23 March 2017
Memo to: Mayor
and Councillors
Memo
from: Administration Advisers
Subject: Council– 23 MARCH 2017 – LATE ITEM
1. Late
Item: City Amenity Bylaw 5 - 14
Document R7278
A report
titled City Amenity Bylaw is attached and to be considered as a major late item
at this meeting.
Section
46A(1)-(6) of the Local Government Official Information and Meetings Act 1987
and Standing Order 2.15.8 require that agendas are distributed with the
associated reports. As this report was not distributed with the agenda
for this meeting, it must be treated as a major late item to be considered at
this meeting.
In accordance
with section 46A(7) of the Local Government Official Information and Meetings
Act 1987 and Standing Order 3.7.5, a procedural resolution is required before a
major item that is not on the agenda for the meeting may be dealt with.
In accordance
with section 46A(7)(b)(i) the reason why the item was not on the agenda is
because it was awaiting a decision from the Planning and Regulatory Committee
to refer the matter to Council.
In accordance
with section 46A(7)(b)(ii) the reason why discussion of this item cannot be
delayed until a subsequent meeting is because a resolution on the matter is
required before the next scheduled meeting of the Council to enable a timely
decision to be made.
Recommendation
That the Council
Considers the item regarding City
Amenity Bylaw at this meeting as a major item not on the agenda, pursuant to
Section 46A(7)(a) of the Local Government Official Information and Meetings Act
1987, to enable a timely decision to be made.
2. Late
Item: Draft City Amenity Bylaw Proposed for Consultation 15 - 36
Document
R7352
A report
titled Draft City Amenity Bylaw Proposed for Consultation is attached and to be
considered as a major late item at this meeting.
Section
46A(1)-(6) of the Local Government Official Information and Meetings Act 1987
and Standing Order 2.15.8 require that agendas are distributed with the
associated reports. As this report was not distributed with the agenda
for this meeting, it must be treated as a major late item to be considered at
this meeting.
In accordance
with section 46A(7) of the Local Government Official Information and Meetings
Act 1987 and Standing Order 3.7.5, a procedural resolution is required before a
major item that is not on the agenda for the meeting may be dealt with.
In accordance
with section 46A(7)(b)(i) the reason why the item was not on the agenda is
because it was awaiting a decision by Council at its meeting on 23 March 2017.
In accordance
with section 46A(7)(b)(ii) the reason why discussion of this item cannot be
delayed until a subsequent meeting is because a resolution on the matter is
required before the next scheduled meeting of the Council to enable a timely
decision to be made.
Recommendation
That the Council
Considers the item regarding Draft
City Amenity Bylaw Proposed for Consultation at this meeting as a major item
not on the agenda, pursuant to Section 46A(7)(a) of the Local Government
Official Information and Meetings Act 1987, to enable a timely decision to be made.
3. Late
Item: Mayor's Report
Document
R7384
A public
excluded report titled Mayor’s Report is to be considered as a major late
item at this meeting. This report was listed as item 6 on the public
excluded agenda for the Council meeting on 23 March 2017 to ensure elected
members were aware that it would be presented to this meeting.
Section
46A(1)-(6) of the Local Government Official Information and Meetings Act 1987
and Standing Order 2.15.8 require that agendas are distributed with the associated
reports. As this report was not distributed with the agenda for this
meeting, it must be treated as a major late item to be considered at this
meeting.
In accordance
with section 46A(7) of the Local Government Official Information and Meetings
Act 1987 and Standing Order 3.7.5, a procedural resolution is required before a
major item that is not on the agenda for the meeting may be dealt with.
In accordance
with section 46A(7)(b)(i) the reason why the item was not on the agenda is
because it came to hand after the agenda had been distributed.
In accordance
with section 46A(7)(b)(ii) the reason why discussion of this item cannot be
delayed until a subsequent meeting is because it relates to an item on the
Council agenda for 23 March 2017 – the receipt of minutes of the Chief
Executive Employment Committee meeting held on 28 February 2017.
Recommendation
That the Council
Considers the public excluded item
regarding Mayor’s Report at this meeting as a major item not on the
agenda, pursuant to Section 46A(7)(a) of the Local Government Official
Information and Meetings Act 1987, to enable a decision to be made which
relates to another item on the Council agenda for 23 March 2017 - the receipt
of minutes of the Chief Executive Employment Committee meeting held on 28
February 2017.
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Council
23 March 2017
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REPORT R7278
City
Amenity Bylaw
1. Purpose
of Report
1.1 To determine, in accordance
with section 155 of the Local Government Act 2002 (LGA), whether a bylaw is the
most appropriate way of addressing the perceived problems in the Nelson City
Centre.
2. Summary
2.1 Nelson City Council (NCC) has
a number of bylaws for issues related to Parking and Vehicle Control, Speed
Limits, Trade Waste, Navigation Safety, Control of Dogs, Water Supply,
Wastewater, and Urban Environments. The Urban Environments Bylaw 2015
contains some provisions about amenity values and public order, for example
regulation of busking, trading in public places and use of rubbish bins.
2.2 Recent events have revealed a
gap in the NCC bylaws regarding safety, placement of things in public places,
occupation of public places, ability to limit and remove rubbish and material
placed in public places and generally maintain the ambience of the City Centre.
2.3 The New Zealand Public Places
Model Bylaws (‘Model Bylaws’) NZ Standards 1999 provide guidance on
provisions councils may wish to include in their bylaws, although some of the
models have not been updated to align with recent legislation.
2.4 Councils throughout New
Zealand have various bylaw provisions dealing with the issues mentioned above
in paragraph 2.2.
2.5 Section 155 of the Local
Government Act (‘the LGA’) requires the following:
Determination whether bylaw
made under this Act is appropriate
(1) A
local authority must, before commencing the process for making a bylaw,
determine whether a bylaw is the most appropriate way of addressing the
perceived problem.
(3)
No bylaw may be made which is inconsistent
with the New
Zealand Bill of Rights Act 1990, notwithstanding section
4 of that Act.
2.6 This
report outlines the first step of the formal bylaw making process as required
by section 155(1).
2.7 The
New Zealand Bill of Rights Act 1990 (NZBORA) and bylaws were considered in the
High Court in the case of Wadsworth and Bright v Auckland Council and the
Attorney General [2013] NZHC 413. This case provides a methodology by
which bylaws can be assessed in light of NZBORA and will be detailed in a
subsequent report to Council.
3. Recommendation
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That the Council
Receives the report City Amenity
Bylaw (R7278) and its
attachment (A1726829); and
Determines
in accordance with section 155(1) of the
Local Government Act 2002, that a bylaw is the most appropriate way of
addressing the issues in the Nelson City Centre; and
Confirms
in recognition of the community interest in this matter, that the bylaw
development process, including hearings and deliberations, be considered by
full Council, noting that the Planning and Regulatory Committee referred to
Council its powers relating to a City Amenity Bylaw at its meeting on 23
March 2017.
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4. Background
4.1 On
15 December 2016 the Council directed a bylaw be prepared to address the
problems of public disorder and loss of amenity value in the City Centre.
This report takes the first step in the process of drafting a bylaw namely
assessment in accordance with section 155 of the LGA.
4.2 The
circumstances giving rise to this assessment arise, originally, from problems
in dealing with the activities of Mr Lewis Stanton and also from the subsequent
behaviour of members of the public as well as the impact on amenity values.
4.3 The
problems are well known. They began in 2011 and have culminated in Mr
Stanton protesting from a possibly permanent site on Trafalgar Street outside
Farmers Department Store: Mr Stanton lives and sleeps on the site, including
cooking and hanging out his washing.
4.4 This
has resulted in:
· Impact on the
ambience of the City Centre;
· An accumulation of
materials on the footpath;
· Anti-social
behaviour by members of the public; and
· Safety concerns
for the protester and for members of the public.
4.5 The
matter has become one of public concern with members of the public and
retailers upset by the occupation and demanding that “something be
done”; some members of the public feel intimidated; others support the
occupation.
4.6 The
Police have made arrests and taken action under the Crimes Act in relation to
assaults where tempers flared at the occupation site.
4.7 Existing
CCTV that operates 24/7 has not deterred anti-social behaviour.
4.8 The
Nelson Resource Management Plan includes objectives and policies which seek to
maintain amenity values within the City Centre as follows:
· Policy IC1.8 -
Activities at ground floor level in main pedestrian areas are to be attractive
and interesting to pedestrians and promote rather than inhibit pedestrian flow;
· Objective IC2 - Streets
and public areas are pleasant and attractive for people to visit and use;
· Policy IC4.1 - Offer a
diversity of activities that do not adversely affect the environment is sought.
· Policy IC4.2 –
Activities should not rise to levels of noise, smell, dust, and smoke, or
traffic, landscape, aesthetic or other adverse effects which will detract from
the character being sought for the City Centre and City Fringe areas.
4.9 The
Council has explored various options to resolve the problems but attempts to
negotiate a solution have reached an impasse and actions in trespass and
obstruction (Summary Offences Act) have not been successful.
4.10 Consideration
has been given to other remedies using the Public Works Act, breach of bylaw
provisions against begging, civil action of trespass, nuisance, Freedom Camping
Act 2011 (FCA), Local Government Act (section 357), and the Resource Management
Act: none are particularly suitable.
4.11 Nelson
City does not have bylaws that can deal with the issues that have arisen.
The development of a bylaw to provide remedies appears to be the most
appropriate manner in which to address the problems.
5. Discussion
5.1 Bylaws
must address a perceived problem and be proportionate.
5.2 The
LGA allows Councils to make bylaws to:
· Protect the public
from nuisance; protect, maintain and promote health and safety; and minimise
offensive behaviour in public places (section 145);
· Regulate waste
water, waste management, trade wastes, trading in public places, solid waste,
keeping of animals, bees and poultry (section 146 (a));
· Manage, regulate
against, or protect from, damage, misuse, or loss, or for preventing the use
of, the land, structures, or infrastructure as listed in section 146 (b);
· To prevent the
spread of fires, subject to the Forest and Rural fires Act 1977, (section 146
(c)); and
· Control alcohol
(section 147).
Will a Bylaw
Address the Perceived Problem?
5.3 Nelson
has no regulatory provisions to address the issues listed in paragraph 4.4. The
problems identified impact on the usual amenity values found in a City Centre
and can be addressed through a bylaw. By introducing a bylaw the Council
will be in a position to make appropriate decisions that preserve the amenity
value of the City Centre.
5.4 In
order to address the problems a bylaw will have to include provisions that
allow the Council to:
· Make decisions providing
for the safety of protesters and members of the public;
· Make appropriate
decisions that regulate use of a public place for events or protests (as
compared to the usual use of roads to pass and repass);
· Prevent or limit the
accumulation of rubbish and material within the City Centre; and
· Remove accumulated
things, rubbish and material.
5.5 The
Model Bylaws provide guidance on provisions councils may wish to include in
their bylaws and include provisions prohibiting the following:
· Placing things or
materials in a public place that are likely to be hazardous or injurious, or
create a nuisance (cl 202.1 (a))
· Deposit of household or
trade refuse in a public litter bin (cl 202.1 (b))
· Causing or allowing any
material or thing to be deposited on a public place or road (cl 202.1 (c))
· Erecting a structure on
a public place except in compliance with a bylaw (cl 202.1 (n))
· Obstruction of a public
place (cl 203)
· Placement of any
“material or thing, including signage, amusement devises or items for
sale or hire, on any public place unless” authorised by Council (clause
205 (1))
· Assembly in a public
place (cl 209)
5.6 Relevant
excerpts of the Model Bylaws are found in Appendix 1.
5.7 Many
Councils in New Zealand have provisions of the type found in the Model Bylaws
(with appropriate amendments to suit their circumstances, recent legislation,
and case law). The provisions are designed to address the type of
problems Nelson City is experiencing.
Is the introduction of a bylaw proportionate to the
perceived problem?
5.8 The
gap in the Nelson City bylaws has been highlighted by Mr Stanton’s
actions and those of others since the situation began. The right to
protest is not questioned.
5.9 Nelson
City has attempted to resolve the issues in a number of different ways, as
detailed above. However, in order to properly address future problems of
the kind identified at paragraph 4.4 a new bylaw is required.
5.10 The
proposed bylaw will be directed at the general public and it is proposed that
it will introduce a framework for decision-making by officers to enable
appropriate decision-making in each case.
5.11 The
criteria set out in the decision-making framework will be based on case law
(particularly the Wadsworth case referred to above and existing
provisions used by other New Zealand Councils). The decision-making
framework will allow Council to make appropriate decisions where, if it is
necessary to do so, reasonable limits will be placed on the freedoms contained
in NZBORA (see further discussion below). Protests and events are not
banned outright.
5.12 A
bylaw provision requiring landowners to allow the provision of lighting under
the verandas of the City Centre will also be drafted. Such a provision
will address problems of security and improve amenity values. Lighting
and line-of-sight are regarded as important values in reducing crime through
environmental design and thereby improving safety.
Other Considerations:
Amenity
values
5.13 The Nelson Resource Management Plan aims to maintain
amenity values within the City Centre such that:
· Activities at ground floor level in main pedestrian
areas are to be attractive and interesting to pedestrians and promote rather
than inhibit pedestrian flow;
· Streets and public areas are pleasant and attractive
for people to visit and use;
· Diverse activities do not adversely affect the
environment.
5.14 In addition, Nelson has mechanisms in place (such as
regular rubbish removal, street cleaning, and gardening) to ensure the City
Centre is neat and attracts shoppers and visitors.
5.15 Whilst the right to protest, within reasonable limits,
is not incompatible with the amenity values, the accumulation of the things on
the footpath that are associated with day-to-day living is inconsistent with
the amenity values of a City Centre.
Compatibility
with existing bylaws
5.16 There are already provisions for the use of public spaces
in the City Centre for sandwich boards, retail displays, washing of vehicles,
and advertising. The new bylaw will be drafted in a manner to ensure that
it is consistent with existing bylaws.
Camping
5.17 The Freedom Camping Act 2011 (‘the FCA’)
allows freedom camping within a District unless it is restricted or banned by a
Council bylaw. The definition of freedom camping includes “to
camp (other than at a camping ground) within 200 m of a motor vehicle accessible
area or the mean low-water springs line of any sea or harbour, or on or within
200 m of a formed road or a Great Walks Track, using 1 or more of the
following:
(a)
a tent or other temporary structure:
(b)
a caravan:
(c)
a car, campervan, housetruck, or other motor vehicle.”
5.18 Freedom camping and a potential bylaw is separately
reported to the 23 March Council meeting.
Consultation:
5.19 Consultation on the draft bylaw will use the special
consultative procedure. This will ensure that all interested parties are
given an opportunity to submit their views to Council.
Enforcement
of Bylaws
5.20 If the proposed bylaw is adopted, Council will have a
choice as to how to enforce it. More importantly, Council will have a
framework by which it can work with people wishing to use publicly owned space
in the City Centre or wishing to exercise their freedoms under NZBORA within
reasonable limits.
6. Options
6.1 Council
may confirm the development of a new bylaw that addresses problems of public
disorder, safety and loss of amenity values within the City Centre, taking into
account the provisions of NZBORA. A new bylaw will enable Council to properly
address and regulate these activities.
6.2 The
alternative is to abandon the bylaw option which will leave the problems
currently experienced in the City Centre at the status quo.
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Option 1: confirm development
of bylaw
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Advantages
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· Allows
for further community discussion
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Risks and Disadvantages
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· Cost of
developing the Bylaw
· Dissatisfaction
in members of the community who support Mr Stanton
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Option 2: decide not proceed
with development of bylaw (status quo)
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Advantages
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· Requires
no further resourcing
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Risks and Disadvantages
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· Perceived
problems in the City Centre are likely to continue to impact the City Centre
amenity value
· Dissatisfaction
in members of the community who wish to see the City Centre problems solved.
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7. Conclusion
7.1 A
new bylaw is the most appropriate manner in which to address the perceived
problems in the Nelson City Centre. The proposed bylaw will be directed
at the general public and will introduce a framework for decision-making by
officers to enable appropriate reasonable decision-making in each case.
Clare
Barton
Group
Manager Strategy and Environment
Attachments
Attachment 1: Model
Bylaw excerpts (A1726829) ⇩
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Important considerations for decision making
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1. Fit
with Purpose of Local Government
The development of a new bylaw is the most cost
effective manner in which to enable Council to address the perceived problems
in the Nelson City Centre.
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2. Consistency
with Community Outcomes and Council Policy
The recommendation in this report is consistent with
Council’s Community Outcome ‘Our urban and rural environments are
people-friendly, well planned and sustainably managed’.
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3. Risk
The perceived problems in the City Centre are likely
to continue to affect the City amenity value unless a new bylaw is developed
to enable Council to address the problems.
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4. Financial
impact
Development of a new bylaw and statement of proposal
for consultation will require officer time.
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5. Degree
of significance and level of engagement
The decision to develop a bylaw is of low
significance.
However, the draft City Amenity bylaw (if developed)
will be of high significance due to community interest and will be consulted
on.
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6. Inclusion
of Māori in the decision making process
Māori have not been specifically consulted on
this report.
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7. Delegations
The Planning and Regulatory Committee referred to
Council its powers relating to a City Amenity Bylaw at its meeting on 23
March 2017.
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Model
Bylaw excerpts
Clause
202.1 Public Safety and Nuisances
Except
with the prior permission of Council or an authorized officer a person shall
not on any public place:
a) Place or leave
litter or any materials or thing or substance which are likely to be hazardous
or injurious to any person or likely to create a nuisance;
b) Deposit in or
around a public litter receptacle any household or trade refuse;…
e) Cause or allow
any material or thing to be deposited onto a public place or road;…
n) Erect or place
any structure on, over or under the public place except in compliance with any
other Part of this bylaw.
Clause
203 Obstructing Public Places
A
person shall not:
a) Obstruct the
entrances to or the exits from a public place;
b) Place or leave
any material or thing, including signage, on a public place that could obstruct
the public right of passage, without the permission of an authorized officer
and then only in accordance with such conditions as may be imposed;…
Clause
205.1 Placing of Articles on, and Damage to Public Places
A
person shall not place or leave or cause or permit to be placed or left any
material or thing, including signage, amusement devises or items for sale or
hire, on any public place unless:
a) Such action has
first been approved by Council or an authorized officer, and then only in
accordance with such conditions as he or she may impose; or
b) Such action is
taken for the purpose of regular refuse or other collections…
c) Such action is
permitted pursuant to any other Part of this bylaw.
Clause
209 Assembly
A
person shall not, without the prior consent of an authorized officer:
a) Participate in
any assembly or associate with other persons in a public place in such a way as
to impede pedestrian or vehicular traffic or to prevent or hinder ready access
to shops or premises facing onto a public place;
b) Organise or
conduct any meeting, gathering, demonstration, parade, procession, or
competition in a public place.
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Council
23 March 2017
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REPORT R7352
Draft
City Amenity Bylaw Proposed for Consultation
1. Purpose
of Report
1.1 To
approve the draft City Amenity Bylaw for consultation.
2. Summary
2.1 Sections
145 and 151 of the Local Government Act (‘the LGA’) allow Council
to make bylaws that address concerns about nuisance, health and safety and offensive
behaviour and provide broad powers of enforcement.
2.2 The
Council has determined that Nelson requires a more complete set of bylaws to
allow appropriate and proportionate decision-making to improve safety, limit
and/or remove the placement of unauthorised things in public places, manage the
occupation of public places, limit rubbish and material placed in public places
and generally maintain the ambience of the Central City and Suburban Commercial
Zones.
2.3 The
Council has determined in accordance with section 155, that a bylaw is the most
appropriate way of addressing the perceived problems affecting the city amenity
values in the CBD.
2.4 The
next steps in the bylaw making process, as set out in section 155 of the
LGA, are to determine whether the proposed bylaw is the most appropriate form
of bylaw and whether is gives rise to any implications under the New Zealand
Bill of Rights Act 1990 [‘the NZBORA’].
2.5 The
draft City Amenity Bylaw is attached at Appendix [1] for consideration.
2.6 The
proposed bylaw must be consulted on using the special consultative procedure
(s. 156 LGA). The Statement of proposal is attached at Appendix [2].
Recommendation
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That the Council
Receives
the report Draft City Amenity Bylaw Proposed for Consultation (R7352)
and its attachments (A1729361, A1729616 and A1729360); and
Determines that the
proposed City Amenity Bylaw (A1729361) is the most appropriate form of
bylaw; and
Determines that the
proposed City Amenity Bylaw affects freedoms provided by the New Zealand Bill
of Rights Act 1990 and those limits on freedoms are reasonable and proportional; and
Approves
the Statement of Proposal
(A1729360) and the draft City Amenity Bylaw (A1729361) for consultation using
the special consultative
procedure; and
Agrees
that the Mayor, Deputy Mayor and Chief Executive be delegated to approve any
minor amendments required to the draft Bylaw or Statement of Proposal prior
to consultation starting.
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4. Background
4.1 Nelson
City does not have bylaws that allow it to deal with problems such as:
· Activities that
negatively impact on the ambience of the Central City,
· Accumulation of
material and things on the footpath
· Occupation of
public places, such as during an event or protest,
· Anti-social
behaviour on the part of members of the public, and
· Safety concerns.
4.2 The
LGA contemplates that such bylaws can be made by conferring powers to local
authorities to make bylaws to protect the public from nuisance; protect,
promote and maintain public health and safety; and minimise the potential for
offensive behaviour in public places (section 145).
4.3 Section
151 provides that Councils may adopt bylaws that:
· Require
anything to be done in any manner, or within any time, that is required by the
local authority or by a person referred to in the bylaw;
· Leave
any matter or thing to be regulated, controlled, or prohibited by the local
authority by resolution either generally, for any specified classes of case, or
in a particular case; or provide for
· The
licensing of persons or property, payment of reasonable licence fees, or
recovery of costs incurred by the local authority in relation to an activity
licensed under a bylaw.
5. Discussion
5.1 The
Council has determined in accordance with section 155(1), that a bylaw is the
most appropriate way of addressing the perceived problems.
5.2 The
next steps in the bylaw making process, as set out in section 155 of the
LGA, are to determine whether the proposed bylaw is the most appropriate form
of bylaw and whether it gives rise to any implications under the NZBORA.
Form of the
Bylaw
5.3 The
proposed bylaw is the most appropriate form of bylaw. The proposed bylaw
follows that of other bylaws for Nelson City. It takes into account the
Model Bylaw provisions, avoids ambiguities and inconsistency, provides
definitions where necessary and includes criteria by which officers can make
appropriate decisions.
Implications
under NZBORA
5.4 In accordance with section 155(2)(b) if Council determines that a bylaw is the most
appropriate way of addressing the perceived problem, it must before making the
bylaw, determine whether the proposed bylaw gives rise to any implications
under the NZBORA.
5.5 Whether bylaw provisions restricting activities in a
public area are invalid because the bylaw restricts rights enshrined in NZBORA
was considered by the High Court of New Zealand in Wadsworth and Bright v
Auckland Council and the Attorney General [2013] NZHC, 413 (‘Wadsworth’).
5.6 The Court considered Auckland Bylaw 20 in light of the
occupation of Aotea Square in Auckland by the “Occupy”
movement. The movement had occupied and camped in Aotea Square without a
permit as required under the bylaw.
5.7 The Court in Wadsworth found that the bylaw did
interfere with the rights conferred under NZBORA but that the bylaw provisions
constituted a justified limit on those rights (paragraph 84 of the case report).
5.8 It is important to note that in Wadsworth the bylaw
already existed and the bylaw was not complied with. The Court also
placed weight on a line of international cases noting the need for the
regulatory body to have criteria or a policy by which decisions under the bylaw
are proportional to the approval sought. The Auckland bylaw contained
guidance on issuing of event permits that allowed Council officials to have
discretion (as opposed to the Bylaw making a blanket ban). A new bylaw
cannot operate retrospectively.
5.9 The
proposed bylaw will be directed at the general public and it is proposed that
it will introduce a framework for decision-making by Officers to enable
appropriate decision making in each case.
5.10 The
proposed bylaw provision relating to lighting under the verandas of the Central
City will address problems of security and improve amenity values.
Lighting and line-of-sight are regarded as important values in reducing crime
through environmental design, thereby improving safety.
5.11 A bylaw provision for lighting under verandas is not
considered to be an infringement of rights covered by NZBORA.
The
Proposed Bylaw
5.12 The
proposed bylaw aims to address the problems referred to in paragraph [2.2]
above.
5.13 The
proposed bylaw includes provisions based on appropriately updated Model Bylaws
provided by Standards New Zealand. Table 1 in attachment [3] provides a guide
to the topics covered by the Model Bylaws and that are also included in the
proposed bylaw.
5.14 The
matters covered in the proposed bylaw and the Model Bylaws have long been
recognised as part of the usual regulatory framework of Councils and reference
problems that are likely to occur at a local level.
5.15 The
proposed bylaw also includes the following provisions which are not in the
Model Bylaws:
5.15.1 Clause
6 imposes a general responsibility on members of the public to act in a manner
that does not cause nuisance, that promotes public health and safety, and that
minimises potential for offensive behaviour. The provision reflects the bylaw
making power as set out in section 145 of the LGA and sets the overall tone of
the bylaw.
5.15.2 Clause
7 requires owners of buildings in the Central City to keep the property
frontage clean, well maintained and clear of weeds, rubbish, accumulated dirt
or materials. This provision is based on a provision in the Model Bylaw
for Solid Waste which bans the accumulation of refuse on any property. It
aims to encourage owners of buildings to meet the amenity values embraced by
Nelson City.
5.15.3 Clause
8.3 requires users of the footpath to leave at least 2 metres of footpath width
for pedestrians to pass to and fro. Provisions of this type are widely
used in bylaws and are designed to allow the footpath to be used for things
other than walking, for example for al fresco dining, whilst ensuring that that
families with prams and pushchairs or disabled people in wheelchairs or the
blind can easily negotiate the footpath.
5.15.4 Clause
9 introduces a provision that allows the Council to install lighting under
verandas. Verandas protrude, with Council permission, into the public
space over a footpath and installing lighting under the verandas will increase
security. The principles of crime prevention through environmental
design include lighting and clear lines of sight.
5.15.5 Clause
10 requires that nothing shall be placed in front of window displays such that
a person cannot stand within 500mm so as to view the display. The
provision is designed to complement the provisions of the Nelson Resource
Management Plan, to support the expectations of retailers that their window
displays can be viewed, and to assist members of the public who wish to view
such displays or signage.
5.15.6 Clause
12 introduces a regulatory framework for events in the Central City. Events are
defined as including protests. The provisions have been drafted after
consideration of relevant case law relating to the NZBORA, the context of those
cases and the need for reasonable decisions to be made in each circumstance.
The policies and bylaws of other Cities have also been taken into
account. Clause 12 aims to enable the Council to manage events, and
protests, as they arise from time to time. The clause requires the issue
of a permit based on criteria such as duration, location, health and safety,
noise, litter and the possibility of damage. Protests and events are not banned
outright.
5.15.7 Clause
13 is drafted to be consistent with clause 12 so that where there is an event
of long duration appropriate arrangements can be made for sleeping, but it
addresses casual sleeping on the footpath.
Consultation
5.16 A
proposed new bylaw must be consulted on using the special consultative
procedure if the bylaw is of significant public interest or has a significant
impact on the public.
5.17 The
proposed bylaw has broad consequences in relation to the public, will be of
interest to the community and it potentially places limits on freedoms
contained in NZBORA.
5.18 For
these reasons, use of the special consultative procedure is appropriate in
order to ensure that as many interested parties as possible are able to make
submissions on the proposal.
5.19 The
Statement of Proposal is attached as Appendix [2] The Statement contains a
summary of information about the bylaw, includes the decisions made by the
Council under section 155 LGA, explains how interested parties can make
submissions, specifies the consultation period (not less than 1 month), and
informs submitters of their right to be heard.
5.20 The
Statement of Proposal and the proposed bylaw will be made available in the
libraries, the Customer Service Centre and on the Nelson City Council website.
Enforcement
5.21 Adopting
a bylaw does not mean that all breaches of a bylaw will cease. Most
members of the public respect reasonable regulatory provisions, however there
may be occasions when an enforcement process is required. This means
prosecution in the District Court. There are no infringement offences for
breach of bylaws.
5.22 The
proposed bylaw aims to encourage compliance through a permit process that will
take account of the circumstance of each situation.
5.23 The
LGA provides the following powers and penalties where there is a breach of a
bylaw:
· Section 242 LGA provides
for fines of up to $20,000.
· Section 163 of the LGA
allows removal or alteration of works or things in breach of a bylaw.
· Section 162 allows
Councils to apply for an injunction.
· Sections 164-168 provide
for the Council to seize and impound property (which may be subsequently
returned or disposed of).
· Section 176 covers cost
recovery.
6. Options
6.1 Council
can proceed with the bylaw making process by approving the draft bylaw for
consultation, the preferred option or decide not to proceed with the bylaw
making process.
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Option 1: Proceed with bylaw
making process
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Advantages
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· Provides
a clear indication of Council’s intention to address the problems
in the Central City
· Allows
for community engagement
· If
adopted, the bylaw will enable Council to address problems affecting the
amenity values within the Central City
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Risks and Disadvantages
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· The
consultation process will require staff resources
· The
adoption of a new bylaw does not guarantee that the problems will cease and
Council may be required to take further action in response to breaches of the
bylaw.
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Option 2: Decide not to
proceed with bylaw making process
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Advantages
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· No
further staff resources will be devoted to the bylaw making process
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Risks and Disadvantages
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· If
no bylaw is adopted, the problems affecting the amenity values within the
Central City are likely to continue until an alternative method to address
the problems is found
· The
opportunity to engage with the community is lost
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7. Conclusion
7.1 There
is a gap in the Council bylaws in relation to maintaining the city amenity
values and it is appropriate that Council take steps to address this gap.
Clare
Barton
Group
Manager Strategy and Environment
Attachments
Attachment 1: A1729361 -
Draft bylaw - City Amenity - March 2017 ⇩
Attachment 2: A1729616
-Table1 - Model Bylaw topics included in proposed bylaw - City Amenity ⇩
Attachment 3: A1729360
- Statement of Proposal City Amenity Bylaw - March 2017 ⇩
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Important considerations for decision making
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1. Fit
with Purpose of Local Government
The proposed bylaw is the most appropriate and
cost-effective manner in which to address the problems which are affecting
the amenity value within the Central City. The consultation on
the proposed bylaw will enable Council to take into account the views of the
community in relation to the bylaw.
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2. Consistency
with Community Outcomes and Council Policy
The recommendation in the report aligns with
our Community Outcomes: - ‘Our urban and rural environments
are people-friendly, well planned and sustainably managed’, ‘Our
communities are healthy, safe, inclusive and resilient’ and ‘Our
Council provides leadership and fosters partnerships, a regional perspective,
and community engagement'
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3. Risk
If steps to address the gap in the bylaws are not
taken, the problems affecting amenity values in the Central City are likely
to continue until an alternative method to address the problems can be
found.
The adoption of a new bylaw does not automatically
guarantee that the problems will cease. Council may be required to take
further action in response to breaches of the new bylaw.
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4. Financial
impact
Staff resources will be required in order to manage
the special consultative procedure.
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5. Degree
of significance and level of engagement
This matter is of high significance because the
issues are visible in the community and are polarising. The Special
Consultative Procedure will be used in consulting on this matter.
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6. Inclusion
of Māori in the decision making process
Māori will be involved in the consultation on
the proposed Bylaw.
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7. Delegations
The Planning and Regulatory Committee resolved to
refer decisions on a City Amenity Bylaw to Council. The hearing and
deliberation of submissions will also go to full Council.
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