31 THIRD AVENUE, KINGSLAND - HEARING OF OBJECTION TO NOTICE TO INSTALL A PUBLIC WASTEWATER DRAIN
Francine and Chairmaine Waldron tabled documentation
referencing communication with council regarding their notice of objection dated
10 March 2009 and submitted that the council had prematurely forwarded the case
to a hearing.
[ATTACHMENT 5]
- That, pursuant
to section 48.2(a)(i) of the Local Government Official Information and Meetings
Act 1987, the public be excluded from the deliberations of the Specialist
Hearings Subcommittee following the hearing of evidence in this matter for the
reason that a right of appeal lies in the District Court against the final
decision of the subcommittee.
CARRIED
- That, after
hearing the concerns raised by the objectors (as outlined in the Introduction,
Background and Relevant Considerations forming part of this decision), the
Specialist Hearings Subcommittee determines that the works to construct a new
public drainage line through 31 Third Avenue, Kingsland may proceed, with the
following alterations:
- The
works are to connect to the existing public drainage line, as shown on the
attached plan titled Clear Harbour Alliance Motions South Catchment Sewer
Separation Catchment 5 - Existing & Proposed Public Drainage Layout Plan dated
27/02/09
- That the
Specialist Hearings Subcommittee notes that a right of appeal to the District
Court, within fourteen days of the date of the Subcommittee's determination, is
available to the objectors.
CARRIED
Introduction
This matter relates to part of a wider drainage catchment
upgrade project being undertaken by the Auckland City Council ("the Council")
through the activities of the Council's wholly-owned water and wastewater
utility, Metrowater. Such drainage catchment upgrade projects are undertaken in
order to secure desirable community outcomes in terms of wellbeing, environment
and economics. In this regard, it is the Council's policy that all drainage
systems in its district (that is, stormwater and sewerage systems) be separated
by 2021. Metrowater has direct responsibility for achieving this goal.
The
Clear Harbour Alliance ("CHA"), a partnership between Metrowater, Works
Infrastructure, GHD Limited and Opus International Consultants, is currently
focusing on separating properties in Kingsland and Mt Eden from the combined
network. This project is expected to substantially reduce the annual volume of
sewage pollution entering the Waitemata Harbour around Westmere and Saint Mary's
Bay.
As part of this wider project, CHA is constructing a
separate drainage system in the Motions Creek catchment within which the
property subject of this matter, 31 Third Avenue, Kingsland, ("the property") is
located. In turn, and as part of the overall drainage system, it is proposed
that a public drain be installed underneath a rear portion of this property.
Such works on private land are authorised by section 181 of the Local Government
Act 2002 ("the LGA").
At the same time, the Council is obliged, pursuant to
section 181(3) of the LGA, to secure the relevant landowner's consent to the
construction of the proposed pipeline. Where such consent is not volunteered,
the Council may use the process prescribed by section 118(3)(b) and detailed in
Schedule 12 to the LGA to secure the proper authorisation.
Background
The Council served a notice, dated 3 February 2009,
pursuant to section 181(3)(b) of the LGA on the owners of 31 Third Avenue,
Kingsland, Francine and Charmaine Waldron ("the objectors"). Accordingly, the
objectors filed a written objection to the proposed works on the final day of
the appeal period. Unfortunately, this objection was directed to the Mayor's
office and it was a few days before it was received within the Council's
Environmental and Utility Management Group and acknowledged. In the meantime,
and on behalf of CHA, contractors installed a pipeline through the property, as
it was understood that no objection had been filed within the statutory
timeframe.
Due to the procedural defect, the Council chose to abandon
the initial pipeline route and start the statutory process afresh. Therefore,
on 14 April 2009, the Council served a further notice on the objectors in
respect of the property. This notice advised of a further pipeline route that
is to run close to the previously-installed and now existing pipeline. The
objectors have filed a further written objection in respect of this new pipeline
("the objection").
The Subcommittee first heard the objection on 4 August
2009. It adjourned the hearing, at the objectors' request, until 1 September
2009 to allow the parties to exchange further information. In addition, the
Subcommittee sought clarification that even though the Council had chosen to
abandon the initial pipeline route, the abandoned pipeline was an option that
could be considered as an alternative to the further pipeline route.
Under Clause 1(e) of Schedule 12 to the LGA, the
Subcommittee may determine to abandon the works proposed or proceed with the
works proposed, with or without any alterations that it thinks fit.
Relevant Considerations
At the hearing on 4 August 2009, the objectors tabled
documentation referencing communication with the Council regarding their notice
of objection dated 10 March 2009 and submitted that the Council had prematurely
forwarded the case to a hearing.
At the reconvened hearing on 1 September 2009 ("the
reconvened hearing"), the objectors tabled and spoke from a written submission,
dated 1 September 2009, headed as a memo to the "City Development Subcommittee",
from "the Waldron's". This submission set out a timeline of events and
correspondence between the parties, from the objectors' perspective.
At the reconvened hearing, the thrust of the objection was
an alleged procedural defect, namely consideration being given to altering the
proposed works to join with the existing pipeline on the objectors' property.
The objectors alleged that the Council did not follow correct process in
reaching this stage (that is, the Subcommittee reaching the stage at which it
could approve the works with alterations). Their concerns related to process
and an alleged lack of consultation on the possible outcomes.
The Subcommittee asked questions of the objectors, seeking
clarification of their concerns about the effects of the proposed pipeline. The
objectors did not provide a substantive response and simply referred back to
their concerns regarding the process followed and alleged lack of consultation
and information.
The Subcommittee also sought clarification from the Council
officers and experts present.
Michael McQuillan, Manager Environmental and Utility
Management, Auckland City Council, advised the Subcommittee of the further
information that had been provided to the objectors. He also clarified some
aspects of the proposed works, including that if the pipeline does not run
through the objectors' property, CHA would need to connect the line on another
property, which would create the need for further easements. Mr McQuillan
explained that a retrofit solution is preferable, particularly as it would
minimise cost by using an existing physical resource.
Mr McQuillan explained that while it would be technically
feasible to construct a line that avoids the objectors' property, the objectors'
private drainage would then need to be connected to the new pipe at the
objectors' cost. It is understood that the proposed works would be the most
cost effective option for the Council and the objectors in the circumstances.
Bernard Hough, Alliance Project Manager, CHA, advised the
Subcommittee that the plans provided to the objectors were the "final design"
and confirmed that no other reports remain outstanding. In other words, Council
officers and contractors have supplied all relevant information to the objectors
in respect of the proposed works and the existing pipeline that runs through the
objectors' property.
Despite being present to hear Messrs McQuillan and Hough,
the objectors' position remains that the information provided does not satisfy
their concerns. Further, the objectors were reluctant to answer key questions
regarding their concerns with the potential effects of the proposed works,
leaving the Subcommittee to determine the proposal on the material provided,
including the various documentation and correspondence submitted by the
objectors.
The Subcommittee is satisfied, however, following
information provided by the Council and its experts, that adequate detail of the
proposed works and the already existing pipe was provided to the objectors, and
that this occurred within reasonable timeframes.
As noted above, the Subcommittee may determine to abandon
the works proposed or proceed with the works proposed, with or without any
alterations that it thinks fit.
Clause 1(e)(ii) of Schedule 12 of the LGA confers a wide
discretion in terms of making alterations. On its face, there are no
qualifiers; however, the Subcommittee must act reasonably in exercising this
discretion and follow the relevant decision-making requirements and principles
enshrined in the LGA. These are summarised as follows.
Following a review of the material provided by the Council
and its experts, the Subcommittee considers that the Council has identified all
reasonably practicable options to achieve the outcome sought in respect of the
wider catchment upgrade project. The material provided indicates an adequate
assessment of the options, including consideration of the benefits and costs of
the options in terms of present and future social, economic, environmental, and
cultural wellbeing of the catchment and wider Auckland region. In summary, the
Subcommittee considers that the environmental, economic and community outcomes
of proceeding with the works, with the alterations referred to below, exceeds
all other options.
It appears that the Council and/or its experts have
adequately assessed the impact of the various options on the Council's capacity
to meet present and future needs in relation to the Council's statutory
responsibilities.
Having received the Council's information in respect of the
works proposed, and having heard the objection, the Subcommittee considers that
the proposed works would significantly benefit the community in terms of this
particular catchment and the wider region in respect of the interests of future
and present communities.
The proposed works, with the alterations determined at the
meeting on 1 September 2009, will provide for a very good environmental outcome
and is the best cost alternative in terms of the options on the table at the
meeting. Using existing infrastructure supports this objective.
The Subcommittee's decision to approve the works with
alterations is based on the fact that there is existing infrastructure which,
although implemented in contravention of the LGA process, may be utilised for
the same outcome. This does not absolve the Council of the earlier procedural
defect, regarding which the objectors may or may not have other legal remedies
available.
The Subcommittee considers that the effects of the
alterations would be less than the proposed works, given that the existing
pipeline is in place and the objectors could not point to any particular adverse
effects on them from the existence of that pipeline. In response to a question,
the objectors clearly stated that they did not want any additional pipelines
passing through their property.
Further, the Subcommittee is satisfied that alteration of
the works would not affect other parties who would otherwise have chosen to
participate in this process. It is satisfied that alteration of the proposed
route to the existing pipeline route will be relatively minor and will be
unlikely to adverse any other party. It is also satisfied that there has been
no material change to the environment in the proposed works since notification
of the original route to a degree that would affect its decision.
There being no further business, the chairperson declared
the meeting closed at 11.15 am.
