Agenda of Planning and Regulatory Committee

Item 6: Confirmation of minutes

N-logotype-black-wide Planning and Regulatory Committee

22 August 2019

Page No.

1. Apologies

An apology has been received from Ms G Paine

2. Confirmation of Order of Business

3. Interests

3.1 Updates to the Interests Register

3.2 Identify any conflicts of interest in the agenda

4. Public Forum

5. Chairperson's Report

6. Confirmation of minutes 9 - 13

Document number R10419

Recommendation

That the Planning and Regulatory Committee

1. Confirms the minutes of the meeting of the Planning and Regulatory Committee, held on 6 August 2019 (Attachment A2240370), as a true and correct record.

7. Deliberations on the proposed Navigation Safety Bylaw 14 - 114

Document number R10384

Recommendation

That the Planning and Regulatory Committee

1. Receives the report Deliberations on the proposed Navigation Safety Bylaw (R10384) and its attachments (A2233850 and A2233942).

Recommendation to Council

That the Council

1. Approves the amendments to the Proposed Navigation Safety Bylaw shown in Attachment 1 (A2233850), noting the following changes:

a) Update provision 1.1 to reference the correct legislation and date of the amended Bylaw coming into force;

b) Change definitions in 1.3 to:

· refer to correct legislation (under Enforcement Officer and Harbourmaster),

· correct standards and terms under the Lifejacket definition,

· add “entity” under the Marina Supervisor definition,

· add a definition for Novel Craft,

· add stand up paddle boards to the Paddle Craft definition;

· amend the Recreational Vessel definition to exclude vessels used for hire or reward and include novel craft,

· delete stand up paddle board from the Surf Board definition, and

· delete “used in navigation” term under the Vessel definition;

c) Include an exemption in 2.5 for vessels working on or under wharves;

d) Require written permission from the Harbourmaster for obstructions in 2.6 a);

e) Amend 2.7 to ensure lifejackets or personal floatation devices are on board recreational vessels and every person on a recreational vessel or novel craft less than six metres in length must wear the lifejacket. Amend and simplify the exemptions to include paddle craft in shallow waters, divers wearing a wetsuit/drysuit (unless underway), people sleeping below deck at anchor and any other exemption or exclusion under Maritime Rules Part 91;

f) Amend wording in 2.8 and 2.9 to improve certainty;

g) Delete reference to speed for the lookout requirement in 2.11;

h) Amend 2.16 c) to require marker buoys are labelled or marked with the owner’s contact details;

i) Amend 2.19 to include the ability of the Harbourmaster to declare specified areas of the harbour closed for navigation safety purposes;

j) Amend 2.20 to clarify red light use outcomes;

k) Change the words “in the vicinity” in 2.21 b) to “within 50 metres”;

l) Amend 2.26 for clarity in a), include a requirement to register the vessel details except for Yachting New Zealand and affiliated clubs and when using the trailer’s registration number in c), delete “non-mechanically powered” in clause d) and consequential deletion of clause e);

m) Add provision 2.27 to require a person in charge be identified and responsible for the safe operation of the vessel and the safety of people on board;

n) Add provision 2.28 to require forms of communication on board the vessel;

o) Add provision 2.29 on vessel load and stability;

p) Delete provision 3.3 on alcohol consumption;

q) Amend 3.11 to add that the person in charge of an unseaworthy vessel must comply with conditions imposed by the Harbourmaster or Marina Supervisor;

r) Change the word “cleaning” to “inspecting” in 3.22;

s) Amend 4.1 to include grinding operations in relation to hot work permits;

t) Delete duplicated provisions 4.2 c) to e) and 4.4;

u) Add provision 5.7 for the cruise ship anchoring area;

v) Changes to provision 6.1 to include the ability to apply for multiple events within one year in one application, to identify that on approval of the application the details of the activity will be displayed on the Council website and included in a Navigation Safety Notice and consequently delete 6.1 f);

w) Add a Navigation Safety Officer position in 6.9;

x) Amend maps 3,4 and 6 and add map 7;

y) Amend Appendix 1 to reflect regulations;

z) Delete Appendices 2 – 6 and change associated references to refer to Council’s website.

2. Agrees the amendments do not give rise to any implications under the New Zealand Bill of Rights Act 1990 and the amended Navigation Safety Bylaw is the most appropriate form of Bylaw; and

3. Adopts the Navigation Safety Bylaw as amended and appended to this report as Attachment 1 (A2233850); and

4. Determines that the Navigation Safety Bylaw will take effect from 1 October 2019.

Item 7: Deliberations on the proposed Navigation Safety Bylaw

Planning and Regulatory Committee

22 August 2019

REPORT R10384

Deliberations on the proposed Navigation Safety Bylaw

1. Purpose of Report

1.1 To provide information to assist the Committee in deliberating on the proposed Navigation Safety Bylaw (the Bylaw).

2. Summary

2.1 The Council needs to:

(a) either amend the Bylaw or decide not to make changes;

(b) determine that any amendments to the Bylaw are within the scope of the Special Consultative Procedure; and

3. Recommendation

That the Planning and Regulatory Committee

1. Receives the report Deliberations on the proposed Navigation Safety Bylaw (R10384) and its attachments (A2233850 and A2233942).

Recommendation to Council

That the Council

1. Approves the amendments to the Proposed Navigation Safety Bylaw shown in Attachment 1 (A2233850), noting the following changes:

a) Update provision 1.1 to reference the correct legislation and date of the amended Bylaw coming into force;

b) Change definitions in 1.3 to:

· refer to correct legislation (under Enforcement Officer and Harbourmaster),

· correct standards and terms under the Lifejacket definition,

· add “entity” under the Marina Supervisor definition,

· add a definition for Novel Craft,

· add stand up paddle boards to the Paddle Craft definition;

· amend the Recreational Vessel definition to exclude vessels used for hire or reward and include novel craft,

· delete stand up paddle board from the Surf Board definition, and

· delete “used in navigation” term under the Vessel definition;

c) Include an exemption in 2.5 for vessels working on or under wharves;

d) Require written permission from the Harbourmaster for obstructions in 2.6 a);

f) Amend wording in 2.8 and 2.9 to improve certainty;

g) Delete reference to speed for the lookout requirement in 2.11;

h) Amend 2.16 c) to require marker buoys are labelled or marked with the owner’s contact details;

i) Amend 2.19 to include the ability of the Harbourmaster to declare specified areas of the harbour closed for navigation safety purposes;

j) Amend 2.20 to clarify red light use outcomes;

k) Change the words “in the vicinity” in 2.21 b) to “within 50 metres”;

m) Add provision 2.27 to require a person in charge be identified and responsible for the safe operation of the vessel and the safety of people on board;

n) Add provision 2.28 to require forms of communication on board the vessel;

o) Add provision 2.29 on vessel load and stability;

p) Delete provision 3.3 on alcohol consumption;

q) Amend 3.11 to add that the person in charge of an unseaworthy vessel must comply with conditions imposed by the Harbourmaster or Marina Supervisor;

r) Change the word “cleaning” to “inspecting” in 3.22;

s) Amend 4.1 to include grinding operations in relation to hot work permits;

t) Delete duplicated provisions 4.2 c) to e) and 4.4;

u) Add provision 5.7 for the cruise ship anchoring area;

w) Add a Navigation Safety Officer position in 6.9;

x) Amend maps 3,4 and 6 and add map 7;

y) Amend Appendix 1 to reflect regulations;

z) Delete Appendices 2 – 6 and change associated references to refer to Council’s website.

2. Agrees the amendments do not give rise to any implications under the New Zealand Bill of Rights Act 1990 and the amended Navigation Safety Bylaw is the most appropriate form of Bylaw; and

3. Adopts the Navigation Safety Bylaw as amended and appended to this report as Attachment 1 (A2233850); and

4. Determines that the Navigation Safety Bylaw will take effect from 1 October 2019.

4. Background

4.1 Section 155 of the Local Government Act 2002 (LGA) requires Council to determine whether amendment, revocation or replacement of the bylaw is the most appropriate way to address any perceived problems arising from the review and, if so, whether the proposed changes are the most appropriate form of the bylaw and give rise to any implications under the New Zealand Bill of Rights Act 1990 (NZBORA).

4.2 On 28 May 2019, the Planning and Regulatory Committee received the Navigation Safety Bylaw review report R10159. A summary of the Committee’s recommendations to Council were that:

· Amendments to the Bylaw are the most appropriate way of addressing the navigation safety problems identified by the review; and

· The proposed amendments are the most appropriate form of bylaw and do not give rise to any implications under the NZBORA; and

· The Statement of Proposal be adopted and the special consultative procedure commence with the consultation period to run from 21 June to 24 July.

4.3 On 20 June 2019, the Council approved all recommendations of the Planning and Regulatory Committee.

5. Discussion

5.1 Council officers have considered whether the proposed changes give rise to any implications under the NZBORA. A bylaw is considered an appropriate way of managing a range of water based activities to minimise harm to people and property. The Navigation Safety Bylaw seeks to protect life (that is consistent with section 8 of the NZBORA) and enable the safe movement of vessels. The Bylaw controls the speed and priority of movements in areas where potential conflict and harm can occur (such as transiting through the Cut). While this could be considered a restriction of freedom of movement under section 18 of the NZBORA, the limitations are designed to restrict people’s movement and behaviour as little as is reasonably required to protect life and property. The proposed limitations are therefore considered reasonable and justified under the NZBORA.

5.2 The proposed changes to the Bylaw were open for submissions from 21 June to 24 July 2019. Ten submissions were received. The full submissions are found in Attachment 2 (A2233942). A summary of the submissions and discussion of the issues raised follows.

Summary of submissions

5.3 Three submissions support all of the proposed changes – 20391, 20433 and 20478. Mr Fletcher (20433) also identifies that:

· enforcement should be educational in the first instance;

· questions if the placing of a marker buoy is a temporary placement and there should be a season long approval for organisations such as yacht clubs;

· people should be encouraged to join Tasman Bay radio VHF; and

· reasons to close areas of the harbour need to be more clearly defined to ensure the limitation is not due to commercial requirements.

5.4 The Harbourmasters do have an educative approach to enforcing the Bylaw and only infringe activities that have a high safety risk or are repeat offenders. Reasons to close an area of the harbour are varied but are always to prevent a potential clash of activities and to promote safety. Reasons will be given in the public notice. Other suggestions are consistent with the Harbourmasters’ views.

5.5 Two submissions (20465 and 20474) seek that no changes be made to the Bylaw until there are national or regionally consistent rules. Mr Greenaway (20474) provides examples of inconsistencies and identifies boating destinations in the region.

5.6 The Harbourmasters Special Interest Group has been urging central government to change national regulations to provide consistency with current safety best practices. In the interim council bylaws are being updated when they are reviewed to better align with current safety best practices. The timing of the updating of the bylaws is varied so there will be inconsistencies until all bylaws are reviewed. It is considered better to promote a higher safety standard through the Bylaw review now rather than wait years for other bylaws and regulations to do the same.

5.7 The issues raised in the remaining five submissions are summarised in the table below:

Submitter #	Bylaw clause #	Issue	Outcome sought	Staff comment
20445 Diving Services NZ Ltd	2.5	Exclusion zone of 50m from wharves and berthed vessels	Exemption for vessels working on wharves	Current exemptions apply to vessels assisting other vessels. Agree the exemption should also include vessels working on or under wharves
	6.4	What is the definition of significant fouling?		An existing footnote provides the definition
	2.7	Requirement for divers to wear lifejackets	Exemption to include divers wearing wetsuits/ drysuits	Agree divers should be exempt from wearing lifejackets when diving but should wear life jackets while in transit or underway
20461 D Mathieson		That the building next to the boat ramp be used as a Nelson Marine Safety Centre	The vacant building be used to display safety signs, fishing regulations and contact details for further marine related information. It could be a venue for safety training and be operated as a non-profit activity.	The submission does not relate to the Navigation Safety Bylaw but the suggestions can be considered by Council’s facilities staff.
20565 Waikato Regional Council	2.7d)	Supports the proposed change on wearing life jackets	Suggest adding the wording “while underway” so people sleeping on a small yacht at anchor will not be caught by the requirement	Agree that people sleeping below deck should not be required to wear a lifejacket but people fishing or otherwise at anchor should still be wearing their lifejacket
	2.8 – 2.16, 2.18 – 2.23, 2.26, 2.28, 3.11, 3.22, 6.1, 6.2	Support these provisions
	3.16, 3.17, 3.20, 3.21, 6.3, 6.4	Not strictly navigation safety provisions	Would more usefully be considered under the RMA	All provisions to be reviewed once Nelson Plan and Marina licensing provisions are also reviewed
20569 Tasman Bay Cruising Club	2.16	The placement of marker buoys requires permission from the harbour master	Clause c) should be split in two with clause e) only referring to d). The process for obtaining permission of the harbourmaster is included in the Bylaw to provide certainty for organisations planning events. Suggest an Aquatic licence process.	Agree that the process to obtain permission should be clear but this information could be on our website to enable more flexibility to update the process when required. Note the placement of buoys associated with an event authorised under 6.1 will be authorised through that process and does not need to have a separate authorisation under this provision as per clause d).
	6.1	Events are limited to a timeframe of 10 days and require advertising	Change 6.1 to provide for an annual Aquatic licence	Agree to clarify this clause that can apply for multiple events over a season or annual timeframe. The advertising provision can be satisfied by notices on Councils website identifying the reserved areas and the issuing of a Navigation Safety Notice. This means that clause f) enabling the recovery of advertising costs from the applicant can be deleted.
	2.21 b)	The term “vicinity” lacks definition when using sound signals for events	Define vicinity	Agree. The term “vicinity” be changed to “within 50m”
	2.7d)	Typo	issix should be “is six”	Agree.
	2.24	Need to clarify in this section the type of licence should Aquatic licences be utilised	Change licence to vessel licence	Disagree as there is no need to create an Aquatic licence system with changes proposed to 6.1 as identified above.
	2.27 a) and b)	Identification of the person in charge is vague and puts undue responsibility on the person. Not consistent with the Health and Safety at work Act 2015 that holds all participants responsible for their own and others safety	Delete?	Maritime NZ rules and various other Bylaw provisions refer to a person in charge of a vessel. This provision is to emphasise those in control of the vessel should have the appropriate knowledge to ensure the safety of people on board who may not have this knowledge.
20592 Yachting NZ	2.7	Generally support, suggest additional exemptions	Exempt a person below deck from wearing a lifejacket unless expressly instructed to by the person in charge of the vessel Person in charge of the vessel can expressly authorise any person on board to not wear a lifejacket	Disagree. Not all people in charge of a vessel have had sufficient training to inform decisions on when to wear lifejackets. The weather can change without warning and already wearing the lifejacket ensures it is not forgotten when things get rough. Modern lifejackets are light and comfortable so there is no reason not to wear them (unless sleeping).
	2.26 c)	Generally support	Include Yachting NZ affiliated club’s vessels identification number	Agree as long as information on the owners is shared when requested.
	2.26 e)	Exemption for identification of a mechanically powered vessel less than 4m not consistent with other areas of the country	Raise the 4m to 6m	Agree, this will be consistent with the length of non-powered vessels.
	2.16 c)	Placement of marker buoys should not impact on yacht club operations	Simplify wording to “No person shall erect, maintain or display any sign, beacon, light, mark, buoy or other device that has the characteristics of a navigational aid and/or which may be mistaken as a navigational aid or warning, without the prior written approval of the harbourmaster.”	Disagree. This effectively deletes the requirement to have the marker buoy labelled and clearly visible for those buoys that do not need the permission of the harbourmaster to place. If the buoy becomes adrift and is not labelled there is no means to identify the owner. As per clause d) yacht club operations will be authorised through provision 6.1 and do not require additional authorisation.
	2.28	Means of communication	Support the exemption clause

6. Options

6.1 The preferred option is option 1 that includes all proposed amendments as stated in the Statement of Proposal plus additional changes in 5.7 above. Other options are to adopt the proposed Bylaw without further changes as a result of the submissions (option 2) or to keep the Bylaw unchanged (option 3).

Option 1: Adopt the proposed amended Bylaw to include all changes as publicly notified and subject to further amendments arising from the consideration of submissions as detailed in Attachment 1 (A2233850)
Advantages	· The amendments improve the clarity and intent of Bylaw provisions without adversely affecting safety · The amendments provide practical solutions for particular activities without increasing risk
Risks and Disadvantages	· The public is unaware of the further amendments arising from submissions and may have submitted on them
Option 2: Adopt the Bylaw as proposed
Advantages	· The public is aware of all changes
Risks and Disadvantages	· Some clauses are not clear or practical or unnecessarily increase requirements for specific activities as identified through the submissions
Option 3: Decide not to change the Bylaw
Advantages	· No staff time required to amend the Bylaw
Risks and Disadvantages	· Some Bylaw provisions are not fit for purpose or they remain unclear or they are not consistent with Maritime rules and national safety campaigns

7. Conclusion

7.1 The recommendation is to amend the proposed Bylaw to include the changes identified in option 1 above and then adopt the amended bylaw to take effect from 1 October 2019.

8. Next Steps

8.1 In reaching a decision regarding the proposed amended Bylaw the Council needs to:

· Determine the proposed amended Bylaw is the most appropriate form of bylaw and does not give rise to any implications under the NZBORA and;

· Set out the reasons for any decisions and convey these to submitters (section 82(1)(f) Local Government Act 2002): “That persons who present views to the local authority should have access to a clear record or description of relevant decisions made by the local authority and explanatory material relating to the decisions...”

8.2 The proposed amendments to the Bylaw are all within the scope of the Special Consultative Procedure. If the Council accepts the recommended option to adopt the Bylaw with amendments then the following are presented as potential reasons for the decision:

· to improve consistency with current national safety campaigns and best practices;

· the additional exemptions provide practical outcomes for specific activities;

· to avoid unnecessary complication and/or duplication of processes;

· to better clarify the provisions; and

· the associated safety risk of the changes are sufficiently low.

Author: Mandy Bishop, Manager Consents and Compliance

Attachments

Attachment 1: A2233850 Proposed amendments to the Navigation Safety Bylaw ⇩

Attachment 2: A2233942 Submissions on the proposed Navigation Safety Bylaw ⇩

Important considerations for decision making

1. Fit with Purpose of Local Government

Navigation safety is the responsibility of regional councils and the recommendations in this report support the performance of the Harbourmaster duties to ensure public safety.

2. Consistency with Community Outcomes and Council Policy

Enhancing navigation safety ensures the Community Outcome of having access to a range of social, education and recreational facilities and activities namely high quality water sport activities. It also ensures the safe operation of Port activities that support our region having an innovative and sustainable economy.

3. Risk

Council is responsible for ensuring navigation safety on our navigable waters. There is a moderate risk in not updating and amending the Navigation Bylaw in accordance with current national provisions and safety advice. The recommendations seek to enhance safety and reduce risk to people involved in water activities. Reducing the potential for accidents also reduces the risk to the environment from pollution. The risk in amending the Navigation Bylaw as proposed is some people may resent the changes even though they are designed for their own safety.

4. Financial impact

The recommendations will require staff time to administer the proposed changes but this is expected to be accommodated within existing resources.

5. Degree of significance and level of engagement

This matter is of medium significance because proposed changes will impact on a number of recreational sea and river activities. Consultation occurred in the form of a special consultative procedure.

6. Inclusion of Māori in the decision making process

No engagement with Māori has been undertaken in preparing this report.

7. Delegations

The Planning and Regulatory Committee has the following delegations to consider

Areas of Responsibility:

· Considering maritime and harbour safety control matters

· Bylaws

Powers to:

· Hear and deliberate on submissions to proposed changes to the Bylaw

Powers to Recommend:

· The statement of proposal for Bylaw consultation

· Final decisions on any Bylaw changes