Bylaw No. 1 - Bylaw Administration 2009
Explanatory notes
This bylaw applies to all of council's bylaws.
This bylaw deals with the service of notices, and the powers
of entry that apply to other council bylaws. This bylaw allows the
council to suspend and revoke licences issued under other bylaws
and deals with offences against council bylaws. Provisions within
this bylaw allow the removal of works or things constructed in breach
of the council's bylaws. The procedure for applying for a dispensation
from any of the council's bylaws (except the Signs Bylaw and
the Billboard Bylaw) is contained in this bylaw. Dispensations for
signs and billboards shall use the provisions of those respective
bylaws. This bylaw allows the council to set fees for licences,
services and approvals from the council. Some definitions that are
common to a number of bylaws are included in this bylaw.
Pursuant to the Local Government (Auckland City)
Boundary Alteration Notice 2005 the seaward boundaries of Auckland
City were extended down to mean lower water springs. As a consequence,
the council’s bylaws apply down to mean low
water springs where applicable, and apply to areas including Hobson Bay, the Orakei
Basin, the Panmure Basin, the Tamaki Estuary and the Viaduct Basin.
Contents
1.1 Application
1.2 Interpretation
1.3 Authorised officers to continue in office
1.4 Service of notices
1.5 Powers of entry
1.6 Issue of licence, permit or approval
1.7 Suspension and revocation of licences
1.8 Offences
1.9 Removal of works in breach of bylaw
1.10 Penalties
1.11 Dispensations
1.12 Fees
1.1 Application
1.1.1
Unless the context otherwise requires,
or where otherwise expressly provided, the provisions of this bylaw
apply in respect of all other bylaws of the council.
1.2 Interpretation
1.2.1
The explanatory note at the commencement
of a bylaw, and any notes in italics within a bylaw, are not part of
the bylaw, but are intended to explain the contents of the bylaw, to
assist in the understanding of the bylaw, or to give further information
relevant to the bylaw.
1.2.2
In a bylaw, unless the context otherwise
requires or where otherwise expressly provided -
Act means the Local Government Act 2002 or the
Local Government Act 1974 unless the context requires otherwise.
Approved means approved by the council or by
any authorised committee or officer of the council.
Authorised officer means any person authorised
to administer or enforce any aspect of a bylaw.
Bylaw means an Auckland City Council bylaw.
Central area means that part of the inner city
bounded by the Waitemata Harbour and by the motorway network, Stanley
Street in Parnell and the waterfront as illustrated by figure 16.4 of
the Auckland City District Plan - Central Area Section operative 2004.
Council means the Auckland City Council or any
committee, community board or elected member of the council or officer
authorised to exercise the authority of the council.
District means the district of the Auckland City
Council.
Enforcement officer means a person appointed
by the council to exercise the powers of an enforcement officer in relation
to offences against, and infringement offences under, the Local Government
Act 2002 and any council bylaw.
Footpath has the same meaning as in the Land
Transport (Road User) Rule 2004.
Note: As at 1 January 2009 this definition
of footpath was a path or way principally designed for, and used
by, pedestrians; and includes a footbridge.
Foreshore means in relation to any tidal water
those parts of the bed, shore or banks of the tidal water as are covered
or uncovered by the flow and ebb of the tide at ordinary spring tides.
Isthmus means that part of the District excluding
the Hauraki Gulf Islands Ward.
Licence means a licence issued under a bylaw.
Licensee means the holder or holders of a licence
or permit issued under a bylaw.
Motor vehicle has the same meaning as the Land
Transport (Road User) Rule 2004 and in section 2(1) of the Land Transport
Act 1998.
Note: As at 1 January 2009 this definition
of motor vehicle was:
- a vehicle drawn or propelled by mechanical
power; and
- includes a trailer, but
- does not include:
- A vehicle running on rails; or
- A trailer (other than a trailer designed
solely for the carriage of goods) that is designed and used exclusively
as part of the armament of the New Zealand Defence Force; or
- A trailer running on 1 wheel and designed
exclusively as a speed-measuring device or for testing the wear
of vehicle tyres; or
- A vehicle designed for amusement purposes
and used exclusively within a place of recreation, amusement,
or entertainment to which the public does not have access with
motor vehicles; or
- A pedestrian-controlled machine; or
- A vehicle that the NZ Transport Agency
has declared under section 168A of the Land Transport Act 1998
as not a motor vehicle; or
- A mobility device.
NZS means a standard approved or
adopted by the Standards Council of New Zealand to be a New Zealand
Standard pursuant to the provisions of the Standards Act
1988.
Parking has the same meaning as in
the Land Transport (Road User) Rule 2004.
Note: As at 1 January 2009 this definition
of parking was:
- In relation to a portion of a road where
parking is for the time being governed by the location of parking
meters or vending machines placed under the authority of a bylaw of
a local authority, the stopping or standing of a vehicle on that
portion of the road for any period exceeding 5 minutes;
- In relation to any other portion
of a road, the stopping or standing of a vehicle (other than a
vehicle picking up or setting down passengers in a loading zone or reserved
parking area, and entitled to do so) on that portion of the road.
Permit means a written authority from the Auckland
City Council with or without prescribed conditions and charges.
Traffic sign means a traffic control device prescribed
by part 2 of Land Transport Rule 54002: Traffic Control Devices 2004.
Note: As at 1 January 2009 this definition
of a traffic sign was:
a board, plate, screen or other device, whether
or not illuminated, displaying words, figures, symbols or other
material intended to instruct, advise, inform or guide traffic on a
road; and includes a ‘children crossing’
flag, a hand-held stop sign, a parking control sign and variable message
signs; but does not include a traffic signal.
Vehicle has the same meaning as in the Land Transport
(Road User) Rule 2004 and in section 2(1) of the Land Transport Act
1998.
Note: As at 1 January 2009 this definition
of vehicle was:
- a contrivance equipped with wheels,
tracks or revolving runners upon which it moves or is moved;
and
- includes a hovercraft, a skateboard,
in-line skates and roller skates; but
- does not include:
- A perambulator or pushchair;
- A shopping or sporting trundler not
propelled by mechanical power;
- A wheelbarrow or hand-trolley;
- A pedestrian-controlled lawn mower;
- A pedestrian-controlled agricultural
machine not propelled by mechanical power;
- An article of furniture;
- a wheelchair not propelled by mechanical
power;
- Any other contrivance specified by
the rules (made under the Land Transport Act 1998) not to be
a vehicle for the purposes of this definition;
- any rail vehicle.
Vessel means a ship, boat, hovercraft, or any
other description of vessel used or designed to be used in navigation,
or raft including what is commonly known as a houseboat.
1.2.3
Except as expressly provided a bylaw shall
apply to the whole of the council’s district.
1.2.4
The headings and marginal notes to clauses
in a bylaw shall not affect the construction of the clauses.
1.2.5
References to officers of the council by
their designation shall include in each case a person appointed specially
or generally by the council to perform the duties of that office for
the time being.
1.2.6
Where pursuant to section 151(2) of the
Local Government Act 2002 a bylaw leaves any matter or thing to be regulated,
controlled or prohibited by the Council, any such regulation, control
or prohibition may be effected by resolution of the Council or its authorised
delegate.
1.3 Authorised officers and enforcement officers to continue in office
1.3.1
All Authorised Officers and Enforcement
Officers appointed by the council under or for the purposes of any repealed
bylaw, and holding office at the time of the coming into operation of
a bylaw, shall be deemed to have been appointed under that bylaw.
1.4 Service of notices
Service of notices, orders etc.
1.4.1
Except as otherwise expressly provided for
in any Act, where any notice, order or other document is required to
be served on any person for the purposes of a bylaw service may be effected
by:
- delivering it personally; or
- sending it by courier; or
- sending it by registered post to the person's
last known place of residence or business, or in the case of a company
to its registered office.
Service on persons absent from New Zealand
1.4.2
If the person being served is absent from
New Zealand, the notice may be served on his or her agent instead of
on that person.
Service on persons not known
1.4.3
If the person being served has no known
name or address, or is absent from New Zealand and has no known agent
in New Zealand, and the notice relates to any premises, then the notice
may be served on the occupier of the premises, or, if there is no occupier,
may be put up on some conspicuous part of the premises. It shall not
be necessary in any such notice to name the occupier or the owner of
the premises.
Service on deceased persons
1.4.4
If the person being served is deceased,
the notice may be served on that person's personal or legal representative
or executor.
Service by post
1.4.5
Notices sent by post shall be deemed to
have been served at the time when a letter would have been delivered
in the ordinary course of post to that location.
1.5 Powers of entry
Authorised Officers
1.5.1
For the purposes of doing anything that
he or she is empowered to do under a bylaw, and subject to compliance
with sections 171 and 173 of the Local Government Act 2002, a warranted
Authorised Officer may enter any land or building other than a dwelling house.
Enforcement Officers
1.5.2
Subject to compliance with sections 172
and/or 182 of the Local Government Act 2002, as the case may be, a warranted
Enforcement Officer may enter any land for the purpose of detecting
a breach of a bylaw or the commission of an offence or to check council
utility services.
1.6 Issue of licence, permit or approval
1.6.1
Any person doing or proposing to do anything
or to cause any condition to exist for which a licence, permit or approval
from the council is required under a bylaw or any part thereof or by
any Act, shall first obtain a licence, permit or approval from the council.
1.6.2
The council may attach to any licence,
permit or approval such terms or special terms or conditions as it deems
fit.
1.6.3
No application or request for a licence,
permit or approval from the council, and no payment of or receipt for
any fee paid in connection with such licence, permit or approval, shall
confer any right, authority or immunity on the person making such application
or payment.
1.6.4
The council may require the payment of a
fee for any licence, permit or approval.
1.7 Suspension and revocation of licences and
permits
1.7.1
Except as may be otherwise provided in
any enactment or in a bylaw:
- If a Licensee:
- acts in a manner contrary to a bylaw; or
- fails to comply with any of the terms or conditions
of a licence or permit; or
- acts in a manner which, in the opinion of the
council, renders the licensee unfit to hold such licence or permit;
or
- If any premises licensed under a bylaw or any
part of such premises:
- are no longer being used for the purpose stated
in the licence; or
- have fallen into a state of disrepair or are
not being kept and maintained in the condition required by the licence;
or
- are in any other manner failing to meet the
requirements of a bylaw or applicable regulations,
then the council may, by notice served upon the
Licensee, require that person to appear before a committee or subcommittee
of the council, at a time and place stated in the notice, to show cause
why the licence or permit should not be revoked or suspended. If the
committee or subcommittee considers the acts or failures of the Licensee,
or the circumstances of the licensed premises, so warrant or if there
is no appearance by the Licensee then the committee or subcommittee may revoke
or suspend the licence or permit for as long as it deems fit.
1.7.2
If a Licensee is convicted of an offence constituting
a breach of the terms or conditions of the licence or permit, or of
an offence concerning his or her character as a licensee, then a committee
or subcommittee of the council may revoke the licence or permit or suspend
it for as long as it deems fit.
1.7.3
A person whose licence or permit has been
suspended under clauses 1.7.1 or 1.7.2 and any premises in respect of which the licence
or permit has been suspended shall, during the period of such suspension,
be deemed to be unlicensed.
1.8 Offences
1.8.1
Every person commits an offence against
a bylaw who:
- does, or causes or permits to be done, or is concerned
in doing, anything whatsoever contrary to or otherwise than in accordance
with a bylaw;
- omits, or neglects to do, or permits to remain
undone, anything which according to a bylaw ought to be done by that
person at the time and in the manner therein provided;
- does not refrain from doing anything which that
person is required to refrain from doing under a bylaw;
- causes or permits any condition or thing to exist
or continue to exist contrary to a bylaw;
- does anything, or causes anything to exist, for
which a licence, permit or approval is required under a bylaw without
first obtaining that licence, permit or approval;
- fails, refuses or neglects to comply with any
notice direction or order served on that person under a bylaw;
- obstructs or hinders any Authorised Officer or
other person for the time being appointed, employed or authorised by
the council in the performance or attempted performance of any duty
to be discharged by such person under or in the exercise of any power
conferred by a bylaw;
- fails or refuses to comply with any notice or
conditions contained in any licence, permit or approval granted by the
council.
1.8.2
Every person commits an offence against a bylaw who:
- having constructed, erected, affixed, provided
or removed, or caused to be constructed, erected, affixed, provided
or removed any building, or any part of a building, or any work, structure,
appliance, or material of any description whatsoever, contrary to, or
otherwise than in accordance with, the provisions of a bylaw; or
- having omitted to construct, erect, affix, provide
or remove any work, appliance, or materials as required by a bylaw,
and who does not within the time stated in a
notice served on that person by the council or any Authorised Officer,
or within such extension of that time as may be granted, carry out the
remedial work specified in that notice.
1.8.3
Every notice referred to in clause 1.8.2 shall
state the time within which the remedial action is to be carried out,
and may be extended from time to time at the discretion of the council
or any Authorised Officer.
1.8.4
The provisions of clause 1.8.2 shall apply to any building, part of
a building, work, structure, appliance, or material that has, before
the coming into force of a bylaw, been constructed, erected, affixed,
provided or removed, or omitted contrary to or otherwise than as provided
by any provision of a bylaw hereby repealed, but re-enacted, or re-enacted
in substance, in any other bylaw.
1.8.5
Except where it is expressly provided otherwise
in any Act, any person (including a member of the Police) may lay an
information for an offence against a bylaw.
1.9 Removal of works in breach of bylaw
1.9.1
Pursuant to section 163 of the Local Government
Act 2002, where any work or thing is, or has been, constructed in breach
of a bylaw the council may:
- by its Authorised Officer or agent remove or alter
the said work, or thing; and
- recover the costs of removal or alteration from
the person who committed the breach.
1.10 Penalties
1.10.1
Subject to any provision to the contrary,
any person convicted of an offence against a bylaw shall be liable for
the penalties set out in section 242 of the Local Government Act 2002.
1.11 Dispensations
Grounds for dispensation
1.11.1
The council may grant a dispensation from
full compliance with any provision in a bylaw, in a case where the council
is of the opinion that full compliance would needlessly and injuriously
affect any person or business, without a corresponding benefit to the
public or any section of it.
1.11.2
The provisions of clause 1.11.1 shall not apply to any signs bylaw
or billboard bylaw made by council.
The signs bylaw and billboard bylaw have their
own dispensation provisions.
Application for dispensation
1.11.3
Written application for a dispensation
from a bylaw shall be made to the council, giving full details of the
relief sought and the reasons for the application. The council shall
consider the application and may either refuse it or grant it subject
to such conditions as it considers appropriate.
Representation by applicant
1.11.4
The applicant for a dispensation from a
bylaw may elect to appear in person or by a representative when the
application is being considered.
1.12 Fees
Setting of fees
1.12.1
Subject to compliance with section 150
of the Local Government Act 2002, the council may prescribe fees or
charges payable for a certificate, authority, approval, licence, permit
or consent from, or inspection by, the council under a bylaw or any
other enactment if that provision does not authorise the council to
charge a fee or provide that the certificate, authority, approval, licence,
permit, consent, or inspection is to be given or made free of charge.
Reduction of licence, permit or approval fees
1.12.2
Where an annual fee is payable in respect
of a licence, permit or approval issued under a bylaw, such fee shall,
where the licence, permit or approval is issued for less than one year,
be reduced by one-twelfth thereof for every complete month by which
the term of the licence, permit or approval is less than one year.
