dog, Willow, being classified as menacing under section 33A of the Dog Control Act 1996 (DCA).

Whakarāpopototanga matua

Executive summary

2.      Mrs Smith is the joint owner of a 2-year old entire female White Swiss Shepherd dog named Willow.

3.      On 14 June 2023 Willow attacked an Alpaca 0n the neighbour’s property. The attack was unprovoked. The Alpaca sustained a bite wound which warranted veterinary intervention. The complainant’s statement is at Attachment A. A photo of the injury and the vet bill are at Attachment B.

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

5.      On 17 June 2023 Animal Management classified Willow as menacing by deed because it considered that the dog may pose a threat to the safety of other animals (Refer Attachment C).

6.      Where a dog is classified as menacing the owner of the dog must -

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

b)   Within 1 month after service of the notice provide a certificate by a veterinarian that the dog is or has been de-sexed if required by the territorial authority.

7.      In terms of the Auckland Council Policy on Dogs 2029 it is required for a menacing dog to be de-sexed.

8.      Mrs Smith objected to the classification on the basis that the incident was unprecedented because Willow is not an aggressive dog (Refer Attachment D).

9.      Willow may pose a threat to specifically other animals because of the aggressive behaviour exhibited in the attack on the Alpaca.

10.    This threat will be reduced if she is –

a)   muzzled when in public places because any attack or harm to others will be prevented,

b)   de-sexed because it will temper her aggression and reduce the risk she may pose to public safety.

11.    Clause 17 of the Auckland Council Dog Management Bylaw 2019 provides for the review and cancellation of a menacing classifications after 12 months if Mrs Smith –

a)   provides a dog behavioural assessment report on Willow,

b)   has not been issued with infringement notices relating Willow within the preceding 12-month period, and

c)   has obtained a responsible dog ownership licence.

Ngā tūtohunga

Recommendation/s

That the Regulatory and Community Safety Committee:

a)      whakaae / agree to hear and consider Mrs Smith’s objection to her dog, Willow, having been classified as menacing under section 33A of the DCA and

b)      whakaae / agree to uphold Willow’s menacing classification under section 33A of the DCA.

 

Horopaki

Context

Jurisdiction of the Regulatory and Community Safety Committee

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

The Dog Control Act 1996

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

14.    Where a dog is classified as menacing, then the owner of the dog -

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

b)   must within 1 month after service of the notice provide a certificate by a veterinarian that the dog is or has been de-sexed, if required by the territorial authority.

15.    In terms of the Auckland Council Policy on Dogs 2029 it is required for a menacing dog to be de-sexed.

16.    Section 33D(3) explains what the Committee must take into account during their deliberations on whether the objection should be upheld or rescinded. These are –

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

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

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

d)   Any other relevant matters.

Evidence which formed the basis for the classification

17.    On 14 June 2023 Willow attacked an Alpaca on the neighbour’s property. The attack was unprovoked. The Alpaca sustained a bite wound which warranted veterinary intervention.

18.    Animal Management does not have any record of complaints against Willow.

Steps taken by Mrs Smith to prevent any threat to persons or animals

19.    Willow was able to freely leave Mrs Smith’s property. She is now being contained in a fully fenced compound and run when there is no one home to supervise her.

20.    Mrs Smith has not informed Animal Management whether Willow has since this incident been de-sexed.


 

Matters relied upon in support of the objection

21.    Willow may not have shown any aggression to persons, dogs and other animals known to her but in this instance, she became aroused in response to the presence of the Alpaca in her perceived territory.  Territorial aggression is not expected to take place in neutral areas that does not establish a sense of familiarity. This probably explains why Willow does not show any aggression towards other dogs as depicted in the photos supplied by Mrs Smith.

22.    The attack might have been unprecedented and out of character, but the onset of territorial aggression is expected to start at around 8 to 10 months of age and gets progressively worse if not correctly managed.

Tātaritanga me ngā tohutohu

Analysis and advice

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

24.      This threat will be eliminated if Willow is muzzled when in public and private ways. The threat will also be reduced if she is de-sexed. One of the benefits of de-sexing a female dog is that it may reduce the dog’s unwanted aggressive behaviour when on heat or when she has puppies.

25.      Clause 17 of the Auckland Council Dog Management Bylaw 2018 provides for the review and cancellation of a menacing classification after 12 months if Mrs Smith –

a)   Provides a dog behavioural assessment report on Willow,

b)   Has not been issued with infringement notices relating to Willow within the preceding 12-month period and

c)   Has obtained a responsible dog ownership licence.

Tauākī whakaaweawe āhuarangi

Climate impact statement

26.    This section is not relevant to the subject of this report.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

27.    This is a report about an objection to the menacing classification of a dog. It does not require council group views.

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

Local impacts and local board views

28.    This report has no local impact. We have not sought local board views.

Tauākī whakaaweawe Māori

Māori impact statement

29.    This is a report about an objection to the menacing classification of a dog which has no impact on Māori.

Ngā ritenga ā-pūtea

Financial implications

30.    The decision by the Committee on the objection to the menacing classification has no financial implications.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

31.    There are no risks in upholding the classification.

Ngā koringa ā-muri

Next steps

32.    The Committee must give Mrs Smith written notice of its decision as soon as practicable.

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

Statement by compainant

 

b

Photo of injury and vet bill

 

c

Classification notice

 

d

Objection to Classification

 

     

Ngā kaihaina

Signatories

Author

Chrisna Nortje - Principal Specialist Animal Management

Authorisers

James Hassall - General Manager, Licensing and Regulatory Compliance

Craig Hobbs - Director Regulatory Services