Item 6: Deliberations
and Decision Report on Amended Urban Environments Bylaw
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Environment and Climate Committee
24 March 2022
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REPORT R26653
Deliberations
and Decision Report on Amended Urban Environments Bylaw
1. Purpose
of Report
1.1 To
provide an analysis of the submissions and recommendations for deliberations on
the Draft Amended Urban Environments Bylaw.
1.2 To
recommend to Council adoption of the Urban Environments Bylaw.
2. Summary
2.1 Council
is reviewing the Urban Environments Bylaw (2015). Following a Special
Consultative Procedure, Council received 38 submissions on the Draft Amended
Urban Environments Bylaw. Most of these submissions related to cats, the
Trading in Public Places part of the Bylaw, control of alcohol in public places
(including reserves) and provision for golf practice in Neale Park.
2.2 The
Committee also accepted a late submission from Angela Moffatt (representing 24
residents from Weka and Tasman Streets) which was accepted by the Committee on
16 February 2022 (submissions closed on 8 December 2021). This submission asks
Council to prohibit alcohol in public places in the Wood, in the area between
the City Centre and Tasman, Weka, Wainui and Trafalgar Streets.
2.3 Following
an analysis of submissions (in Attachment 1), this report provides
recommendations for changes to the Urban Environments Bylaw.
2.4 An
updated Amended Urban Environments Bylaw 2022 is shown in Attachment 2
(A2848140). This reflects the officer recommendations to the 2015 version of
the Bylaw (as tracked changes).
3. Recommendation
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That the Environment and Climate Committee
1. Receives the Deliberations and Decision Report
on Amended Urban Environments Bylaw (R26653)
and its attachments (A2849191, A2848140); and
2. Delegates
the Chair of the Environment and Climate Committee and Group Manager
Environmental Management to approve minor corrections or amendments to the
Amended Urban Environments Bylaw prior to adoption by Council.
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Recommendation to Council
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That the
Council
1. Determines following consideration of submissions, that the amendments to the
Urban Environments Bylaw as shown in Attachment 2 (A2848140) of the
Deliberations Report on Amended Urban Environments Bylaw (R26653) are the most appropriate way of
addressing the perceived problems with the current Bylaw; are the most appropriate form of Bylaw and do
not give rise to any implications under the New Zealand Bill of Rights Act
1990; and
2. Adopts the amended Urban
Environments Bylaw as shown in Attachment 2 (A2848140) of the Deliberations
Report on Amended Urban Environments Bylaw (R26653); and
3. Determines the date that the amended Urban Environment Bylaw will commence
as being 1 June 2022.
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4. Background
4.1 Council’s
existing Urban Environments Bylaw (Bylaw) was made in June 2015 and is
currently being reviewed.
4.2 On
4 November 2021 the Environment and Climate Committee approved the Statement of
Proposal of the Draft Amended Urban Environments Bylaw and the commencement of
a Special Consultative Procedure with the submission period to run from 8
November to 8 December 2021.
4.3 A
meeting was held on 16 February 2022 to hear submissions. Additional
information was requested by the Environment and Climate Committee at the
conclusion of the hearing. This report provides that information and makes
recommendations for the Committee to consider.
4.4 Following
the close of the hearing, the Hearing Panel Chair and reporting officer met
submitter Waihaere Mason, who had indicated he wanted to be heard but had not
received confirmation of the hearing. The submitter outlined their
concerns in line with their submission. The Hearing Panel Chair asked for
information to be included in the deliberations report relating to options for
golf practice at Neale Park.
5. Discussion
– Analysis of Individual Submissions
5.1 The
analysis of individual submissions is contained in Attachment 1 (A2849191) to
this report. Most of these submissions relate to the following topics: cats,
trading in public places, control of alcohol in public places, and golf in
Neale Park.
5.2 Council
also received submissions related to: fishing on Tahunanui back beach,
caravans, trees on residential boundaries, keeping of animals, and advertising
on parked vehicles. Consideration of these submissions is included in
Attachment 1 (A2849191) and is summarised in clauses 7.65 to 7.66. No changes
are recommended in response to these submissions.
6. Further
Information Requested by the Committee
6.1 Following
the hearing of submitters on 16 February 2022, the Committee asked officers to
provide the following information:
Item
1 – Alcohol in public places
6.2 The
Committee requested data from the Police on alcohol-related issues in The Wood,
and what else the Police and Council could do to address these. A discussion on
alcohol advertising in reserves was also requested.
6.3 Council
officers have again formally written to the Police to request this information.
Alcohol advertising in reserves is discussed under Recommended Decision
4.
Item 2
– Footpaths
6.4 The
Committee requested information about Tasman District Council’s approach
to sandwich boards on the footpath, how sandwich boards are defined, how the
sandwich board provisions are implemented, clarification on the national
standards for footpath management, and consideration of the different
approaches being applied to hospitality tables and chairs compared to retail
displays.
6.5 Tasman
District Council’s Trading in Public Places Bylaw 2010 uses the
terminology ‘retail displays’ rather than ‘sandwich
boards’. Retail displays are not allowed on the footpath unless permission
has been applied for and granted. These displays are to be adjacent to the
business, not constitute a hazard for pedestrians, or limit the width of
footpath available to pedestrians to less than two metres. Tasman District
Council is currently working on the implementation processes for that Bylaw.
6.6 Sandwich
board definition – The definition is on page 9 of the Draft Amended Urban
Environments Bylaw (see Attachment 2). This definition does not differentiate
between different shapes and types of signs. However, clause 5.20.3 provides
for removal of any sandwich board which is a hazard for pedestrians due to its
design, which could include those with sharp or moving edges.
6.7 Implementation
of sandwich board provisions – Implementation of Bylaw provisions
(including placement of sandwich boards) will be assessed at officer level. The
clause 5.23 wording related to Council making decisions on sandwich boards is
recommended to be removed in response to submissions under Recommended Decision
2.
6.8 National
standards for footpath management:
· The
Living Streets Aotearoa submission referred to RTS14 which is best practice
– https://www.nzta.govt.nz/assets/resources/road-traffic-standards/docs/rts-14.pdf
· NZ4121
is a building standard and section 4 is about the accessible journey. Council
applies these standards when building or upgrading (eg ramps/ tactile pavers/
accessible carparks) – https://www.standards.govt.nz/shop/nzs-41212001
· Council
uses the Waka Kotahi Pedestrian Planning and Design Guide as part of the
engineering standards (they are referred to in section I of the Land
Development Manual). These guidelines are under review and the draft is out for
consultation – https://www.nzta.govt.nz/walking-cycling-and-public-transport/walking/walking-standards-and-guidelines/pedestrian-network-guidance/
6.9 The
following table provides a summary of the footpath width guidance in these
three sources.
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·
RTS 14
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Guideline
for facilities for blind and vision impaired pedestrians
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NZS
4121:2001
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Design for
Access and Mobility – Buildings and Associated Facilities
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NZS
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Waka
Kotahi Pedestrian Network Guidance
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Reference: 4.3 Continuous Accessible Path of
Travel
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·
Reference: 6.1(a) Footpaths, Ramps and
Landings
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Reference:
https://www.nzta.govt.nz/walking-cycling-and-public-transport/walking/walking-standards-and-guidelines/pedestrian-network-guidance/design/paths/footpath-design-geometry/footpath-width/
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·
The preferred
width is 1.8 metres (minimum width 1.5 metres), but wider is beneficial on
busy footpaths.
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·
The minimum
clear width shall be 1200 mm at kerb level.
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Wider through-route zones are generally
required in areas with:
· high pedestrian volumes, and/or
· a high number of pedestrians stopping on
the footpath.
Main
Streets with a maximum flow of 100+ people per minute: arterial streets in
pedestrian districts – a through route of 3m+).
Activity
Streets with a maximum flow of 80 people per minute: alongside parks, schools
and other major pedestrian generators – a through route of 2.4m.
Commercial/
industrial areas outside the CBD with a maximum flow of 60 people per minute
– a through route of 1.8m.
Absolute minimum – a
through route of 1.5m.
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6.10 Unequal
provision for hospitality tables and chairs on the footpath compared to retail
displays – The Committee asked Council officers to consider whether there
is an inconsistency between the Bylaw provisions for retail and hospitality
businesses. The current Bylaw provides for all businesses to display a sandwich
board on the footpath. However, there is an inconsistency across the Urban
Environments Bylaw and City Amenity Bylaw related to occupation of space on
footpaths. Other policies of Council, such as the Parking Strategy and Te
Ara ō Whakatū - the Nelson City Centre Spatial Plan also relate to the
occupation of footpaths & roads.
6.11 Occupation
of footpaths by sandwich boards and other structures is discussed under
Recommended Decision 2.
Item 3
– Keeping of animals
6.12 The
Committee requested further discussion on the SPCA’s welfare concerns
related to permanent tethering of dogs and stock, and the SPCA’s request
that roosters be permitted in the residential area on a case-by-case basis.
These matters are discussed in the ‘other submissions’ section of
this report.
Item 4
– Begging
6.13 The
Committee asked how the begging provisions in the Urban Environments Bylaw meet
the criteria under the New Zealand Bill of Rights Act 1990 (NZBORA).
6.14 The
begging provisions in the Urban Environments Bylaw have not been proposed for
amendment. The November 2014 Urban Environments Bylaw report to the Planning
and Regulatory Committee (Report A1267611), provided analysis as follows.
8.10.3 The
Council’s Senior Legal Advisor provided the following commentary on
begging as it relates to the New Zealand Bill of Rights Act 1990 (NZBORA).
8.10.4 The
provisions in NZBORA relating to freedom of expression, freedom of association
and freedom of movement do not relate to,or preclude prohibition or restriction
on begging and do not extend to the act of “begging”. It should
also be noted that section 5 of NZBORA provides that “…the rights
and freedoms contained in this Bill of Rights may be subject only to such reasonable
limits prescribed by law as can be demonstrably justified in a free and
democratic society.” That means NZBORA contemplates that some of the
rights may be subject to reasonable limits, so long as those limits are clearly
justifiable.
8.11
It comes down to the reasonableness of any provisions in a bylaw. People
who “beg” on the streets cannot be prohibited from being on the
streets, but the activity of begging by them, can be legitimately controlled or
prohibited. Begging can impinge on the freedoms and rights of others going
about their day to day activities and business, to be free from the harassment
and at times intimidation that goes with begging. It is the activity of begging
that will be controlled pursuant to any bylaw, not the freedoms enshrined in
NZBORA. Placing restrictions and limitations on begging provides reasonable
limits, justifiable in a free and democratic society, to ensure that people can
use and walk the public streets of any place unhindered by unrestrained
begging.
Item 5
– Cat management
6.15 The
Committee asked for information about Tasman District Council’s and
Marlborough District Council’s approaches to cat management.
6.16 Tasman
District Council has decided not to pursue a bylaw to mandate microchipping of
cats and proposes to adopt non-regulatory mechanisms to encourage responsible
cat ownership.
6.17 Marlborough
District Council’s Animals Bylaw 2017 states that no person may keep more
than four cats over the age of three months without the written permission of Council.
This restriction does not apply to the SPCA or other animal shelter or a
lawfully established veterinary clinic or cattery.
7. Discussion
– Recommended Decisions
7.1 The
following Committee decisions are recommended relating to the six primary
topics raised via submissions.
Recommended
decision 1 – Cats
Proposed approach
7.2 No
bylaw provisions related to cats were included in the Statement of Proposal.
Summary of submissions
7.3 Fourteen
submitters have requested that Council develop bylaw provisions to control
cats. Most of these submitters suggested limiting the numbers of cats per
household, and making microchipping and desexing compulsory. Some submissions
requested rules on feeding of feral cat colonies, and requirements to keep cats
on the owner’s property.
7.4 The
SPCA also made a verbal submission on this issue. The SPCA recognises that
bylaws will not improve cat management outcomes on their own, but considers
that bylaw provisions can complement non-regulatory methods.
7.5 Options
7.5.1 Adopt current proposal: there are no
cat-related provisions in
the
Draft Amended Urban Environments Bylaw. This is the status quo.
7.5.2 Amend
the current proposal: include provisions to limit the numbers of cats per
household and make microchipping and desexing compulsory.
Officers’
recommendation
7.6 Adopt
the current proposal. Do not include cat-related provisions in the Urban
Environments Bylaw but continue to progress the non-regulatory methods
specified in resolutions by the Environment and Climate Committee on 4 November
2021, such as preparing and promoting best practice cat ownership.
Reasons
7.7 Officers
recognise that the impact of cats on biodiversity can potentially be an issue,
including in proximity to the Brook Waimarama Sanctuary, but consider that
amending this Bylaw to require microchipping or desexing is not the most
appropriate way of addressing the problem. Council officers support a
non-regulatory approach for responsible cat management, which is also being
initiated by Tasman District Council.
7.8 The
main purpose of cat management is to improve biodiversity outcomes and this
requires a holistic and regional approach. The Urban Environments Bylaw
is not considered the most efficient mechanism for managing cats for
biodiversity purposes.
7.9 In
addition, management of domestic cats is an issue which would affect a large
proportion of Nelson residents. Due to the high level of interest, any inclusion
of controls on cats would require further engagement with the community, prior
to any regulation coming into effect.
Recommended
Decision 2 – Footpath widths, sandwich boards and retail displays
Proposed approach
7.10 The
Statement of Proposal included three changes to this part of the Bylaw:
7.10.1 Change
the requirement (related to sandwich boards) relating to the width of the
footpath which needs to be available to pedestrians from 2m to 1.5m.
7.10.2 Remove
the requirement for retailers to gain a permit before setting up a retail
display on the footpath. Instead, state that retail displays cannot be a hazard
to pedestrians, or reduce the width of the footpath available to pedestrians to
less than 1.5 metres.
7.10.3 Include
a provision enabling Council to change its approach to sandwich boards and
retail displays through a resolution.
Summary of submissions
7.11 This
part of the Bylaw attracted the most submissions, as shown below:
7.11.1 Itinerant
traders and mobile shops (one submission)
7.11.2 Commercial
services (one submission)
7.11.3 Busking
(two submissions)
7.11.4 Footpath
widths to remain clear for pedestrian use (10 submissions)
7.11.5 Sandwich
boards and retail displays (16 submission points)
7.11.6 The
proposed provision enabling Council to change its approach to sandwich boards
and retail displays through a resolution (five submissions)
7.11.7 Subsequent
changes to the City Amenity Bylaw (three submissions)
7.11.8 The
Trading in Public Places part of the Bylaw as a whole (two submissions)
7.11.9 Advertising
on parked vehicles (one submission).
7.12 Submitters
do not support a reduction in the width of the footpath which needs to be available
to pedestrians from 2m to 1.5m. Instead, submitters want to see the 2m width
maintained (at least) to make it easier for everyone to use the city centre, to
reflect the guidance of Waka Kotahi, and to align with the City Centre Spatial
Plan and with Tasman District Council’s approach.
7.13 Many
submissions also requested that Council reduce the clutter on the streets, by
changing its approach to sandwich boards. They suggested these items to be on
the kerb rather than adjacent to the shop would allow for a clear pathway along
the shop edge, as this provides a safer environment for people who are blind or
have low vision.
7.14 Allowing
for retail displays without a permit was not supported by two submitters, who
expressed concerns about street safety and commercial occupation of public
space. One of these submissions noted that even if a retail display was not
obstructing pedestrians, the effect of people gathering around a retail display
would impede other pedestrians.
7.15 Two
submitters requested that no sandwich boards be allowed on the street, and two
submitters requested that flags (a subset of sandwich boards) not be permitted.
Blind Citizens NZ, Nelson Branch also asked Council to take a more active role
in monitoring the placement, size and number of sandwich boards and other
obstacles on footpaths.
7.16 The
importance of making sure that all people, including those with mobility
issues, were able to safely and easily access the city centre was emphasised by
the Health Action Trust: “People’s mobility is a critical
element in both community and individual health; communities where mobility is
constrained or restricted in some way, and where people are deterred from
moving around freely as a result, tend to have less community connectedness and
liveliness, more issues with crime and, importantly in the case of this aspect
of the bylaw, less commercial activity.”
7.17 Three
submitters said the City Amenity Bylaw should also be changed to ensure there
is always a minimum of at least 2m clear accessible path of travel for
pedestrian use on footpaths in commercial zones and other areas where high peak
pedestrian numbers are expected.
7.18 Three
submitters supported and three submitters opposed the option of Council making
changes to the sandwich board and retail displays by resolution.
7.19 Two
submitters also made verbal submissions on this issue. Blind Citizens NZ Branch
tabled their Nelson street survey, finding 221 sandwich boards and notices on
the footpath, of which they said only seven were compliant with the Urban
Environments Bylaw. They said it is not easy for people who are blind or have
low vision to visit the Nelson city centre, and would like it to be safer and
more accessible. This would include a 2 metre minimum area for pedestrians, and
all items being placed on the kerbside rather than beside shops to provide a
more predictable environment. This includes no bikes leaned up against shops or
tables and chairs in this area.
7.20 Living
Streets Aotearoa stressed the importance of good footpath management, which
prioritises pedestrian use. Walking is important for social connections, and
for mental and physical health. It needs to be encouraged by not compromising
footpath spaces. Adequate space for pedestrians is even more important during the
Covid-19 pandemic.
7.21 Options
7.21.1 Retain
the status quo:
- The
required footpath width free for pedestrians (i.e. without retail displays and
sandwich boards) is no less than 2m.
- Retail
displays require a permit, and all shops are allowed to display one sandwich
board per frontage, which must be located immediately adjacent to the premises.
7.21.2 Adopt
the current proposal:
- The
required footpath width free for pedestrians (i.e. without retail displays and
sandwich boards) is no less than 1.5m.
- Retail
displays do not require a permit.
- All
shops are allowed to display one sandwich board per frontage, which must be
located immediately adjacent to the premises.
- Provide
for changes to the sandwich board and retail display provisions by resolution.
7.21.3 Amend
the current proposal:
- Make
the required footpath width free for pedestrians (i.e. without retail displays
and sandwich boards) no less than 2m.
- Require
a permit for retail displays.
- Require
sandwich boards and any permitted retail displays to be located beside the
building (status quo).
- Do
not provide for changes to the sandwich board and retail display provisions by
resolution.
Officers’ recommendation
7.22 Amend
the current proposal. The amendments to the current proposals include
- Retain
status quo requiring at least 2m footpath width free for pedestrians for retail
displays and sandwich boards.
- Continue
to require a permit for retail displays.
- Delete
the clauses stating that Council may make changes to the sandwich board and
retail display provisions by resolution.
7.23 Subsequent
to the adoption of the Urban Environments Bylaw officers support an aligned
review of the provisions relating to pedestrian access through the review of
the City Amenity Bylaw- due to begin in 2022, and taking account of the Te Ara
ō Whakatū - the Nelson City Centre Spatial Plan, and Parking Strategy.
These documents all contain provisions relating to use and occupation of
footpaths.
7.24 To
ensure alignment across the bylaws, Council may undertake another process and
make subsequent decisions to revoke any provisions in the Urban Environments
Bylaw which do not align with the approved approach.
Reasons
7.25 There
was substantive opposition from submitters to allowing retail displays without
a permit, as this would increase clutter on the footpath. Council officers
therefore recommend returning to the status quo approach of requiring a permit
for this activity, until a more comprehensive approach can be prepared. This
approach reflects submitter feedback and Waka Kotahi guidance, and better
aligns with the City Centre Spatial Plan.
7.26 A
clause stating that Council may make changes to the sandwich board and retail
displays by resolution is unnecessary, as further consideration can be given to
the sandwich board and retail display provisions during the review of the City
Amenity Bylaw, or via the Local Government Act provisions for amending bylaws.
7.27 Council
officers note that providing a two metre footpath width free for pedestrians
zone might not be possible in some locations in the city centre, such as on
narrower footpaths (e.g. Church St or New Street).
7.28 The
survey results from Blind Citizens NZ Nelson Branch have been referred to
Council’s Consents and Compliance Manager for review. Council usually
carries out an annual review of sandwich boards on the pavement to identify
non-compliance with the Bylaw, and to work with retailers. However, this annual
review has not been carried out over the past two years to avoid increasing the
stress retailers have been experiencing during the Covid-19 pandemic.
7.29 Council
officers will look for opportunities to have a consistent approach to footpath
management in the Nelson and Tasman regions. This will be part of the review of
the City Amenity Bylaw.
Recommended
Decision 3 – Itinerant traders and mobile shops, commercial services and
busking
Proposed approach
7.30 The
Statement of Proposal did not propose any changes to the existing provisions in
the Urban Environments Bylaw 2015. In summary, these provisions:
7.30.1 Require
a permit to carry out an activity as an itinerant trader or to operate a mobile
shop in a public space. Permit conditions are listed in the Bylaw and include:
- No
itinerant trader, or operator of a mobile shop, shall stand or remain
stationary in any public place within the City, for any period longer than 15
minutes in the case of an itinerant trader and one hour in the case of any
mobile shop.
- No
itinerant trader or operator of a mobile shop shall carry out their commercial
activity on any footpath or other public place within the Designated Commercial
Areas.
7.30.2 Require
a permit for providing commercial services in a public space.
7.30.3 Buskers
must provide their name and contact details to the Council and obtain a copy of
the rules for busking before carrying out this activity. The full list of
busking rules are listed in the Bylaw and include that no person carrying out
this activity in a public place shall:
- occupy
any footpath adjacent to any retail or other commercial premises without the
consent of the owner or Manager of such premises
- continue
to occupy any place or site on a footpath or in any public place for longer
than one hour continuously in any two-hour period.
Summary of submissions
7.31 A
comprehensive submission from Living Streets Aotearoa supports:
- the
bylaw provisions that do not allow itinerant traders and operators of a mobile
shop to carry out their commercial activity on any footpath or other public
place within the Designated Commercial Areas (which include areas zoned as
Inner City and Suburban Commercial in the Nelson Resource Management Plan)
- the
bylaw provisions that do not allow people to carry out a commercial service in
a public place without a Council permit
- the
busking rules because they avoid the risk of buskers impeding the free movement
of pedestrians.
7.32 One
other submitter made two submission points related to busking:
- Amend
the busking provisions to prohibit the use of amplifiers in the city centre due
to the impacts on retailers
- Clarify
the meaning of the last busking rule (in clause 5.16.1) “continue to
occupy any place or site on a footpath or in any public place for longer than
one hour continuously in any two hour period”. Does this mean the busker
can just move 10 metres up the road and play for another hour or not?
7.33 Options
7.33.1 Adopt
the current proposal (status quo): Continue to require a permit for itinerant
traders and mobile shops and retain the current permit conditions, require a
permit for commercial services in public places, and allow for busking provided
contact details are given to Council and retain the current busking rules.
7.33.2 Adopt
alternative: amend permit rules.
Officers’
recommendation
7.34 Adopt
the current proposal (which is retaining the status quo).
Reasons
7.35 One submission supported the status quo approach to
itinerant traders and mobile shops, and no submissions requested any other
approach.
7.36 In
response to the request to clarify the busking rule regarding how far a busker
needs to move on after playing for an hour, a busker could move to the pavement
outside an adjacent shop for the next hour, if the manager of that adjacent
shop agrees to it.
7.37 No
changes have been recommended regarding the use of amplifiers by buskers. The
busking rules in the bylaw do not allow a person to generate any noise which in
the opinion of any Police or Enforcement Officer unreasonably interferes with
the peace, comfort and/or convenience of any person or persons; or apply the
Resource Management Act provisions for the control of excessive noise.
Recommended Decision 4
– Control of Alcohol in Public Places (including Reserves)
Proposed approach
7.38 The
Statement of Proposal did not include any changes to the existing provisions in
the Urban Environments Bylaw in relation to the control of alcohol. The Bylaw
prohibits drinking of alcohol in the public places listed in Schedule A of the
Bylaw, which includes within the area bounded by and including Halifax Street,
Collingwood Street, Nile Street, Trafalgar Square (Church Hill) and Rutherford
Street.
7.39 Alcohol
is also prohibited at all times in a number of Council parks (as specified in
Schedule A), and is prohibited from 9pm to 7am in selected areas.
Summary of submissions
7.40 Nelson
Marlborough Health requested two changes to Part 6 of the Bylaw:
- Amend clause 6.11 to state that only Licensing Inspectors
can grant permits for low-risk activities involving a small amount of alcohol
that would otherwise be prohibited to ensure compliance with the Sale and
Supply of Alcohol Act 2012. The wording would be amended as follows: “A
Council permit for this activity may be granted by Council, the Chief Executive
of Council, or any Licensing Inspector appointed under section 197(1) of the
Sale and Supply of Alcohol Act 2012.”
- Add the following text to clause 6.12 of the Bylaw
(which relates to permit conditions that may be included for low-risk
activities involving a small amount of alcohol that would otherwise be
prohibited):
“The controls that may be required to ensure that anyone under the age
of 18 will not be exposed to alcohol promotions at the activity.”
7.41 Nelson
Marlborough Health also requested alcohol-related changes to Part 7 of the
Bylaw (Reserves)
- Add
a new section to the Reserves part of the Bylaw as follows: “The
advertising of alcohol (including sponsorship signage) shall not be permitted
on Reserves. Advertising of alcohol is limited to price and product range
information at point of sale within any licensed venues within reserves.”
- Advertising,
promotion or consumption of alcohol is not permitted in playground areas and
other play and activity areas including sports grounds frequented by children
and youth up to 18 years of age. Outside of the play and activity areas
frequented by children and youth, the consumption of alcohol is permitted by
individuals when consumed as part of family picnics, small social celebrations
or as part of a licensed event for which a special licence may be applied for,
or on any licensed premises situation on a Reserve.”
7.42 Options
7.42.1 Retain
the status quo: Continue to restrict consumption of alcohol in public places
specified in Schedule A of the Bylaw.
7.42.2 Adopt
the current proposal: As above (no changes were proposed to the status quo).
7.42.3 Amend
the current proposal:
- Only
provide for alcohol licensing inspectors to issue permits for low risk
activities involving a small amount of alcohol that would otherwise be
prohibited.
- Add the following text to clause 6.12: “The
controls that may be required to ensure that anyone under the age of 18 will
not be exposed to alcohol promotions at the activity.”
- Add a new section to the Reserves part of the Bylaw as
follows: “The advertising of alcohol (including sponsorship signage)
shall not be permitted on Reserves. Advertising of alcohol is limited to price
and product range information at point of sale within any licensed venues
within reserves.”
Advertising,
promotion or consumption of alcohol is not permitted in playground areas and
other play and activity areas including sports grounds frequented by children
and youth up to 18 years of age. Outside of the play and activity areas
frequented by children and youth, the consumption of alcohol is permitted by
individuals when consumed as part of family picnics, small social celebrations
or as part of a licensed event for which a special licence may be applied for,
or on any licensed premises situation on a Reserve.”
7.42.4 Adopt
an alternative approach:
- Only provide for the Chief Executive to grant permits for
low-risk activities involving a small amount of alcohol.
Officers’
recommendation
7.43 Adopt
Alternative Approach: Amend the wording of clause 6.11 to state that the Chief
Executive can grant permits for low-risk activities involving a small amount of
alcohol that would otherwise be prohibited, as follows: “A Council permit
for this activity may be granted by the Council’s Chief Executive.”
7.44 Do
not include additional text related to controlling drinking of alcohol by
people under 18, or related to advertising, promotion or consumption of alcohol
in reserves.
Reasons
7.45 Licensing
inspectors have a very specific, independent role under the Sale and Supply of
Alcohol Act 2012, related to licensed premises. This role is different to a
role for assessing appropriateness of granting permits. It is considered more
appropriate that Council controls the issuing of permits as clause 6.11 of the
Urban Environments Bylaw relates to assessing and approving events in public
places, which is already a Council responsibility.
7.46 Council
can also develop criteria for issuing permits for low-risk activities, such as
whether there are controls relating to:
- supply
of alcohol to minors
- provision
of food
- management
of intoxicated persons or nuisance.
7.47 Council
has the power to make decisions related to alcohol advertising, promotion and
consumption in reserves as the ‘owner’ of the reserve. Examples of
this approach include the Saxton Field Reserve Management Plan 2021–2031,
which includes expectations, policies and methods in clauses 4.8.1 and 4.8.2.
7.48 It
is considered important that Council manages alcohol in reserves to ensure
restrictions on signage/promotion do not limit the ability for responsible
event management and event activities.
7.49 Councils
and the Police also have powers to manage nuisance activities in reserves, and
will continue to exercise these powers.
Recommended Decision 5
– Golf in Neale Park
Proposed approach
7.50 The
Statement of Proposal included a change to the current Bylaw to not provide for
golf practice in Neale Park. The evidence supporting this change included
correspondence from nearby residents describing near miss incidents, where
children and babies were nearly hit by golf balls; people no longer feeling
safe to walk in Neale Park after experiencing near misses; nearby residents
finding golf balls in their backyards, and breakages of their glasshouse glass;
and regular kite days in Neale Park being cancelled due to the risk posed by
golfers.
Summary of submissions
7.51 Council
received nine submissions related to golf in Neale Park. Six supported not
providing for golf practice in Neale Park and two submitters want golf practice
to be able to continue in this park. One submission suggested new measures
(cricket nets similar to those at the Centre of New Zealand) to manage the
safety risks.
7.52 Options
7.52.1 Retain
the status quo: Continue to provide for golf practice in Neale Park.
7.52.2 Adopt
the current proposal: Do not provide for golf practice in Neale Park.
7.52.3 Adopt an alternative approach. Options considered include:
· Siting the designated
golf practice area in an alternative location in Neale Park to minimise
conflict between park users.
· Controlling
the time of day or days golf activities can occur to minimise risks of conflict
occurring, and increasing signage and monitoring.
· Removing
the designated area, with the whole park becoming available for practice,
subject to ‘good judgement’ by people practicing golf.
· Assigning
golf practice areas at an alternative park.
· Make
physical changes to the park to reduce safety risks associated with golf
practice in Neale Park, such as establishment of cricket nets similar to those
at the Centre of New Zealand.
Officers’
recommendation
7.53 The
Parks and Facilities Manager has advised that options (1 & 3 above) do not
sufficiently reduce health and safety risks. In particular, the health and
safety concern relates to people that are not expecting or prepared for a
potential hit from a golf ball as opposed to known risk in other sports which
participants have the opportunity to accept (for example, organised sports such
as rugby). Officers recommend the proposed amendment to the Bylaw is retained,
being to remove the designated golf practice area at Neale Park.
7.54 The
majority of submissions are in favour of this.
7.55 approach
and there are likely to be ongoing health and safety risks if golf practice is
allowed to continue in this location.
Recommended Decision 6
– Extension of alcohol ban to the Wood area
Proposed approach
7.56 The
Statement of Proposal does not include any proposed changes to the Control of
Alcohol in Public Places part of the Urban Environment Bylaw, or to Schedule A
which lists the public places in which alcohol is prohibited at all times, and
the public places in which alcohol is prohibited between 9pm and 7am.
Summary of the submission
7.57 A
submission from Angela Mockett (representing 24 residents in Weka Street and
Tasman Street) has requested that Schedule A (Prohibition of Alcohol in Public
Places) be amended to include The Wood area in order to assist in addressing
ongoing and rising levels of alcohol-related antisocial behaviour, public
disorder, property and vehicle damage, littering and late-night noise occurring
in their neighbourhood.
7.58 Angela
Mockett spoke to her submission at the hearing. She tabled a map which shows
the area she wished considered for inclusion in Schedule A, as an area where
alcohol is prohibited in public places. She described the impact of Paradiso
Backpacker visitors on the neighbourhood as they walk to town between 10 and
11pm and then return to the Backpackers between 2am and 3pm, including noise,
property damage, fighting, stealing and public urination and defecation. She
said the information contained in the submission meets the criteria under
section 147A of the Local Government Act, or exceeds it, and would not set a
precedent for other residential areas.
7.59 Options:
7.59.1 Retain
the status quo (which is the proposal in the Statement of Proposal): Do not
amend Schedule A of the Bylaw.
7.59.2 Adopt
an alternative approach (1): Amend Schedule A of the Bylaw to prohibit alcohol
in public places in Weka Street and Tasman Street.
7.59.3 Adopt
an alternative approach (2): Request officers to report back on options to
control alcohol in public places in the Wood area (i.e. Weka and Tasman Streets) and then consider using the Council’s resolution
power under clauses 6.6 and 6.7 of the Amended Bylaw.
Officers’
recommendation and reasons
7.60 Requesting
officers to report back on options to control alcohol in public places in the
Wood area will allow time for officers to assess evidence to support a Council
resolution on whether or not to prohibit alcohol in public places in the Wood,
where this may be appropriate.
7.61 At
the current time, Police Sergeant Kyle Bruning has advised that he is unable to
provide police statistics to support this change. However, he agrees there are
issues of disorder and nuisance as raised in the submission.
7.62 Council will need to consider the efficacy of prohibiting
alcohol in public places in The Wood. This could be one tool to manage the
situation described by the submitter, but on its own, it would not address all
issues associated with drinking at the Backpackers, or with inebriated people
walking between the Backpackers and the CBD during the night.
7.63 As
the Police have been too busy with the Covid-19 response to provide feedback on
the Bylaw up until now, it is appropriate that Council work with the Police
regarding this area and then consider making a change to the bylaw by
resolution, as provided for by clauses 6.6 and 6.7 of the Urban Environments
Bylaw.
“Addition or deletion
of places where alcohol is prohibited
6.6
The Council may from time to time pass a resolution to amend the places listed
in Schedule A to which this Bylaw applies, or amend the period during which
drinking alcohol is prohibited in a specified place.
6.7
Every resolution made to change Schedule A shall be publicly notified at least
14 days before it shall take effect.”
7.64 While
this approach will not provide an immediate response to the submission, the
provisions in the Bylaw enable Council to take action in future after further
engagement on the issue.
7.65 Reporting
back on the evidence and considering a resolution will enable Council to
consider if "there is evidence that the area to which the bylaw is
intended to apply has experienced a high level of crime or disorder that can be
shown to have been caused or made worse by alcohol consumption in the area and
that the bylaw as applied by the resolution, is appropriate and proportionate
in the light of the evidence and can be justified as a reasonable limitation on
people’s rights and freedoms” as required by section 147B of
the Local Government Act 2002.
7.66 A
delay in making this decision will still allow a change to be made (if it is
considered justified) before next summer when New Zealand’s borders are
likely to be fully open again.
Other submissions
7.67 Council
also received submissions on the following matters:
7.67.1 Fishing
on Tahunanui back beach – Do not allow fishing from the Back Beach in
Tahunanui for safety reasons – for people and for off-leash dogs.
7.67.2 Caravans
– Support for the removal of caravans provisions in the Bylaw because
people should be able to use a caravan as an accessory building.
7.67.3 Trees
on residential boundaries – Trees in Nelson parks close to residential
boundaries should be kept to a maximum height of 5m; and the Bylaw should
include provisions controlling trees on boundaries such as a maximum height of
4m within 4m of the boundary, and 7m within 7m of the boundary. Council has
rules around daylight control for houses and fence heights but anyone can plant
large trees right on the boundary.
7.67.4 Keeping
of animals – Include a provision related to animal welfare in the Keeping
of Animals part of the Bylaw, because animal welfare is an important owner
obligation), and consider allowing the keeping of roosters in residential areas
on a case-by-case basis (as a complete ban can lead to abandonment of roosters
who then become strays). The SPCA also made a verbal submission on this issue,
advising that no animals, including goats, should be permanently tethered.
7.67.5 Advertising
on parked vehicles – No advertising should be allowed on parked vehicles
on the side of any road, including cars for sale or any other items for sale,
and including promotion of candidates for local or national elections.
Officers’ recommendations
7.68 Council
officers do not recommend making any changes to the Draft Urban Environments
Bylaw in response to these submissions, for the following reasons.
7.69 Fishing
on Tahunanui back beach
7.69.1 Reasons:
Council receives very few complaints related to fishing on the back beach.
Generally, this mixed-use area is well-respected and extremely well-utilised by
the community.
7.70 Caravans
7.70.1 Reasons: The submitter supports the
proposed removal of the caravan provisions from the Bylaw (as was proposed in
the Statement of Proposal). Management of impacts
from caravans on residential amenity are best managed through the Nelson
Resource Management Plan, under the Resource Management Act. Caravans used for
residential purposes can then be treated in a similar manner to other
structures or buildings used for similar activities.
7.71 Trees
on residential boundaries
7.71.1 Reasons:
A blanket bylaw provision for trees near residential boundaries would be
difficult to manage and enforce; and would potentially lead to the loss of some
important mature specimens, including protected trees. Trees on reserves should
be assessed on a case-by-case basis. Issues related to trees and shading
between residential boundaries can be resolved informally through mediation or
formally through the District Court.
7.72 Keeping
of animals
7.72.1 Reasons:
It is not appropriate for Council to include provisions related to animal
welfare in the Urban Environments Bylaw, which is adopted and implemented in
accordance with the Local Government Act.
7.72.2 In
contrast, animal welfare offences and infringement offences are provided for in
the Animal Welfare Act 1999, which is administered by the Ministry of Primary
Industries (MPI). The SPCA and MPI are jointly responsible for enforcement of
the Animal Welfare Act. However, Council could raise the issue of permanent
tethering in its responsible dog ownership information and consider increasing
Council’s grant to the SPCA if it decides to develop a campaign related
to permanent tethering.
7.72.3 The
keeping of roosters on residential properties is not recommended as it may
create a noise nuisance to neighbours. Council receives about six complaints
per year about roosters. Having the current provision in the Bylaw enables
Council to require action to be taken in response to these complaints.
7.73 Advertising
on parked vehicles
7.73.1 Reasons: Advertising is already
managed through the Nelson Resource Management Plan rules. Adding controls
through the Bylaw would be a duplication and is not recommended.
8. Options
Analysis
8.1 The
options for each recommendation in this report have been considered separately,
as set out in Section 7 above.
New Zealand Bill of Rights
Act 1990.
8.2 In considering the submissions, and recommended options
including retention of the status quo, officers are of the view that the
proposed amendments to the Bylaw do not give rise to any conflicts with the
NZBORA.
8.3 Following consultation, the Bylaw is considered to set reasonable
limits, within the scope of responsibilities for local government set out under
the Local Government Act 2002, for managing health, safety and nuisance in
urban environments.
9. Alignment
with relevant Council Policy
9.1 The
recommendations in this report are aligned with Te Ara Whakatu City Centre
Spatial Plan; the Nelson Resource Management Plan; and provide connection to
the City Amenity Bylaw review due in 2022.
10. Conclusion
10.1 Key
issues raised by submitters related to: cats, footpath widths and other trading
in public places matters, alcohol in public places (including in reserves and
in the Wood area), and golf in Neale Park.
10.2 While
no changes are proposed in relation to cats and golf in Neale Park, changes
from the Statement of Proposal have been recommended for provisions relating to
the accessibility along footpaths – the change recommends keeping the
status quo (Part 5 of the Bylaw), with consideration of a wider review of
footpath accessibility via the City Amenity Bylaw review process, and potential
trial of kerbside sandwich boards.
10.3 The
other recommended change to the Bylaw relates to the removal of the Alcohol
Licencing Inspector role from issuing permits (Clause 6.11 of the Bylaw).
10.4 Council
may wish to address alcohol-related issues in the Wood via a separate process.
Author: Maxine
Day, Manager Environmental Planning
Attachments
Attachment 1: A2849191 -
Individual Submission Analysis ⇩
Attachment 2: A2848140
- Amended Urban Environments Bylaw ⇩
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Important considerations for decision making
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1. Fit with Purpose of Local Government
The Draft Amended Urban Environments Bylaw supports
the social, economic, environmental and cultural wellbeing of the Nelson
community by regulating activities which have the potential to cause nuisance
or a health and safety risk, which can impact on people’s experiences
of public places in Nelson.
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2. Consistency with Community Outcomes and Council
Policy
3.
The Draft Amended Urban Environments Bylaw supports the following
community outcomes:
4.
5.
• Our urban and rural environments
are people friendly, well planned and sustainably managed
• Our
communities are healthy, safe, inclusive and resilient.
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6. Risk
Not
making decisions on the Amended Urban Environments Bylaw would leave Council
relying on its existing Bylaw, which is due to expire on 2 June 2022. If a
new bylaw is not adopted by then, Council would have no ability to regulate
the matters included in the Urban Environments Bylaw 2015, and the Police
would have no enforcement powers to control the consumption and possession of
alcohol in public places.
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7. Financial impact
There are no immediate funding implications for the
Annual Plan or Long Term Plan over and above the current costs of
administration and enforcement of the bylaw.
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8. Degree of significance and level of engagement
Although the Amended Bylaw carries
over almost all of the substance of the existing Bylaw, it has generated some
public interest, particularly in relation to trading in public places.
Consultation with the community was carried out through a special
consultative procedure, in accordance with section 156 of the LGA.
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9. Climate Impact
Climate change has been considered in relation to
the decisions in this report relating to the Amended Bylaw. While the
accessibility along footpaths does have a corelation with improving modal
shift, the Amended Bylaw provisions have limited capacity to directly assist
with (or to affect) climate change mitigation or adaptation.
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10. Inclusion of Māori in the decision making
process
Consultation with each iwi
trust authorities on the proposed changes was undertaken via the Special
Consultative Procedure. No specific engagement with Māori has been
undertaken in preparing this report.
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11. Delegations
The Environment and Climate
Committee has the following delegations to consider bylaws.
Delegations:
Bylaws, within the areas of
responsibility.
Areas of responsibility:
The committee has all of the
responsibilities, powers, functions and duties of Council in relation to
governance matters within its areas of responsibility, except where they have
been retained by Council, or have been referred to other committees,
subcommittees or subordinate decision-making bodies.
The exercise of
Council’s responsibilities, powers, functions and duties in relation to
governance matters includes (but is not limited to):
· Reviewing
and determining whether a bylaw or amendment, revocation or replacement of a
bylaw is appropriate
· Undertaking
community engagement, including all steps relating to Special Consultative
Procedures or other formal consultation processes other than final approval.
Council will make all decisions
on matters that must be exercised by Council or unable to be delegated by
law. This includes, but is not limited to:
•
The power to make a bylaw.
12.
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