Agenda of Regulatory and Community Safety Committee

Regulatory and Community Safety Committee

02 July 2024

Findings from review of Council's Cemetery Bylaw and Code

File No.: CP2024/07128

Te take mō te pūrongo

Purpose of the report

1. To endorse the findings from a review of Auckland Council’s cemetery and crematoria Bylaw and Code.

2. To initiate a statutory bylaw review.

3. To request an options report and proposal.

Whakarāpopototanga matua

Executive summary

4. Staff have prepared a findings report (Attachment A) to enable the Regulatory and Community Safety Committee to review Auckland Council’s Cemeteries and Crematoria Bylaw 2014 and Code of Practice 2014.

5. The review started with the Code, but later expanded to include the Bylaw to enable the committee to consider options to improve the whole regulatory framework.

6. Key findings from the review are that:

a) a bylaw is still required to fill a regulatory gap in national legislation to enable council to manage its cemeteries and crematoria.

b) the Bylaw and Code help minimise public safety risks, misuse, obstruction, distress to families and damage at council cemeteries and crematoria.

c) improvements should be considered, including to clarify when an approval from council is required and how council makes the decision, to ensure the rules reflect current practice (for example adornments are allowed on plots for up to 28 days following interment), and to improve administration and enforcement (for example to clarify delegations).

7. Staff recommend that the committee endorse the findings, initiate a statutory bylaw review and request an options report and proposal on the preferred option. Taking this approach will enable the consideration of statutory options to improve the whole regulatory framework, including to confirm, amend, replace or revoke the Bylaw or Code.

8. There are low risks associated with the review process and targeted engagement to date. These risks can be mitigated by communicating that public feedback will be sought on any proposed improvements and that there are no impacts from starting a statutory bylaw review (for example to costs or the wider bylaw review programme).

9. If approved, staff will develop an options report (including statutory bylaw review determinations) and a proposal that respond to the findings in Attachment A for the committee’s consideration in the last quarter of this year.

Ngā tūtohunga

Recommendation/s

That the Regulatory and Community Safety Committee:

a) ohia / endorse the findings in the ‘2024 Review Findings Report: Auckland Council Cemeteries and Crematoria Bylaw and Code 2014’ in Attachment A of this agenda report.

b) whakatuu / approve the start of the statutory review of the Auckland Council Ture ā-Rohe mo ngā Wāhi Tapu me ngā Whare Tahu Tupāpaku | Cemeteries and Crematoria Bylaw 2014 in accordance with the scope and timeframes outlined in the agenda report.

c) tono / request that staff, as delegated by the Chief Executive, prepare a report in response to the findings that completes a statutory bylaw review, develops options for improvements, and includes a proposal on the preferred option.

Horopaki

Context

The Bylaw and Code help to manage council cemeteries and crematoria

10. The Governing Body on 31 July 2014 (GB/2014/67)^{^[1]} made the Auckland Council Ture ā-Rohe mo ngā Wāhi Tapu me ngā Whare Tahu Tupāpaku | Cemeteries and Crematoria Bylaw 2014 (Bylaw) and Arataki Tikanga mo ngā Wāhi Tapu me ngā Whare Tahu Tupāpaku | Cemeteries and Crematoria Code of Practice 2014 (Code).

11. The council seeks to minimise public safety risks, cemetery misuse, distress to families, obstruction, and damage to property, heritage and the environment from the use of council cemeteries and crematoria by the public.

12. Council operates approximately 29 active (operational) and 26 inactive (no new plots for sale; no longer in regular use; function as local parks) cemeteries including three main hub cemeteries with crematoria (Waikumete Cemetery, Manukau Memorial Gardens and North Shore Memorial Park).

13. The Bylaw’s main function is to set a framework that enables council to make detailed rules in a separate code. The Code contains the rules for certain activities at council cemeteries and crematoria only (not for example, ash scattering in public places).

14. The Governing Body has delegated authority to make, amend and revoke the Code to the Regulatory and Community Safety Committee, and to administer the Bylaw and Code to cemetery and Aotea Great Barrier Island staff and the Waikumete Urupā Komiti.^{^[2]}

15. The Bylaw and Code form part of a wider regulatory and strategic framework.

The review started with the Code, but was later expanded to include the Bylaw

16. The committee initiated the Code’s first review since it was made in 2014 (REG/2022/10). The Bylaw was last reviewed in 2019, and amendments were adopted in 2021 to make it easier to read. The next statutory bylaw review must be completed before 11 April 2029.

17. The Code review identified opportunities to also improve the Bylaw. Staff expanded the review to include the Bylaw to enable the committee to consider options to improve the whole regulatory framework.

The review applies statutory bylaw review requirements to the Bylaw and Code

18. This review applies statutory bylaw review requirements under the Local Government Act 2002 to the Bylaw and (as best practice) to the Code. For example, the review determines whether a bylaw is still the most appropriate way of addressing the problem, whether the current Bylaw and Code, are the most appropriate form of bylaw and if they give rise to any implications under the New Zealand Bill of Rights Act 1990.

Staff prepared a findings report as the first step in reviewing the Bylaw and Code

19. Staff carried out research and engagement using criteria for a statutory bylaw review to complete the findings report in Attachment A (the first step in the review process), including:

a) interviews, workshops, surveys, email input and phone calls with relevant council units and funeral directors, monumental masons, religious, cultural and interest groups, Auckland’s public health service, government agencies, and the Waikumete Urupā Komiti.

b) notification to and follow up with mana whenua and mataawaka representatives.

c) environmental scans and data analysis including of council complaint, health and safety, resource consent and service provision data, and national burial, cremation and disinterment data.

Tātaritanga me ngā tohutohu

Analysis and advice

The risk of high impact problems continues at council cemeteries and crematoria

20. The use of council cemeteries and crematoria by the public can cause public safety risks, cemetery misuse, distress to families, obstruction, and damage to property, heritage and the environment, for example:

a) flammable items in a cremator can result in cremator damage of up to $150,000.

b) uncontrolled adornments on plots obstruct maintenance and other burials.

c) headstones of poor durability or installation can cause families distress and risk injury.

21. Problems can result from improper interment, cremation, disinterment, ash scattering and vegetation planting; uncontrolled burial plot ownership and use of adornments; and improper design, construction, installation, modification, maintenance, or removal of built structures such as memorial monuments (headstones or plaques) and mausolea.

22. Data is limited however problems are a concern to the operational management of council cemeteries. All problems appear infrequent but can have high potential impact, aside from adornment problems which are frequent and also high in impact.

The Bylaw and Code have helped to minimise problems, with limitations

23. The Bylaw and Code have helped to minimise problems, and compliance appears high, aside from adornments which continue to be a frequent problem:

a) they are used to help staff manage council cemeteries and crematoria and encourage voluntary compliance (for example, to approve interment, cremation and built structures).

b) there remain low recorded health and safety incidents and complaints about the problems they seek to manage compared to total services.

24. However, there are challenges to effectiveness:

a) additional or clarified rules are located outside of the Code (for example in agreements, on the council website, or on a case-by-case operational basis) which reduces certainty.

b) ‘face-value’ reliance that external third parties comply with the Code (for example that the funeral director has removed inappropriate items from a casket prior to cremation).

c) inconsistent approaches (for example permanent adornments permitted in some areas).

d) Burial and Cremation Act 1964 enforcement powers are used rather than Bylaw and Code powers and penalties (for example to relocate or remove adornments).

e) the authority of cemetery and Aotea Great Barrier Island service centre staff to use legislative powers to administer the Bylaw and Code.

The Bylaw and Code fill a regulatory gap in the national legislation

25. The Bylaw and Code fill a regulatory gap as cemetery management powers in the Burial and Cremation Act 1964 can be unclear, leave gaps, and have uncertain application for matters currently addressed in practice.

26. Alternatives are less effective than a bylaw as they lack clear powers to address all matters currently addressed by the Bylaw and Code or in practice; are limited to effects rather than direct regulation of behaviour; or for some issues could be an unjustified response to the level of harm or pose reputational risks to council.

27. The exception is the use of the Litter Act 1979 as a feasible alternative to address illegal dumping of adornments around cemeteries.

The Bylaw and Code are valid and reasonable but could be improved

28. The Bylaw and Code are authorised and do not conflict with any other New Zealand legislation, are reasonable, and have justified implications on people’s rights and freedoms.

29. However, improvements should be considered, for example:

a) to clarify when an approval from council is required and how council makes the decision.

b) to ensure the rules reflect current practice (for example adornments are allowed on plots for up to 28 days following interment).

c) to improve administration and enforcement (for example to clarify delegations for bylaw administration and to clarify authority for staff to use legislative bylaw powers).

30. Some suggested improvements are not recommended (for example to prohibit or restrict plastic adornments, due to existing education campaign and cultural considerations).

Staff recommend the committee endorse the findings, initiate a statutory bylaw review and request options and proposal

31. This report establishes that the risk of high impact problems from the use of council cemeteries and crematoria remains, that a Bylaw and Code can help address.

32. Staff recommend that the committee endorse the findings report, initiate a statutory bylaw review, and request options for improvements and a proposal on the preferred option.

33. Taking this approach will enable staff to use the findings to help the committee consider statutory options to improve the whole regulatory framework, including whether to confirm, amend, replace or revoke the Bylaw or Code.

Tauākī whakaaweawe āhuarangi

Climate impact statement

34. The Bylaw and Code do not directly address the climate change goals in Te Tāruke-ā-Tāwhiri: Auckland's Climate Plan. For example, the Bylaw and Code focus on ensuring that memorials do not cause safety risks and adornments do not obstruct maintenance, rather than regulating the environmental impact of common practices.

35. This decision has no specific climate impact. Any options and proposal that respond to the findings in this report could consider feedback on climate change impacts while also continuing to support council cemetery and crematoria services that meet Aucklander’s social, cultural, and physical needs.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

36. The Bylaw and Code are administered by the Cemetery Services Unit and Aotea Great Barrier Island service centre, and impact the role of other council units such as the Heritage Unit. Relevant units have provided feedback to the review and suggested improvements.

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

Local impacts and local board views

37. The Bylaw and Code have a potential impact on local governance as they regulate council cemeteries for which local boards have delegated authority, for inactive cemeteries and for active cemeteries on Aotea Great Barrier Island.

38. The impact on local governance varies. Only 17 local boards have cemeteries in their area and public interest in previous reviews has been low.^{^[3]}

39. Based on the agreed principles and processes in the Local Board Involvement in Regional Policy, Plans and Bylaws 2019, local board views will be sought from interested local boards on any options and proposal, and on public feedback to any proposal to a Bylaw Panel.

40. The Aotea Great Barrier Island Local Board provided informal feedback on the Code at a 2023 workshop. The local board supported the current flexible approach to cemeteries on the island but considered that greater guidelines around practices are needed.

Tauākī whakaaweawe Māori

Māori impact statement

41. The Bylaw and Code support whanaungatanga, rangatiratanga, manaakitanga and kaitiakitanga in Houkura / the Independent Māori Statutory Board’s Māori Plan for Tāmaki Makaurau and the Schedule of Issues of Significance by providing regulation that supports the role of Wāhi Tapu Māori Komiti in relation to Wāhi Tapu Māori Areas (urupā) in council cemeteries.

42. Staff notified the Waikumete Urupā Komiti, 19 mana whenua groups, and nine mataawaka marae and other groups.

43. Feedback received from the Waikumete Urupā Komiti included to clarify delegations about the role of the Komiti. Feedback from three mana whenua representatives highlighted concerns with burial capacity and costs, waste associated with adornments, and climate change impacts.

44. Suggested improvements will be assessed in any report on options and proposal. Staff will engage with the Waikumete Urupā Komiti and mana whenua and mataawaka on any proposal through the public consultative process.

Ngā ritenga ā-pūtea

Financial implications

45. The cost of developing the options and proposal will be met within existing budgets.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

46. The following risks have been identified:

If...	Then...	Mitigation
stakeholders or the public are concerned about suggested improvements and engagement to date or advocate for out-of-scope improvements	council may be perceived to be unresponsive to their views. (Low reputational risk).	Communication of future opportunity for stakeholder and public feedback on any proposed improvements and approach to out-of-scope matters.
stakeholders for other bylaws or the public are concerned about initiating an early bylaw review	there may be a negative perception of the council about the time, resource and cost of a bylaw review and impact on council’s wider bylaw review programme. (Low reputational risk).	Communication that there is little impact on council resource or wider programme because the Bylaw provides a simple framework that enables the adoption of the Code, any changes to the Code alone would have followed a similar public consultative process to a bylaw review and because the next Bylaw review date would be extended to 2034.
there are changes to national legislation as a result of the current legislative review	there may be changes to how council uses a bylaw to manage its cemeteries and crematoria. (Low legislative risk).	Monitor any implications, noting that the legislative review commenced in 2019 and there is not set timing on the outcome or indication of significant legislative changes.

Ngā koringa ā-muri

Next steps

47. If endorsed, the next step will be for staff to develop an options report (including statutory bylaw review determinations) and a proposal that respond to the findings in Attachment A for the committee’s consideration in the last quarter of this year.

Ngā tāpirihanga

Attachments

No.	Title	Page
a ⇨	2024 Review Findings report for Auckland Council's cemetery bylaw and code

Ngā kaihaina

Signatories

Author

Elizabeth Osborne - Policy Analyst

Authorisers

Paul Wilson - Senior Policy Manager

Kataraina Maki - General Manager - Community and Social Policy

Craig Hobbs - Director Regulatory Services

Regulatory and Community Safety Committee

02 July 2024

Findings from review of Council's policy and bylaw on dogs

File No.: CP2024/07015

Te take mō te pūrongo

Purpose of the report

1. To endorse the findings from a review of the Auckland Council Policy and Bylaw on dogs

2. To request an options report and proposal for improvements.

Whakarāpopototanga matua

Executive summary

3. Staff have prepared a findings report (Attachment A) to enable the Regulatory and Community Safety Committee to complete a review of the Auckland Council Policy on Dogs 2019 and the Auckland Council Dog Management Bylaw 2019.

4. The Policy and Bylaw must be reviewed by 25 July 2024 to decide whether a bylaw is still required and valid and whether the Policy and Bylaw could be improved.

5. Key findings from the review are:

a) the Policy and Bylaw help minimise problems (for example risk of distress to people and wildlife and risk of not meeting the needs of dogs and their owners) from irresponsible dog ownership and the inherent conflict between users of shared spaces in Auckland:

i. the Policy has guided operational service delivery (for example, registration compliance is high (88 per cent), Responsible Dog Ownership Licence holders are increasing (42,495) and the Bylaw is enforced (1,437 infringement fines issued)

ii. standardised rules (such as for summertime and season) are easier to understand.

b) however, the Policy and Bylaw could be improved, for example to:

i. investigate if additional rules are required to ‘walk’ multiple dogs in shared spaces

ii. address regional park dog access rules that impact responsible dog owners or cause conflict (for example to provide practical dog access to Long Bay beach)

iii. make the Policy easier to read and understand, for example refining the objective, focus areas and linking policy statements to dog access rules

iv. clarify the Bylaw to provide greater certainty, for example who can provide menacing dog behavioural assessments

c) current delegations to the committee, local boards and staff could also be improved, for example, the 2012 delegations do not reflect changes to regional parks.

6. Staff recommend that the committee endorse the findings report, make the necessary resolutions to complete the statutory review, and request an options report and proposal for improvements. This approach will commence the process of improving council’s efforts to ensure dogs remain a positive part of the lives of Aucklanders.

7. There is medium reputational risk that the community may feel their views have not been sufficiently considered. This can be mitigated by communicating (where necessary) the findings and public feedback. Any changes will be sought before a final decision is made.

8. If approved, staff will develop an options report and proposal on improvements in response to the findings in Attachment A for the committee to consider in the last quarter of this year.

Ngā tūtohunga

Recommendation/s

That the Regulatory and Community Safety Committee:

a) ohia / endorse the findings in the ‘2024 Review Findings Report: Auckland Council Policy and Bylaw on Dogs 2019’ in Attachment A of this agenda report.

b) whakaae / agree that the statutory review of the Auckland Council Policy on Dogs 2019 and Dog Management Bylaw 2019 is complete, including that:

i) a bylaw is still the most appropriate way to address the risk of danger, distress, nuisance, damage and risk of not meeting the needs of dogs and their owners from irresponsible dog ownership and the inherent conflict between users of shared spaces in Auckland

ii) the current Bylaw does not give rise to any implications and is not inconsistent with the New Zealand Bill of Rights Act 1990

iii) the current Policy and Bylaw (and associated delegations) could be improved, including to:

a) investigate if additional rules are required to ‘walk’ multiple dogs in shared spaces

b) address regional park dog access rules that impact responsible dog owners or cause conflict

c) make the Policy and Bylaw easier to read, understand and administer

d) update and remove duplicated, inconsistent, and redundant delegations.

c) tono / request that staff, as delegated by the Chief Executive, prepare an options report and proposal on improvements in response to the findings for consultation in 2025.

Horopaki

Context

Council is required to adopt a policy on dogs and bylaw to implement the policy

9. The Dog Control Act 1996 (DCA) requires Auckland Council to have a policy on dogs and a bylaw to give effect to it by specifying rules that dog owners must comply with.

10. The Auckland Council’s Kaupapa no ngā Kurī / Policy on Dogs 2019 (Policy) and Ture ā Rohe Tiakina Kurī / Dog Management Bylaw 2019 (Bylaw) were originally made in 2012 (GB/2012/157). The Policy was amended, and the Bylaw replaced in 2019 (GB/2019/71).

The Policy and Bylaw aims to keep dogs as a positive part of the life of Aucklanders

11. Council’s objective is ‘to keep dogs as a positive part of the life of Aucklanders by:

a) maintaining opportunities for owners to take their dogs into public places

b) adopting measures to minimise the problems caused by dogs (including by promoting responsible dog ownership)

c) protecting dogs from harm and ensuring their welfare’.

The Policy and Bylaw are part of and align with a wider regulatory and strategic framework

12. The Policy and Bylaw sit within and align with a wider regulatory and strategic framework about the care and control of dogs, including government legislation and council plans.

13. The Figures and Table below illustrate the how the policy focus areas and Bylaw give effect to the Policy, the summarise the wider regulatory and strategic framework.

Policy focus areas and Bylaw rules to give effect to policy

Dog policy and bylaw regulatory and strategic framework

Note: The solid lines in the diagram above show central government legislation that directly influences the Policy and Bylaw, with the dashes showing legislation and council plans that are used to inform the Policy and Bylaw.

Policy and Bylaw alignment with the Auckland Plan 2050

Outcome	Belonging and Participation
Direction 2	Improve health and wellbeing for Aucklanders by reducing harm and disparities in opportunities.
Outcome	Homes and Places
Direction 4	Provide public places and spaces that are inclusive, accessible and contribute to urban living.
Outcome	Environment and cultural heritage
Direction 1	Ensure Auckland’s natural environment and cultural heritage is valued and cared for.
Alignment	The Policy and Bylaw balance the interest of dog owners and their dogs, public safety and the natural environment by promoting responsible dog ownership and ensuring an inclusive and balanced use of shared spaces.

The Dog Control Act 1996 sets out review requirements for the Policy and Bylaw

14. The Policy and Bylaw must be reviewed by 25 July 2024 to determine if it is still required and valid and whether the Policy and Bylaw could be improved. The review must have regard to the following matters (s10AA DCA):

a) the need to minimise danger, distress, and nuisance to the community generally

b) the need to avoid the inherent danger in allowing dogs to have controlled access to public places frequented by children, whether or not accompanied by adults

c) the importance of enabling, to the extent that is practicable, the public (including families) to use streets and public amenities without fear of dog attacks or intimidation

d) the exercise and recreational needs of dogs and their owners.

15. If the Bylaw is not reviewed on time, it will expire in July 2026 and council must adopt a new bylaw before that date to avoid a regulatory gap.^{^[4]} The Policy does not expire.

Policy and Bylaw review process

Staff prepared a findings report to help complete the Policy and Bylaw review

16. Between November 2023 and April 2024, staff carried out research and engagement to complete the findings report in Attachment A. This included:

a) interviews with key internal staff and identified external stakeholders

b) a public online survey (People’s Panel Survey 2024)

c) data analysis of council Request for Service, Department of Internal Affairs National Survey on Dog Attacks (2016) and Dog Control Statistics (2013-2023) and Accident Compensation Corporation dog related claims (2023)

d) environmental scan of how other councils in New Zealand manage similar issues

e) site visits to regional parks with identified issues or opportunities.

Tātaritanga me ngā tohutohu

Analysis and advice

Dogs benefit the lives of Aucklanders but also continue to cause problems

17. Dogs provide companionship, emotional support and may help foster social connections.

18. However, risks remain including danger and distress to people, stock, poultry, domestic animals and protected wildlife, nuisance to people, damage to property and environment and risk of not meeting the needs of dogs and their owners from irresponsible dog ownership or the inherent conflict between users of shared spaces in Auckland.

19. The Table below summarises the analysis of the scale and impact of the problem caused by dogs for each Topic.^{^[5]} Key highlights are:

a) problems are generally high frequency and range from low to high in impact

b) problems associated with multiple dog walking (Topic 5) have continued to emerge since the 2019 review, are low to moderate in frequency and mostly low impact.



Topic	Problem	Scale and impact of problem
1. Approach to dog management in Auckland	Risk of danger and distress to people, stock, poultry, domestic animals and protected wildlife, nuisance to people, damage to property and environment and not meeting the needs of dogs and their owners ... … from irresponsible dog ownership.	Problems high frequency, low to high impact, for example:  12,737 complaints in 2022/23 with 12,737 roaming, 6,670 barking and 2,357 aggressions to people  unregistered dogs (around 10 per cent of the total dog population) are estimated to cause around 40 per cent of roaming and 25 per cent of all dog attacks and aggressions.  welfare complaints increased by 1,183 per cent from 2021/22 to 2022/23.
2. Approach to managing dog access rules in shared spaces	... from the inherent conflict between users of shared spaces in Auckland.	Problems high frequency, low impact, for example:  826 bylaw breach complaints in 2023 were mostly dog access rule breaches, indicating high frequency  survey respondents are unlikely to take follow-up actions (including reporting to the council) when encountering dog related problems in public, indicating low impact  in 2023, rangers recorded approximately 200 incidents in regional parks, mostly about dog access rule breaches  impact can be high in biodiversity and ecological areas  dog owners would like more dog access in regional parks.
3. Region-wide dog access rules
4. Regional Park dog access rules
… from the inherent conflict between users of regional parks and associated beaches in Auckland.
5. Walking multiple dogs
… from the inherent conflict between people walking multiple dogs at a time and other users of shared spaces in Auckland.	Problems are low to moderate frequency and mostly low impact. However, people walking multiple dogs (particularly three or more) are disproportionally represented in several dog-related problems like interfering with activities (46 per cent), approaching other people when they didn’t want them to (42 per cent), being aggressive (36 per cent), and chasing wildlife (31 per cent).

The Policy and Bylaw have helped achieve the objectives and outcomes

20. Council’s objectives and outcomes are similar to when the Policy and Bylaw were made in 2012 and 2019. The Table below shows how the objectives could be better aligned to the Topics and the outcome better aligned to the Auckland Plan.

Topics	2024 Policy and Bylaw review objectives
Overall outcome	To minimise the risk of danger and distress to people, stock, poultry, domestic animals and protected wildlife, nuisance to people, damage to property and environment and not meeting the needs of dogs and their owners … … from the inherent conflict between users of shared spaces in Auckland.
1. Approach to dog management in Auckland	… from irresponsible dog ownership.
2. Approach to managing dog access rules in shared spaces	… from the inherent conflict between users of shared spaces in Auckland.
3. Region-wide dog access rules
4. Regional Park dog access rules	… from the inherent conflict between users of regional parks and associated beaches in Auckland.
5. Walking multiple dogs	… from the inherent conflict between people with multiple dogs and other users of shared spaces in Auckland.
Overall outcome	Aucklanders are happy and healthy with access to public places that enhance their wellbeing as contained in the Auckland Plan.

21. The Policy and Bylaw have helped to address the problem and achieve council’s objectives and outcomes, however, there are challenges to effectiveness (See Table below).

Topic	The Policy and Bylaw have helped achieve 2019 objectives and outcomes	Examples of challenges to effectiveness
1. Approach to dog management in Auckland	 Guides service delivery to prevent and address dog-related problems.  In 2022/23, 88 per cent of known dogs were registered, with 79 per cent compliance for neutering menacing and dangerous dogs.  In 2019, 5 per cent increase in dog registration (people registering their second dog). The amended Bylaw allowed two dogs without a licence.	 Operational and enforcement services impacted (complaints increased 37 per cent)  Focus on registration and compliance significantly affected by the high occupancy levels in all three dog shelters.  Reduced availability of veterinary services has decreased neutering compliance.  Reduction in registered dogs, increase in dog welfare issues due to COVID-19 and increased in living costs.
2. Approach to managing dog access rules in shared spaces	 Guides changes to dog access rules.  Sets behavioural expectations.  Recognises dog owners as legitimate users of public space.  Enables dog access for exercise and recreational needs.	 Policy is complex, information is outdated creating implementation challenges.  Access rules need to be clearer to help people better comply.
3. Region-wide dog access rules	 Establishes behavioural expectations.  Standardised rules are easier to understand, educate the public on and enforce.	 Data limitations and the immense network of parks and public places have made dog access rule breaches difficult to detect.  Compliance primarily relies on an educational approach and patrols.
4. Regional Park dog access rules	 Supports dog access rules.  Protects areas with high ecological, biodiversity and heritage values, wildlife, and farm stock from dogs.  Allows regional parks to be shared particularly during summertime.	 Park rangers have limited capacity to patrol and have no enforcement powers.  With limited staff capacity, ‘hot spots’ are patrolled where complaints are frequently received.
5. Walking multiple dogs	 Establishes behavioural expectations for walking dogs.  Defines the DCA expectations for all dog owners to control their dogs effectively.	 Multiple dog walkers (in particular, of three or more dogs) are overrepresented in dog-related incidents such as interfering with activities (46 per cent), approaching people when they didn’t want them to (42 per cent), and being aggressive (36 per cent).

The Policy and Bylaw are valid and reasonable but require improvements

22. The review found that a policy and bylaw on dogs is still the best way to address the problems and there are no other feasible alternatives.

23. The Policy and Bylaw are authorised under the Dog Control Act 1996 and do not conflict with any other New Zealand legislation, are reasonable and have justified implications on people’s right and freedoms.

24. However, the Policy and Bylaw could be improved (See Table below).

Topic	Examples of Policy and Bylaw improvements
1. Approach to dog management in Auckland	 Redesign the Policy so that it is easier to navigate and understand.  Clarify who can provide a menacing dog ‘behavioural assessment’ (Bylaw cl17(1)(a)).  Align the term ‘urban residential’ with the Auckland Unitary Plan Zoning (Bylaw cl12(1)).
2. Approach to managing dog access rules in shared spaces	 Refine the objective and focus areas.  Clarify the link between methods (What the council will do) and access rules (Schedules).  Include a statement about compliance with dog access rules.  Include reference to ‘private ways’.  Clarify the ‘shared use of public places’ principle and better define ‘public places’.  Explicitly recognise wildlife in access principles.  Remove outdated information in Schedule 2, such as redundant landmarks.
3. Region-wide dog access rules	 Clarify how Bylaw cl 7 implements the default on-leash rules  Clarify ambiguity in precedence when conflicting rules in Schedules 1 and 2 apply.
4. Regional Park dog access rules	 Address issues with dog access rules (for example to provide practical dog access to Long Bay beach).  Include supporting operational measures (for example maps).
5. Walking multiple dogs	 Investigate whether additional rules are required to ‘walk’ multiple dogs in shared spaces.
Delegations	 Clarify and update the delegations that are duplicated, inconsistent and redundant.

25. Some stakeholder and survey respondents suggested improvements were not considered to justify further consideration (for example, amending rules for multiple dog licences as there was strong support to retain the status quo rule and an absence of evidence).

Staff recommend the committee endorse the findings and request options and a proposal

26. This report establishes that the Policy and Bylaw have helped to address continued problems (for example risk of distress to people and wildlife and of not meeting the needs of dogs and their owners) from irresponsible dog ownership and the inherent conflict between users of shared spaces in Auckland.

27. Staff recommend that the committee endorse the findings in Attachment A, make the necessary resolutions to complete the review and request an options report and proposal for improvements. Taking this approach will commence the process to improve council’s approach to ensuring dogs are a positive part of the lives of Aucklanders.

28. The review findings would be used to develop options and proposed improvements to the Policy and Bylaw and associated delegations.

Tauākī whakaaweawe āhuarangi

Climate impact statement

29. The Policy and Bylaw do not directly address the climate change goals in Te Tāruke-ā-Tāwhiri: Auckland's Climate Plan. For example, the Policy and Bylaw focus is on keeping Aucklanders happy and healthy with dogs being a positive part of Aucklanders’ lives.

30. This decision has no specific climate impact. Any options and proposal that respond to the findings in this report could consider feedback on climate change impacts.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

31. The Policy and Bylaw impacts the Animal Management, Biodiversity and Natural Environment units who have participated in the review findings and suggested improvements to the Policy and Bylaw.

32. Relevant subject matter experts provided feedback on the effectiveness of the Policy and Bylaw and suggested improvements.

33. Additional feedback has been sought from Regional Operations unit responsible for regional parks for regional park access rules.

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

Local impacts and local board views

34. The Policy and Bylaw impact local governance and are of high interest (8,028 public submissions in 2019).

35. An Elected Member Working Group will consider options in September 2024 (Councillor Turner, Councillor Filipina, Local Board members Carter and Matthews, and Member Wilcox from the Houkura Independent Māori Statutory Board).

36. All local boards will have an opportunity to provide views to inform the development of proposed Policy and Bylaw improvements (prior to adoption for public consultation), and to provide views on any public feedback to an appointed Bylaw Panel prior to a final decision.

Tauākī whakaaweawe Māori

Māori impact statement

37. The Policy and Bylaw support manaakitanga, whanaungatanga and kaitiakitanga in the Independent Māori Statutory Board’s Māori Plan for Tāmaki Makaurau and the Schedule of Issues of Significance by providing regulations that help protect people and the environment from harm caused by dogs.

38. The 2024 People’s Panel survey found that the feedback given by Māori generally aligns with the other feedback received. Thirteen per cent of the survey respondents were Māori (274 out of a total of 2184 respondents). The Table below shows questions Māori responded more to than other demographic groups.^{^[6]}

2024 Peoples Panel Survey responses	Māori	Non-Māori
Have one or more dogs	50 per cent	41 per cent
Have an unregistered dog/s	9 per cent	4 per cent
Have seen dogs roaming without an owner	65 per cent	56 per cent
Strongly agree on incentives for responsible dog owners	68 per cent	62 per cent

39. Mana whenua and mataawaka feedback will be sought on any proposed improvements through the public consultative process.

Ngā ritenga ā-pūtea

Financial implications

40. The cost of implementing the outcome of the Policy and Bylaw review will be met within existing budgets, including seeking public feedback on any proposed improvements.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

41. The following risks have been identified:

If...	Then...	Mitigation
stakeholders or the public are concerned about suggested improvements and engagement to date	there may be a negative perception of the council about its Policy and Bylaw review processes and consultation to date and moving forward (Medium reputational risk).	Clearly communicate that no decision is being made at this stage and that stakeholder and the public feedback on any proposed improvements will be sought and considered before a final decision is made.
stakeholders or the public expect findings on specific local dog access rules	there might be concerns about the completeness and validity of the review (Medium reputational risk).	Clearly communicate the review finding that in general most local dog access rules are ‘fit for purpose’ and that improvements to specific rules will be considered by the relevant local board.

Ngā koringa ā-muri

Next steps

42. If approved, the next step will be for staff to develop an options report and proposal on improvements in response to the findings in Attachment A for the committee to consider in quarter four 2024.

Ngā tāpirihanga

Attachments

No.	Title	Page
a ⇨	2024 Review Findings Report Auckland Council Policy and Bylaw on Dogs 2019

Ngā kaihaina

Signatories

Author

Kylie Hill - Senior Policy Advisor

Authorisers

Paul Wilson - Senior Policy Manager

Kataraina Maki - General Manager - Community and Social Policy

Craig Hobbs - Director Regulatory Services

Regulatory and Community Safety Committee

02 July 2024

Findings from joint review of Auckland's traffic-related bylaws

File No.: CP2024/06590

Te take mō te pūrongo

Purpose of the report

1. To endorse the findings from the review of Auckland Council traffic-related bylaws and

2. To request an options report and a proposal in collaboration with Auckland Transport.

Whakarāpopototanga matua

Executive summary

3. Auckland Council has collaborated with an Auckland Transport-led project on a findings report (Attachment A) to enable a Regulatory and Community Safety Committee review of Auckland Council’s Traffic Bylaw 2015 and Public Safety and Nuisance Bylaw 2013 (for vehicles on beaches only).

4. While the vast majority of Auckland’s roads are controlled by Auckland Transport, Auckland Council retains responsibility for roads on most beaches, parks and council facilities.

5. Key findings from the review of Auckland Council’s traffic-related bylaws are that:

· the Bylaws help ensure council-controlled roads and public places connect people and places in a way that is safe, effective and efficient, and protects the environment

· requiring a ‘beach driving permit’ for vehicles on beaches (other than to launch a boat or in emergencies) has helped but could be improved by enabling access to infringement fines, more effective use of permit conditions and (where appropriate) use of road or beach closures, safe zones, physical gates and CCTV monitoring

· parking restrictions have helped but improvements are required to clarify where off-road parking is prohibited, how parking controls (restrictions or prohibitions) are adopted and enforcement delegated to Auckland Transport

· council can no longer use a bylaw to set new speed limits, which since 2022 are required to be regulated in a speed management plan

· other existing legislation or bylaws are currently used to better address activities involving vehicles or things (for example, advertising on vehicles or leaving goods)

· consideration should be given to developing a single bylaw made by both Auckland Transport and Auckland Council that could be easier to administer, implement, enforce and communicate to the public (for example, the boundaries between Auckland Council and Auckland Transport roads on beaches and council parks are indistinguishable).

6. Staff recommend that the committee endorse the findings as they relate to Auckland Council controlled roads and public places, and request an options report and a proposal on improvements. Taking this approach in collaboration with Auckland Transport as project lead will improve the regulation of vehicle use and parking in Auckland.

7. There is a low reputational risk associated with the collaborative review process. This can be mitigated by communicating the distinct roles and responsibilities of Auckland Transport and Auckland Council, benefits of collaboration and reassurance that public feedback will be sought on any proposed improvements before a final decision is made.

8. If endorsed, staff will develop an options report and a proposal in response to the findings in Attachment A for the committee’s consideration in the third quarter of this year.

Ngā tūtohunga

Recommendation/s

That the Regulatory and Community Safety Committee:

a) whiwhi / receive the ‘2024 Review Findings Report: Auckland traffic-related bylaws’ in Attachment A of this agenda report.

b) ohia / endorse the findings in Attachment A of this agenda report related to vehicle use and parking on Auckland Council controlled roads and public places, including that the current Auckland Council traffic-related bylaws:

i) have helped ensure council-controlled roads and public places connect people and places in a way that is safe, effective and efficient, and protects the environment

ii) for vehicles on beaches, could be improved by enabling access to infringement fines and more effective use of permit conditions

iii) for parking restrictions, could be improved by clarifying where off-road parking is prohibited, how parking controls are adopted and enforcement delegated to Auckland Transport

iv) for setting new speed limits, can no longer be used

v) for activities involving vehicles or things such as advertising on vehicles, are not used

vi) could be streamlined by developing a single traffic-related bylaw made by both Auckland Transport and Auckland Council.

c) tono / request staff, as delegated by the Chief Executive, prepare a report in response to the findings in clause b) that develops options and a proposal to improve the regulation of vehicle use and parking in Auckland in a collaboration led by Auckland Transport.

Horopaki

Context

Both Auckland Transport and Auckland Council can make traffic-related bylaws

9. The Local Government (Auckland Council) Act 2009:

a) ‘delegates’ responsibility to Auckland Transport to regulate vehicle use and parking on the vast majority of roads and public places (the ‘Auckland transport system’)

b) retains ‘delegated’ responsibility with Auckland Council for roads and public places that are not part of the Auckland transport system (for example, roads on most beaches, parks and reserves and off-street parking at council facilities, such as libraries).

10. The boundaries between Auckland Transport and Auckland Council roads and public places can be indistinguishable to traffic, the public, staff and the Police. For example, some parts of Karioitahi Beach and roads located on council parks are part of the Auckland transport system, while other parts of the same beach and park remain under council control.

11. Under the Land Transport Act 1998, both Auckland Transport and Auckland Council are the road controlling authorities with powers to make traffic-related bylaws (s 22AB).

Three traffic-related bylaws form part of a complicated regulatory and strategic framework

12. There are three primary traffic-related bylaws (Bylaws) in Auckland:^{^[7]}

a) Auckland Transport Traffic Bylaw 2012 (adopted 18 July 2012)

b) Auckland Council Traffic Bylaw 2015 (adopted 25 June 2015, GB/2015/63)

c) Auckland Council Public Safety and Nuisance Bylaw 2013 (vehicles on beaches).^{^[8]}

13. The Bylaws specify controls (rules) across 18 topics (See Analysis and Advice for list) that:

a) for most topics (12), are part of a ‘framework' where details of the rule are determined later ‘by resolution’ (for example, to set conditions to use parking at a specific place)

b) for remaining topics (6), are ‘self-contained’ where all the details of the rule are specified (for example, to prohibit parking vehicles for the sole purpose of advertising or sale)

c) apply to Auckland Council to varying degrees, with vehicles on beaches (Topic 4), parking (Topics 9, 10, 11 and 16) and speed limits (Topic 8) being more significant.

14. The Bylaws form part of a complicated regulatory and strategic framework that includes two Acts of parliament, two road controlling authorities, six national regulations, six bylaws and eight local strategies and plans (See Figure 1 in Attachment A).

The review of the Bylaws has used a collaborative approach led by Auckland Transport

15. The committee (REG/2020/3) and Auckland Transport (on 10 February 2023) initiated the review of their respective traffic-related bylaws to determine if they were still ‘fit for purpose.’

16. A collaborative approach was used to review the Bylaws, with Auckland Transport as the lead technical expert responsible for the vast majority of Auckland’s roads. This approach builds on a similar collaboration with Auckland Transport on the review of Auckland’s signage bylaws which was led by Auckland Council and completed in 2022.

17. Staff collaborated on research and engagement to complete the findings report in Attachment A (the first step in the review process), including:

a) workshops, interviews and surveys with Auckland Transport and Auckland Council regulatory, operational, design and legal teams, and external partners such as the Police

b) an online survey of 52 key partners and external stakeholders

c) a review of the latest domestic literature and publications, international trends and analysis of data (for example complaints, incidents and infringement fines).

The Land Transport Act 1998 and Local Government Act 2002 set the review requirements

18. The Land Transport Act 1998 and Local Government Act 2002 bylaw review criteria have been applied to the review, either to comply with statutory requirements or as best practice. This includes a review of the problem, objectives and outcomes, evaluation of whether the Bylaws have helped and whether there are better alternatives or improvements.

19. If changes are proposed following the review, Auckland Council must use a public consultative procedure and consider public feedback before making a final decision.

Tātaritanga me ngā tohutohu

Analysis and advice

Vehicle use and parking still cause problems on Auckland Council roads and public places

20. Vehicle use and parking continues to cause problems on council-controlled roads and public places across all topics regulated by the Bylaws.

21. The overall problem can be defined as public safety risks (including death), travel delays, obstructions, reduced accessibility, public nuisance (for example, from noise) and damage to the environment (including fauna and flora), public infrastructure and property.

22. The scale and impact of the problems can be high in frequency and moderate to high in impact, but this varies greatly across all 18 topics. For example, there were 473 incidents witnessed or attended to by park rangers related to vehicles on beaches, with five driving fatalities on Muriwai Beach having the greatest impact on public safety.

Auckland Council’s objectives and outcomes remain largely the same, but could be refined

23. The current objectives and outcomes remain largely the same, however, they could be refined into a single objective and outcome in alignment with the Auckland Plan 2050.

In general, the Bylaws are helpful and valid for most topics, but could be improved

24. This section provides a summary of the findings from the review of traffic-related bylaws across all 18 topics as they relate to Auckland Council (See Table 1 below). Subsequent sections provide more discussion about vehicles on beaches, parking and speed limits.

25. For Auckland Council, the Bylaws are generally helpful and valid, but could be improved:

a) the ‘framework’ Bylaws where details of the rule are determined later by ‘resolution’ are a useful tool. These Bylaws can be used ‘if and where' required, an approach similar to adopting alcohol bans by resolution under the Alcohol Control Bylaw 2014

b) ‘framework’ Bylaws for parking and special events are particularly helpful, while others may be useful in rare circumstances (for example, for cruising) but are still appropriate

c) however, a number of ‘self-contained’ Bylaws (where all the details of the rule are specified), have been less helpful. Other existing regulatory tools are used instead. For example, problems related to the display of advertising on a vehicle are addressed using the Auckland Council and Auckland Transport Signs Bylaw 2022

d) the Bylaws are valid, for example the council can make them and they are reasonable

e) where the Bylaws have helped, improvements have been identified and should be considered during development of any options report

f) the main overall suggested improvement is to consider developing a single traffic-related bylaw made by both Auckland Council and Auckland Transport (an approach similar to the Auckland Council and Auckland Transport Signs Bylaw 2022). A single bylaw may provide a simpler regulatory framework to administer, implement, enforce and communicate to the public because the boundaries between Auckland Transport and Auckland Council controlled roads can be indistinguishable.

Table 1: Summary of review findings about traffic-related bylaws on council roads and public places

	Topic name	Control Type	Helpful?	Any improvements?
1	One-way travel directions and turning restrictions	Framework	Yes	Yes
2	Special vehicle lanes	Framework	Yes	Yes
3	Unformed roads	Framework	Yes	Yes
4	Vehicles on beaches	Self-contained	Yes	Yes
5	Cycle paths, shared paths and shared zones	Framework	Yes	Yes
6	Cruising and light-weight vehicle restrictions	Framework	Yes	Yes
7	Engine braking	Framework	Yes	Yes
8	Speed limits on council-controlled land	Framework	Yes	Yes
9	Parking (including zone parking), designating parking place or transport station, or prescribing conditions of use	Framework	Yes	Yes
10	Parking vehicles off a roadway (for example, berm parking)	Self-contained	No	Yes
11	Mobility parking (parking for disabled persons)	Framework	Yes	Yes
12	Residents’ parking	Framework	Yes	Yes
13	Broken down vehicles on a road or public place	Self-contained	No	Alternative rules used
14	Vehicle repairs on a road	Self-contained	No	Alternative rules used
15	Parking for sole purpose of advertising or sale	Self-contained	No	Alternative rules used
16	Special events	Framework	Yes	Yes
17	Leaving machinery or goods on a road or public place	Self-contained	No	Alternative rules used
18	Unsuitable (including heavy) traffic	Framework	Yes	Yes

The Bylaw (and its implementation) for vehicles on beaches could be improved

26. The Bylaw generally prohibits vehicles on beaches, except to launch or retrieve boats, in emergencies or with council approval (a beach driving permit). In response to the historical use by recreational vehicles, an approval is only given for Muriwai and Karioitahi beaches.

27. Ongoing problems relate to public safety risks (including the recent death of a teenager in 2024), public nuisance and damage to the environment (for example direct and indirect harm to wildlife and destruction of sand dunes) and public property such as removal of barriers.

28. The problems mostly take place on Muriwai and Karioitahi beaches. Problems on Karioitahi Beach are likely to increase as evidenced by the growing number of vehicles in recent years.

29. The Bylaw has helped. The permit system is efficient (online, automated and cost free) with permit holders causing proportionately fewer problems than non-permitted drivers.

30. However, the effectiveness of the Bylaw is limited with permit compliance averaging only to 40 per cent of vehicles. The absence of infringement fines, physical gates to restrict access to permit holders only and regular enforcement in remote locations compound the problems.

31. The Bylaw could be more effective with improvements to enable access to infringement fines (if made under the Land Transport Act 1998), more effective use of permit conditions and (where appropriate) use of road or beach closures, safe zones, physical gates and CCTV.

32. Challenges to effectiveness will however remain. For example, due to the remote location of beaches, the use of two-wheeled vehicles, limited resourcing to patrol beaches and reliance on the Police to issue infringement fines for moving vehicle offences.

The Bylaw (and its implementation) for parking is helpful, but requires improvements

33. The Bylaws set parking controls that for example impose time restrictions, reserve parking places for people with disabilities and prohibit parking vehicles on grass areas. Enforcement of stationary vehicle offences related to parking is delegated to Auckland Transport who use education, warning notices and infringement fines to encourage compliance.

34. Problems associated with parking of vehicles are ongoing and mainly relate to obstructions and reduced availability of parking spaces caused by inconsiderate and prolonged parking.

35. A bylaw can be useful, but the current traffic-related bylaws (and their implementation) require improvements to be more effective, for example to:

a) clarify where off-road parking is prohibited (for example, references to areas not designed or constructed to accommodate a parked vehicle may be ambiguous)

b) develop processes for Auckland Council to adopt parking controls (legislative changes in 2019 had a consequential effect of negating delegations to Auckland Transport)

c) clarify delegations to Auckland Transport to enforce parking rules on council-controlled roads (current delegations related to parking are confusing)

d) advocate to central government for improvements to the scope and monetary increase to parking fines, and the ability to delegate bylaw controls to Auckland Transport.

Council can no longer use a bylaw to make new speed limits

36. The Bylaw enabled the council to set new speed limits and to retain (‘save’) speed limits made under the legacy bylaws on council-controlled roads and public places.

37. Problems related to speeding remain, resulting in risks to public safety (including deaths), public nuisance and damage to the environment (for example wildlife, sand dunes or grass).

38. Recent changes to the national legislation mean that continuing to regulate speed limits through a bylaw is inconsistent with the Land Transport Rule: Setting of Seed Limits 2022.

39. Under the Rule, setting of new speed limits is required through a speed management plan. Once approved, the draft Katoa, Ka Ora: Auckland Speed Management Plan 2024-2027, will apply to all roads controlled by Auckland Transport and Auckland Council, not the Bylaw.

40. The existing ‘legacy’ speed limits on council roads, must be transferred to the National Speed Limit Register at which time the Bylaw can be revoked.

Staff recommend the committee endorse the findings, and request options and proposal

41. This report establishes that problems caused by vehicle use and parking remain and that a bylaw can help address these problems to varying degrees.

42. Staff recommend that the committee endorse the findings in this report for matters related to vehicle use and parking on Auckland Council controlled roads and public places, and request an options report and a proposal for improvements.

43. Taking this approach in collaboration with Auckland Transport as project lead will improve the regulation of vehicle use and parking in Auckland.

Tauākī whakaaweawe āhuarangi

Climate impact statement

44. The current Auckland Council Bylaws do not directly address the climate change goals in Te Tāruke-ā-Tāwhiri: Auckland's Climate Plan. For example, traffic-related bylaws focus on minimising safety risks, accessibility and damage, rather than regulating the climate impacts from the use of vehicles and parking.

45. This decision has no specific climate impact. Any options and proposal that respond to the findings in this report could consider feedback on climate change impacts whilst also continuing to ensure effective management of council-controlled roads and public places.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

46. Auckland Transport has led the review of Auckland’s traffic-related bylaws and its technical experts provided feedback on effectiveness and suggested improvements.

47. The Bylaws also impact the operations of several council departments who have participated in the review findings and suggested improvements, including Regional Parks, Parks and Community Facilities, Compliance Response and Investigations, Waste Solutions, Event Facilitation, Regional Operations, Active Communities, Connected Communities, Public Law, and Growth and Transport and Infrastructure Strategy units.

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

Local impacts and local board views

48. The Bylaws impact local governance and have high community interest because they regulate vehicle use and parking on council land and the Auckland transport system.

49. Based on the agreed principles and processes in the Local Board Involvement in Regional Policy, Plans and Bylaws 2019, views from all local boards will be sought on any options and proposal, and on public feedback to any proposal to a Bylaw Panel.

Tauākī whakaaweawe Māori

Māori impact statement

50. Traffic-related bylaws support whanaungatanga in Houkura / the Independent Māori Statutory Board’s Māori Plan for Tāmaki Makaurau and the Schedule of Issues of Significance by ensuring that the region caters for diverse Māori lifestyles and experiences, and that Māori communities are well-connected and safe.

51. Mana whenua have an active kaitiaki role and work closely with the council on the environmental and management issues associated with vehicle use on beaches.

52. For the findings review, staff notified 19 mana whenua groups, nine mataawaka marae and other groups. A planned follow up engagement with the Auckland Transport Mana Whenua Kaitiaki Forum will provide further opportunities for feedback in addition to public consultation on any proposed improvements.

Ngā ritenga ā-pūtea

Financial implications

53. The cost of developing the options and proposal will be met within existing budgets.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

54. The following risks have been identified:

If...	Then...	Mitigation
stakeholders or the public are concerned (or confused) about the collaborative approach, scope of the review, suggested improvements or engagement to date	council may be perceived negatively in terms of the review process, scope and quality (for example being unresponsive to their views). (Low reputational risk).	Clearly communicate the separate statutory roles of Auckland Transport and Auckland Council, potential benefits of collaboration, and that public feedback on any proposed improvements will be sought and considered before a final decision is made.

Ngā koringa ā-muri

Next steps

55. If endorsed, the next step will be for Auckland Council staff (as part of an Auckland Transport-led collaboration) to develop an options report and a proposal in response to the findings in Attachment A for the committee’s consideration in the third quarter of this year.

Ngā tāpirihanga

Attachments

No.	Title	Page
a ⇨	2024 Review Findings Report: Auckland traffic-related bylaws

Ngā kaihaina

Signatories

Author

Magda Findlik - Senior Policy Advisor

Authorisers

Paul Wilson - Senior Policy Manager

Kataraina Maki - Chief Sustainability Officer

Craig Hobbs - Director Regulatory Services

Regulatory and Community Safety Committee

02 July 2024

Public Safety and Nuisance Bylaw Enforcement Update

File No.: CP2024/08441

Te take mō te pūrongo

Purpose of the report

1. To update the Regulatory and Community Safety Committee on progress with enforcement of the Public Safety and Nuisance Bylaw (PSN Bylaw) in the central city and whether the enhanced approach to address ongoing concerns with city centre safety and nuisance is being effective.

Whakarāpopototanga matua

Executive summary

2. Over the last three months the number of compliance staff in the central city has increased.

3. With the increase in staff, the number of issues identified initially spiked but has since reduced as issues are addressed.

4. Through more frequent patrols, staff have developed a more in-depth understanding of members of the street whanau.

5. Many are not homeless, but for those who are, a compassionate approach has been taken. Working with other agencies, 14 individuals have been assisted into accommodation in the last five months.

6. Where encampments involving multiple people have been observed, they have been dispersed quickly.

7. A persistent issue is the number of street preachers using loudspeakers and PAs. A project is underway to address the “disturbance” aspect of their activity.

8. Overall, the change in approach appears to be having the desired effect in changing behaviour.

Ngā tūtohunga

Recommendation/s

That the Regulatory and Community Safety Committee:

a) whiwhi / receive this update of the Public Safety and Nuisance Bylaw enforcement.

Horopaki

Context

9. In a report to the 9 April meeting of the Regulatory and Community Safety Committee, a change in approach to enforcement under the Public Safety and Nuisance Bylaw was advised.

10. Enforcement was to move from advisory and focused primarily on warnings and persuasion to more visibility and using a range of powers to address the substantive issues causing concern and resulting in complaints. Increased compliance activity was to focus on all aspects of offending, including willful obstruction, disturbance, interference, causing alarm, distress, intimidation, or harm to any other person in their use or enjoyment of that public place. These are in line with specific clauses within the PSN Bylaw.

11. Following the adoption of this change in approach and the deployment of additional staff, obstruction, which has been the primary concern of business groups and residents in the central area, has decreased.

12. The additional staffing provided by funding through the mayor’s office in the central city has had a significant effect on the ability to address breaches of the bylaw as they happen and ultimately change behaviour. At the start of the increased number of patrols, incidents increased but have now started to decline.

13. Staff write detailed reports of what they observe while on patrol and those are providing a rich source of intelligence. Between 12 April and 4June 2024, 1,985 patrol reports were prepared and of those 595 noted issues found during proactive patrols as opposed to a response to a complaint.

14. Many of the issues have involved ‘street whanau’ but as staff have had more interaction with the people involved it has become clear that many are not homeless and merely frequent the central city throughout the day. There also seems to be a transient population that can appear homeless but are in fact housed outside of the central area.

15. The largest proportion of incidents found were in Te Komititanga Square (81 incidents), Queens Wharf (62 incidents) and Lower Queen St (58 incidents).

16. These areas showed the largest number of incidents but were also the most heavily patrolled due to the large pedestrian count and complaints indicating they are hot spots for incidents.

17. The hot spots primarily related to encampments of ‘street whanau’ occupying large areas of footpath and public space. The primary nuisance caused was through accumulation of rubbish, obstruction, loud and sometimes abusive behaviour, damage to power outlets and urination in bushes.

18. Some issues have been challenging to effect change but all identified hot spots have been addressed with ongoing compliance observed and maintained. When new issues emerge, they are quickly addressed.

19. Complaints from members of the public have declined in recent months since the additional patrols were put in place. Between 1 February and 31 March there were a total of 24 incidents reported under the Public Safety and Nuisance Bylaw. In the following two months when patrols increased, only 19 incidents were reported.

20. Complaints relating to ‘street whanau’ initially decreased to only two in April, followed by a spike to twelve in May. These primarily related to specific hot spot locations and encampments. Following dispersal of those encampments, complaints have dropped again.

21. When homeless complaints are excluded, overall complaints have reduced to zero in May and only one up until 9 June.

22. The complaints relating to ‘street whanau’ primarily related to feeling unsafe and concerns about rubbish and mess. These are obviously not breaches of the Public Safety and Nuisance Bylaw.

Homeless response / outreach

23. With the bulk of incidents relating to the homeless, a compassionate approach is always the primary focus before any enforcement is considered. All officers are trained in recognising when someone is vulnerable and where possible, refer the individual for outreach support. This is particularly important when dealing with those affected by mental illness and / or drug / alcohol addictions.

24. The most common reports from compliance staff relate to homeless / rough sleeping (183) and alcohol / drinking / visible intoxication (137).

25. There are only six individuals who have come to notice on multiple occasions. The most being eight interactions for one individual, with six of those being recorded as a homeless interaction and two being for causing a disturbance.

26. Over the last five months a total of 14 individuals have been assisted into some form of housing as a direct result of interventions by compliance staff in the central city. Many of those initial interactions are from CityWatch Compliance Wardens who build up relationships with those individuals to not only manage behaviour, but to understand their needs, gain their trust and persuade them to accept help.

27. No individuals have been identified at this stage for escalated enforcement action as the majority of repeat issues have been encountered by staff as opposed to being from complaints.

28. Patrolling staff are assisted by a Compliance Officer who has a portfolio for dealing with homeless people that come to our attention. The introduction of a dedicated officer and their links to Council’s Community Impacts team and external outreach support networks, has been instrumental in making a significant difference on the streets of central Auckland as well as across the region.

29. Encampments present the largest challenge. The clearing of encampments involves the serving of notices under the Public Safety and Nuisance Bylaw for nuisance. The individuals are given notice to vacate the site and outreach is offered. A subsequent visit ensures the area is cleared and any rubbish is removed. Ongoing monitoring has kept the areas clear.

Disturbance from loudspeakers and PA systems

30. An ongoing issue for city center residents is the use of loudspeakers and PA systems by street preachers. Addressing these issues through noise complaints has proved ineffective for various reasons and the use of the bylaw has met challenges in relation to breaching individual’s rights with regards to freedom of religious expression and potential breach of the Bill of the Rights.

31. At any one time there can be as many as four to five separate groups performing and preaching in prominent areas across the central city, resulting in regular complaints from local residents.

32. A new approach to tackle this issue is focused on disturbance under the Public Safety and Nuisance Bylaw. This doesn’t require any measurement of noise, although the primary nuisance caused is through PA systems. In the same way that buskers can use PA systems that shouldn’t be heard above ambient noise beyond 30 metres, the same measure has been adopted for street preachers.

33. Advanced notice has been given to various groups that regularly preach in the central city advising them of the new approach. It outlines that we are not trying to prevent their activity and their right to preach, but we are seeking to reduce the disturbance caused by loudspeakers and PA systems operating for extended periods each weekend.

34. Should any group or individual fail to reduce the disturbance being caused, they will be issued with a bylaw notice and may have their equipment seized.

35. Local residents have been advised of the new approach and how to report incidents directly to patrolling staff.

Tātaritanga me ngā tohutohu

Analysis and advice

36. The attached appendix shows current statistics obtained from patrol reports and reported incidents.

37. There are no prosecutions currently proposed. Legal advice will be obtained prior to any escalated enforcement to ensure we have sufficient evidence to prove the elements of the offence.

38. The increase in Compliance Wardens in the central city has made a significant impact on behaviour in a relatively short space of time. Resolution to the real issues has been achieved.

39. Homelessness continues to be a concern for the public, however, the current numbers are low and the issues relatively minor. Those assisted into accommodation with care providers over the last five months through the proactive action by staff, has made a significant impact in reducing general anti-social behaviour in the community.

40. There is no evidence so far from the change in approach to enforcement that a change in the bylaw is required or warranted.

41. Whilst council powers are limited, any changes in the bylaw would not increase those powers which are contained within the Local Government Act 2002.

Tauākī whakaaweawe āhuarangi

Climate impact statement

42. This report relates to enforcement of existing bylaws and has no climate impact.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

43. Eke Panuku have been working alongside Regulatory Services to address city centre safety and support the change in approach.

44. As part of the development of the Central City Safety Plan, Connected Communities have provided input from a Community Partnerships perspective. This will assist in any alignment with support agencies such as outreach services.

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

Local impacts and local board views

45. This new approach will primarily affect the Waitemata Local Board area with the focus being on the central city, which is where CityWatch Compliance Officers are based. The board will be provided with a copy of the update.

Tauākī whakaaweawe Māori

Māori impact statement

46. We are acutely aware that within the ‘street whanau’ community, Māori are overrepresented in the central city. Care will be taken to ensure support is given where possible through iwi support groups and outreach providers.

47. Māori wardens are very much part of the security providers within the central city and work alongside council staff, Community Patrols New Zealand (CPNZ) and Police in the ‘Together for Tāmaki Makaurau’ initiative. Where necessary, their guidance and assistance will be sought in gaining compliance.

Ngā ritenga ā-pūtea

Financial implications

48. There are no financial implications with this approach. Existing resources will be utilised along with funding that has already been allocated through the Mayor’s Office from the Public Safety and Nuisance Fund.

49. Further funding has been secured to continue the expanded CityWatch for a further 2 years.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

50. The potential risks for council in being seen to penalise less fortunate members of society, in particular our ‘street whanau’, has not been evident. Whilst there have been a small number of concerns expressed about the way in which encampment clearance has been managed, predominantly the approach has been well received, particularly amongst central city residents.

Mitigation

51. Councils Community Impact Team have collaborated throughout to ensure outreach services are available when needed. This was evident in the clearance of an encampment near Te Komititanga Square and Queens Wharf where staff issued notices and arranged outreach to visit the site prior to it being cleared. Several individuals accepted assistance following the visit and the site was relatively clear when officers attended the following morning.

Ngā koringa ā-muri

Next steps

52. This approach will continue and develop over time. The additional resources from the mayor’s office will end by the end of July. Additional funding has been sourced to enable a continuation of the enhanced CitWatch Wardens for a further two years.

Ngā tāpirihanga

Attachments

No.	Title	Page
a ⇨	Public Safety and Nuisance Bylaw Enforcement Update Attachment

Ngā kaihaina

Signatories

Author

Adrian Wilson, Manager Compliance

Authorisers

James Hassall - General Manager, Licensing and Regulatory Compliance

Craig Hobbs - Director Regulatory Services

No.	Title	Page
a ⇨	Regulatory and Community Safety Committee - Forward Work Programme - 2 July 2024

Regulatory and Community Safety Committee

02 July 2024

Determination of Objection against Disqualification of Dog Owner Adam Paul North

File No.: CP2024/08183

Te take mō te pūrongo

Purpose of the report

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

Whakarāpopototanga matua

Executive summary

2. Mr North is the owner of a 3-year-old desexed female Staffordshire Bullterrier cross named Luna. On 18 October 2023 Luna was classified as menacing by deed because of her aggressive behaviour to dogs and persons.

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 30 March 2023 to 14 January 2024, Mr North has committed 8 infringement offences for which he was issued with infringement notices. Two of these offences relate to a single incident.

5. Consequently, on 18 February 2024 Animal Management decided to disqualify Mr North from owning dogs for a period of 2 years commencing on 14 January 2024, being the date of the last infringement offence, and ending on 14 January 2026. (Refer Attachment A)

6. Under section 25(2)(a) of the DCA a person is deemed to have committed an infringement offence if the infringement notice was sent to court for collection. The last infringement notice 61000509638 for offending on 14 January 2024 had not yet been sent to court when the decision was made to disqualify Mr North and should not be taken into account for the purpose of determining the start and end of the period of disqualification. The period of disqualification should thus run from 31 October 2023 up to and including 30 October 2025.

7. The effect of the disqualification is that Mr North:

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.

8. Mr North objects to his disqualification claiming that the complaints are unsubstantiated and are from only one person who has a personal issue with him. He supplied a list signed by neighbours and work colleagues in support of Luna’s good behaviour. (Refer Attachment B).

9. The complaints are from more than one neighbour, and they are substantiated by written formal statements and photos of Luna at large on numerous occasions. It is conceded that Luna may not be human aggressive but is showing territorial aggression towards dogs which may pose a safety risk to others.

10. 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.

11. 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 Community Safety Committee (the committee) must hear the objection and decide whether to:

a) Uphold the disqualification, or

b) Bring forward the date of termination, or

c) Immediately terminate the disqualification.

12. Mr North 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) kohuki / hear and determine the objection, and

b) bring forward the date of termination of the disqualification of Mr Adam Paul North to 30 October 2025.

Horopaki

Context

13. 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.

14. 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 North was disqualified

15. Between the period 13 December 2022 to 14 January 2024 Animal Management has received 9 complaints about Luna.

16. The complaints are summarised in the table below.

No.	Offence date	RFS	Circumstances of offence	Outcome
1.	13/12/2022	8101175861	Luna rushed at the complainant and her dogs on the shared driveway. Mr North called Luna and took her back by her harness. Complainant had previously expressed their concern about the dog being at large and exhibiting territorial aggression towards neighbours and other dogs. Mr North’s property is not fully fenced but there is a pen to keep Luna confined.	Warning issued for failing to keep Luna under control.
2.	30/3 /2023	8101248107	Luna charged at the complainant’s vehicle and jumped up against it as they were driving along the shared driveway.	Infringement notice 61000447942 issued under s 53(1) for failing to control Luna.
3.	5/7/2023	8101310752	Luna was on the complainant’s property barking and growling at the complainant and their dogs. The complainant shouted out and Mr North called Luna back home. Complainant provided photo of the dog on their property.	Infringement notice 61000468761 issued under s 53(1) for failing to control Luna.
4.	14/7/2023	8101313684	Luna rushed at the complainant as they were walking down the shared driveway. Mr North’s son pulled Luna away and Mr North called Luna back. Mr North denied that his dog had left his property.	AMO educated Mr North that shared driveways are public places where dogs must be controlled on leash.
5.	6/10/2023	8101369167	On 6/10/2023 Luna walked towards the complainant’s property. Complainant used leaf blower and yelled at the dog to scare it away. Mr North called Luna back to his property. Luna was not registered for the financial year 2023 - 2024.	Mr North was aware of these incidents. AMO educated Mr North on possible probationary classification and disqualification due to breaches of the DCA. Infringement notice 61000488991 issued under s 42 for failing to register dog Infringement notice 61000488983 issued under s 20(5) for failing to keep dog controlled on leash in public place.
6.	7/10/2023	8101369167	On 7/10/2023 Luna came onto complainant’s property and rushed at one of their dogs.	No action taken.
7.	20/10/2023	8101390010	Luna was at large on the shared driveway barking at the complainant’s dog that was being taken for a walk. The complainant was scared and hid with their dog behind a neighbour’s house. Mr North heard the barking and took Luna back to his property.	Infringement notice 61000496935 issued under s 20(5) DCA for failing to keep dog on leash in public place Warning of possible disqualification or probationary classification.
8.	21/10/2023	8101379018	Complainant provided CCTV footage of Luna at large on their property.	Infringement notice 61000491186 issued under s 20(5) for failing to keep dog controlled on leash in public place. Luna classified as menacing by deed under s 33A. Notice served on 26/10/2023.
9.	31/10/2023	8101386481	Luna observed running up the shared driveway towards the main road. She was unmuzzled and not on a lead. Mr North followed her moments later.	Mr North again warned about possible probationary classification and disqualification if breaches continue. Advice given on how to keep dog confined within property. AMO reminded Mr North that Luna must be muzzled when in a public place. Infringement notice 61000493421 issued under s 20(5) for failing to keep dog on leash in public place
10.	14/1/2024	8101442381	Luna rushed aggressively at the complainant when they were putting out their rubbish bins. Luna was unmuzzled. Mr North took Luna back to his property.	Dog impounded under s 57A. Dog released after property inspection. Infringement notice 61000509638 issued s 53(1) for failing to control dog. Disqualification notice issued and served on 10/2/2024.

17. Animal Management received two further complaints about Luna after Mr North’s disqualification:

No.	Offence date	RFS	Circumstances of offence	Outcome

11.

25/4/2024

8101520832

Complainant provided photos of Luna at large on the shared driveway and running across the main road.

The dog was unmuzzled.

Infringement notice 61000535825 issued under s 20(5) for failing to keep dog on leash in public place.

12.

28/5/2024

8101539902

Luna was at large at the top of the shared driveway and on the main road. Complainant provided photos of the dog at large.

The dog was unmuzzled.

After about an hour Mr North appeared and called Luna back.

The matter is still under investigation.

Mr North’s competency in terms of responsible dog ownership

18. He was educated on his obligations to keep Luna confined on his property, and to put her on a lead when she is in a public place such as a shared driveway. He has persisted in allowing Luna to roam on the shared driveway and main road.

19. He is aware that Luna must be muzzled when in a public place but failed to comply with that requirement. Luna’s aggressive behaviour intimidates the neighbours and inhibits their access to their homes and free use of the shared driveway.

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

21. Despite his disqualification, he still failed to ensure that Luna remains confined within his property.

Steps taken by Mr North to prevent further offences

22. On 22 February 2024 Mr North admitted in an email to Animal Management that he had let things slide but would going forward strictly comply with his obligation to keep Luna under control.

23. Mr North may want to address the committee about the steps he had taken to confine and control Luna.

Matters advanced by Mr North in support of his objection

24. Mr North believes that the complaints about Luna emanates from one person and that the complaints are unsubstantiated.

25. More than one person had complained about Luna’s territorial aggression and being at large on the shared driveway. These complaints are substantiated in formal statements by the complainants and by photos taken of Luna during many of the incidents.

Tātaritanga me ngā tohutohu

Analysis and advice

26. Public safety is at the heart of the DCA. For this reason, 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:

d) Disqualification is not warranted, or

e) The person should rather be classified as a probationary owner under section 21 of the DCA.

27. 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.

28. The purpose of disqualifying a person from owning a dog is to:

a) prevent re-offending by prohibiting the person from owning dogs,

b) bring home to a dog owner the consequences to their failure to comply with their obligations, and

c) act as a general deterrent to other dog owners who are lacking responsibility to comply with their obligations.

29. It was decided to disqualify Mr North for the following reasons:

a) Mr North was educated on his obligations to keep Luna confined within his property and not to allow her to roam on the shared driveway and other public places.

b) His failure to control and confine Luna has continued despite being issued with several infringement notices.

c) He persisted in failing to comply with his obligations despite having been warned that he could be disqualified or placed under probation.

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

e) Luna is a risk to road users because of her roaming and may pose a risk to other dogs because of her territorial aggression.

Period of disqualification

30. It stands to reason that the maximum period of disqualification should be reserved for the most serious offending coupled with the extent of the dog owner’s pattern of disobedience to dog control laws.

31. According to case law, some considerations that may be relevant to the length of disqualification are:

a) The seriousness of the offences committed

b) The number of offences committed

c) The absence of complaints or offending for extended periods

d) The level of the owner’s cooperation to reduce offending.

32. Applying these considerations to Mr North’s case, our advice is that a disqualification period of two years, calculated from the date of the last qualifying offence, is appropriate. This is based on the following factors:

a) the offences involved fall at the lower end of the scale of seriousness as they involve his dog being uncontrolled,

b) Over the period of 7 months, that is from 30 March 2023 to 31 October 2023 Mr North has committed 7 infringement offences for which he was issued with infringement notices.

c) Animal Management has received 2 further complaints about Luna after Mr North had received the disqualification notice, and

d) He has not shown any accountability for the offending.

33. Under section 25(2)(a) of the DCA a person is deemed to have committed an infringement offence if the infringement notice was sent to court for collection. The last infringement notice 61000509638 for offending on 14 January 2024 had not yet been sent to court when the decision was made to disqualify Mr North and should not be taken into account for the purpose of determining the start and end of the period of disqualification. The period of disqualification should thus run from 31 October 2023 up to and including 30 October 2025.

Tauākī whakaaweawe āhuarangi

Climate impact statement

34. 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

35. 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

36. 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

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

Ngā ritenga ā-pūtea

Financial implications

38. 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

39. Mr North 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

40. The committee must give Mr North 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

Elly Waitoa – Manager for Animal Management

James Hassall - General Manager, Licensing and Regulatory Compliance

Craig Hobbs - Director Regulatory Services

Regulatory and Community Safety Committee

02 July 2024

Objection to wastewater works at 38c Fairdene Avenue

File No.: CP2024/08066

Te take mō te pūrongo

Purpose of the report

1. To hear and determine an objection to proposed wastewater works at 38c Fairdene Avenue Henderson, 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 42 Fairdene Avenue, Henderson, to the public wastewater connection located on 38b and 38c Fairdene Avenue.

3. The proposed works involve the construction of a 1.6m long 150-mm diameter pipe below the shared driveway of 38b and 38c Fairdene Avenue (see Attachment A – Engineering Planning Approval). Once constructed, this pipe will be vested in the council as a public wastewater asset.

4. The owner of 38c Fairdene Avenue has 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:

a) option one: extending the public network approximately 1.6 metres from 38b and 38c Fairdene Avenue’s shared accessway (recommended option)

b) option two: extending the public network approximately 1.6 metres at a sub-optimal gradient from 38c Fairdene Avenue’s accessway

c) option three: extending the public network approximately 110 metres from the public carriageway outside of 28 Fairdene Avenue

d) option four: do nothing.

6. Option one is recommended because the route does not interfere with existing services, is the least disruptive to landowners, and provides the best outcome for the public network.

7. The council has determined that the works constitute necessary public wastewater 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.

8. The landowners have lodged a written objection to the works, on the grounds that the proposed works are not “necessary” as they do not wish to have any additional pipes on their property (see objection letter in Attachment B).

9. This report recommends that the Regulatory and Community Safety Committee endorse the proposed public wastewater works at 38b and 38c Fairdene Avenue (option 1) to manage the wastewater effects of the approved development at 42 Fairdene Avenue.

10. If the Regulatory and Community Safety Committee determines that the works should proceed, construction will begin within three months (weather dependent). It is proposed that the pipe will be installed by open trenching with the installation of a new wastewater manhole. The works will take approximately 10 days to complete.

11. 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

Recommendations

That the Regulatory and Community Safety Committee:

a) hear and determine the objections by the owner of 38c Fairdene Avenue, according to clause 1(e) of Schedule 12 of the Local Government Act 2002

b) whakatau / resolve that the council will proceed with the extension of the public wastewater network from 42 Fairdene Avenue via 38b and 38c Fairdene Avenue as shown in Attachment A – approved engineering plans, according to clause 1(e) of Schedule 12 of the Local Government Act 2002.

Horopaki

Context

12. Auckland Council is responsible for managing and maintaining the public wastewater network in Auckland, much of which is located on private land.

13. 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 wastewater drainage’.

14. 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.

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

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

Enabling wastewater management on 42 Fairdene Avenue

17. A developer has been granted resource consent by Auckland Council’s regulatory department to subdivide a property at 42 Fairdene Avenue. A condition of that resource consent is that the new development connects to the public wastewater system.

18. The developer has obtained engineering approval to connect the subdivision to the existing public wastewater line located within 38b and 38c Fairdene Avenue’s shared accessway, see Attachment A.

19. It is proposed that a 1.6 metre long, 150mm diameter wastewater pipe is constructed through open trenching. This method is proposed due to the minimal piping length and the requirement to install a new wastewater manhole on the existing line, which will require excavations within the shared accessway.

20. All excavation and removal of any vegetation or landscaping will be fully re-instated upon completion of the works.

21. The new pipe will be vested in Auckland Council as a public wastewater asset to be owned and maintained by Watercare once it is connected to the wastewater network.

Objections received from landowners at 38c Fairdene Avenue

22. Negotiations between the developer and the landowner to start the works began in May 2022. The owners of 38a and 38c Fairdene Avenue have refused to allow the developer to connect to the wastewater network via these properties.

23. The developer applied to council to provide facilitation services to help reach an agreement with the landowner. Facilitation commenced in October 2023, however no agreement was reached.

24. The council then assessed the developer’s works and determined that the works are necessary public works and qualify 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.

25. The council issued notices to the affected landowners of its intention to carry out the works under section 181 of the Local Government Act 2002, dated 20 March 2024.

26. Following the issuing of this notice, the council has continued to communicate with the landowners, however an agreement has not been reached.

27. Pursuant to schedule 12 of the Local Government Act 2002, the landowners had until 20 April 2024 to formally object to the section 181 notice. The owners of 38a and 38c Fairdene Avenue lodged their objection on 16 April 2024.

Tātaritanga me ngā tohutohu

Analysis and advice

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

29. The council analysed three alternative alignments for connecting the development at 42 Fairdene Avenue to the public wastewater system (see Attachment C).

30. These options were:

· option one: extending the public network approximately 1.6m from 38b and 38c Fairdene Avenue’s shared accessway (recommended option)

· option two: extending the public network approximately 1.6m from 38c Fairdene Avenue’s accessway

· option three: extending the public network approximately 110m from the public carriageway outside of 28 Fairdene Avenue

· option four: do nothing.

31. These three options were analysed against relevant criteria as shown below in Table 1.

Table 1. Analysis of alignment options against various criteria

	Option one (Orange in Attachment C) Recommended	Option two (Blue in Attachment C)	Option three (Purple in Attachment C)	Option six Do nothing
Interference with existing services	Minor	Minor	Major	Not applicable
Disruption to property owners	Medium	Medium	Major	Not applicable
Cost (CAPEX & OPEX)	$	$	$$$	Not applicable
Route to existing wastewater network	Direct – 5m (38b & 38c Fairdene Avenue)	Direct – 5m (38c Fairdene Avenue)	Indirect – 100m (Carriageway outside of 28 Fairdene Avenue	Not applicable
Ability for third- party properties to connect to proposed infrastructure	Moderate	Moderate	Good	NA Not applicable
Access for future maintenance	Good	Good	Good	Not applicable
Constructability risk	Low	Medium	High	Not applicable
Compliance with Council code of practice	Good	Medium	Poor	Poor
Duplication of existing wastewater infrastructure	Low	Low	High	Not applicable

Most positive

Moderate

Most negative

Key

Analysing options for wastewater management at 42 Fairdene Avenue

32. Option one considered the open cut installation of approximately 1.6m of wastewater pipe to a new manhole on the existing public wastewater line within the accessway of 38b and 38c Fairdene Avenue. This option is recommended as it does not duplicate the existing wastewater infrastructure in the area, is compliant with the Council Code of Practice and has the lowest constructability and maintenance risk.

33. Option two considered the open cut installation of approximately 1.6m of wastewater pipe to the existing wastewater manhole (which was unable to be located due to existing vegetation and planter boxes) within 38c Fairdene Avenue’s accessway. This option is considered ‘second best’ as the existing wastewater manhole is at a higher level along the existing wastewater network, resulting in at gradient which is considered too shallow and would be non-compliant with Watercare's network standards.

34. Option three considered the installation of approximately 110m of wastewater pipe under 28-40 Fairdene Avenue’s accessways. This option involves the longest length of piping and will result in the disruption to at least seven different property owners, including 38a, 38b and 38c. The installation risks and on-going maintenance costs for this option are considered high due to the duplication of existing infrastructure, the required length of pipe and three additional manholes.

35. Option four considered doing nothing. This involves leaving the developer to continue to negotiate with the owner alone. This option is not supported, as it means the developer is more likely to pursue substandard options for extending the wastewater network that do not comply with the Wastewater Code of Practice. It also increases the likelihood of infrastructure failure which would impact third party properties.

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

a) the route does not interfere with any existing services

b) the route is the least disruptive to landowners

c) the location of the works does not affect any existing structures on the landowners’ properties, resulting in minimal disturbance

d) the land proposed to be crossed is a driveway and not land that could be developed for housing or other structures

e) the pipe route is the practical and direct and provides the most optimal outcome for the public network

f) the route does not duplicate existing wastewater infrastructure.

Negotiating with the landowners

37. Negotiations with the landowners have been ongoing since May 2022. Initially negotiations were held directly between the developer and the landowners, with the council becoming involved from October 2023 onwards.

38. The council has attempted to engage with the landowners to offer advice on the proposed works and broker an agreement, refer to facilitation log Attachment D.

Summary of objections received

39. Table 2 below details the grounds upon which the landowners objects to the works and Healthy Waters response, see Attachment B Objection letter.

Table 2. Summary of objections

Objection points

Response from Healthy Waters

The Owners of 38a and 38c have objected to the proposed works on the basis that they are ‘not happy for the neighbor to undertake the proposed drainage extension works on their property’.

The proposed connection has been deemed necessary for any further development on the section at 42 Fairdene Avenue, Henderson. As per the approved Engineering Planning Approval, a connection is required. Auckland Council has assessed and recommended the most optimal route for all parties involved.

This objection is considered a civil matter and does not give weight to Auckland Council’s assessment and/or the decision to approve the works.

Recommended wastewater management option

40. Staff recommend that construction of the proposed wastewater works proceed at 38b and 38c Fairdene Avenue.

41. The works are necessary to enable development at 42 Fairdene Avenue and to meet the council’s wastewater standards. Works are expected to take up to 10 days to complete and staff will work with the landowners to ensure minimal disruption occurs.

Tauākī whakaaweawe āhuarangi

Climate impact statement

42. 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.

43. 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 Wastewater Code of Practice requires all new infrastructure to be designed to deal with these expected impacts and severe weather events.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

44. Watercare has approved the preferred option. No other services will be impacted by the preferred option.

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

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

Local impacts and local board views

46. The Maungakiekie-Tāmaki Local Board has not been consulted on the proposed wastewater 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 wastewater works outlined in this report.

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

Ngā ritenga ā-pūtea

Financial implications

49. 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.

50. 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

51. Staff have undertaken a systematic risk assessment during a thorough investigation of the four different options proposed for the wastewater connection at 42 Fairdene Avenue. Through this assessment, a preferred method has been recommended which poses the least risk for Auckland Council and the neighbouring third-party properties and provides the most optimal wastewater solution for 42 Fairdene Avenue.

52. 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: extending the public network approximately 1.6m from 38b and 38c Fairdene Avenue’s shared accessway

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 wastewater system which the council is responsible for maintaining. It is being built to the council’s standards for public wastewater 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: Low Consequence: Low	The potential for an injurious affection claim is considered low. The anticipated value of any such claim is considered low for the following reasons: The proposed pipe does not involve the taking of any land. The house is sufficiently distant from the works. The pipe predominantly follows the grassed boundary of the affected property. 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 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

53. If the Regulatory 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.

54. The Landowner has up to 14 days to lodge a further appeal to the District Court. If this occurs, then the council’s Legal Services team will support this process. If no appeal is lodged, the council would look to proceed with the works in mid-late 2024.

Ngā tāpirihanga

Attachments

No.	Title	Page
a ⇨	Engineering Planning Approval
b ⇨	Objection letter
c ⇨	Options analysis
d ⇨	Facilitation log

Ngā kaihaina

Signatories

Authors

Thomas Parsons – Intermediate Healthy Waters Specialist

Leighton Gillespie – Principal Delivery Special Projects

Authorisers

Barry Potter - Director Infrastructure and Environmental Services

Craig Hobbs - Director Regulatory Services

[1] Bylaw made under the Local Government Act 2002 and Burial and Cremation Act 1964.

[2] Committee supporting Te Urupā o Waikumete (at Waikumete Cemetery) in partnership with council.

[3] No cemeteries in Albert-Eden, Henderson-Massey, Manurewa or Orakei local board areas.

[4] Section 10AA Dog Control Act 1996 and sections 158 and 160A of the Local Government Act 2002.

[5] Topic reports analyse all components of the current Policy and Bylaw. Five Topic reports informed the Findings report.

[6] Statistical significance, calculated at 95 per cent confidence level, confirms that these differences are unlikely to be due to chance or sampling error alone, suggesting a meaningful distinction between how these groups responded to the survey questions.

[7] The Bylaws do not apply to roads that AT and AC do not control (for example motorways) or private car parking facilities.

Chairperson	Cr Josephine Bartley
Deputy Chairperson	Cr Ken Turner
Members	Houkura Member Edward Ashby
	Houkura Member Ngarimu Blair
	Cr Julie Fairey
	Cr Alf Filipaina, MNZM
	Cr Mike Lee
	Cr Kerrin Leoni
	Cr Sharon Stewart, QSM
Ex-officio	Mayor Wayne Brown
	Deputy Mayor Desley Simpson, JP

Author	Phoebe Chiquet-Kaan - Governance Advisor
Authoriser	Craig Hobbs - Director Regulatory Services