Agenda of Extraordinary Council Meeting - Tuesday, 24 September 2024

24 September 2024

5.1 Future of Severely Affected Land - Voluntary Buy-out and Relocation Policy - Approval for Public Consultation

File Number: A4885741

Author: Esther Powell, Manager - Climate & Action Resilience

Authoriser: Roger Ackers, Group Manager - Planning & Policy

Take Pūrongo / Purpose of the Report

To obtain approval to release the proposed Future of Severely Affected Land Voluntary Buy-out and Relocation Policy for public consultation.

WhakarĀpopoto matua / Executive Summary

· On 6 June 2024, Council allocated funds to assess land in the Far North against Future of Severely Affected Land (FOSAL) criteria.

· On 8 August 2024, Council received notice from the Minister of Emergency Management and Recovery (the Minister) that government funding would end on 30 June 2025, requiring the further acceleration of the FOSAL Programme.

· A shortlist of 25 potentially affected properties is under review, with landowner engagement ongoing to confirm North Island Weather Events (NIWE) impact and FOSAL participation.

· Categorisation reports are due by 7 November, with an Options Report to Council due on 14 November 2024.

· A policy for voluntary buyouts and relocations is needed for transparency, with public consultation running alongside the categorisation process.

· The policy, based on other councils' models and approved by the Cyclone Recovery Unit, provides for insured (100%) vs. uninsured (80%) buyouts for fairness.

· Public consultation is recommended due to potential financial impacts, with a two-week period (26 Sept–10 Oct) aligning with the 30 June 2025 funding deadline.

tŪtohunga / Recommendation

That Council:

a) Approves the FOSAL Voluntary Buyout and Relocation Policy September 2024;

b) Approves the Proposal for the FOSAL Voluntary Buyout and Relocation Policy September 2024 for public consultation;

c) Agrees the period for making written submissions on the Proposal will be two (2) weeks.

1) TĀhuhu kŌrero / Background

On 6 June 2024, Council determined that funds would be allocated in the Long-Term Plan (LTP) to undertake an assessment of land in the Far North district, to determine if there are residential properties that meet the FOSAL criteria.

On 8 August 2024a letter was received from the Minister of Emergency Management and Recovery indicating that 30 June 2025 would be the cut-off date for government funding. This has necessitated that the FOSAL Programme be further accelerated, and for pieces of work to be undertaken concurrently to meet the Minister’s deadline.

Following high-level risk and exposure modelling, a short list of 25 potentially affected properties has been developed. Staff have commenced engagement with these landowners to determine if a) they were significantly affected by NIWE and b) if they want to opt into the FOSAL Programme. Once confirmation of both these criteria are received by staff, Tonkin+Taylor has been engaged to undertake the FOSAL categorisation assessment for each property. Categorisation reports will be completed by 7 November with an Options Report to be presented to Council on 14 November 2024.

To progress the FOSAL Programme, a policy is required that sets out how Council will undertake voluntary buyouts and relocations. This will provide transparency for the process and provide surety to impacted landowners by formalising the buyout, relocation eligibility criteria and procedures. Due to the extremely tight timeframes, the FOSAL Voluntary Buyout and Relocation Policy (the Policy) has been drafted for public consultation to run concurrently with the risk identification and categorisation process.

2) matapaki me NgĀ KŌwhiringa / Discussion and Options

Design of the Policy

Much of the Policy is operational and relates to terms and conditions, and the process for making an offer. The Policy has been developed based on the Gisborne District Council, Masterton District Council and Auckland Council policies, to leverage from their learnings and to expedite the drafting process. The Cyclone Recovery Unit has reviewed the Policy and is satisfied that it addresses the necessary components of the process.

Insured vs. Uninsured Properties

There is a strategic issue to be considered by Council, namely the difference in buyout and relocation offers for insured (100%) and uninsured properties (80%). The difference would provide equality between owners who were insured verses those who were uninsured on 12 February 2023. Section 8 of the Policy provides the ability to consider special circumstances to deviate from the Policy.

Proposed Property Purchase Offer

The Property Purchase Offer allows the Council to buy residential properties, including improvements. Uninsured properties receive 80% of their market value as of 12 February 2023. Insured property owners can choose either to receive the market value of the property minus unspent insurance and EQC payments or retain insurance proceeds for improvements while receiving the market value of the land, minus unspent EQC payments for land repairs.

Proposed Residential Relocation Offer

The Residential Relocation Offer allows the Council to purchase dwellings and residential improvements at market value as of 12 February 2023, and includes the rights for demolition, removal, and site reinstatement, considered necessary by the Council to make the site safe. The owner retains the land, with a covenant preventing residential activity in Category 3 areas. Uninsured properties receive 80% of the market value, minus a deduction equivalent to what EQC would have covered. Insured owners can choose between receiving the market value minus unspent insurance proceeds or retaining the insurance proceeds and forgoing payment for the dwelling, while remaining eligible for a relocation grant.

Public Consultation

There is no specific legislative requirement to undertake formal public consultation on the adoption of a FOSAL Policy. However, staff have considered statutory decision-making requirements under Part 6 of the Local Government Act 2002 (LGA02) and the significance of the decision to adopt a policy in terms of Council’s Significance and Engagement Policy. The implementation of the Policy has the potential to impact ratepayers through unbudgeted financial expenditure and may attract a reasonably high level of public interest. It is therefore considered appropriate to undertake public consultation in accordance with the principles of consultation outlined under section 82 of the LGA02.

Due to the tight timeframes to develop and implement the Policy and complete the FOSAL Programme within deadlines imposed by the Minister, it is necessary to undertake a limited period of consultation of two (2) weeks (26 September to 10 October). This consultation period will still be sufficient to fulfil public engagement requirements and will ensure staff are able to report back and seek endorsement of the Policy at the 17 October Council meeting and work towards meeting the Minister’s deadline of 30 June 2025.

To ensure wide communication of the consultation, a link to the webpage for making submissions will be emailed to Council’s “subscribers” database and publicised on the Council’s social media pages and “Have your Say” website. Council staff recommend that people are encouraged to present their views primarily via the Council’s website. A small number of printed copies of the proposal document and submission form will be made available at Council offices for people to use if they are not able to print the documents themselves.

Option One (Recommended option)

Approve the draft Policy (see Attachment One) to be submitted for two weeks of public consultation from 26 September to 10 October.

Advantages:

• Clarity and consistency regarding the process

• Having clear guidelines to reduce ambiguity.

• Transparency of decisions.

• Reduction in delays and confusions by improving operational efficiency.

• Provides some legal protection in the event of disputes or legal challenge.

• Equity – ensures that all people are treated fairly.

Disadvantages:

None identified.

Option Two

Do nothing.

Advantages:

• More flexibility to tailor the approach to specific situations.

• Ability to experiment with alternative solutions on a case-by-case basis.

Disadvantages:

• Inconsistency in decision-making.

• Potential for confusion and miscommunication among staff and the public.

• Reduced transparency impacting reputation and trust in Council.

• Increased risk of legal challenge.

• Delays and inefficiencies.

• Unclear expectations for impacted property owners.

• Ad hoc decisions increase the risk of bias leading to unfair outcomes.

TAKE TŪTOHUNGA / REASON FOR THE RECOMMENDATION

Option One is recommended because the Policy is largely operational, outlining terms, conditions, and the process for making property purchase offers. It leverages policies from Gisborne, Wairarapa, and Auckland Councils, incorporating their learnings and expediting drafting. The Cyclone Recovery Unit has reviewed and approved the Policy, which addresses key procedural components. A strategic issue is the difference in buyout offers for insured (100%) and uninsured properties (80%), aiming for fairness. Public consultation, while not legally required, is recommended for transparency due to the potential impact on ratepayers. Given tight deadlines, a two-week consultation (26 September to 10 October) will ensure public engagement while meeting the Minister’s 30 June 2025 deadline.

3) PĀnga PŪtea me ngĀ wĀhanga tahua / Financial Implications and Budgetary Provision

The ongoing work to undertake the FOSAL Programme was approved by Council through LTP decisions on 6 June 2024.

Āpitihanga / Attachments

1. FOSAL Voluntary Buyout & Relocation Policy - A4891285 ⇩

2. FOSAL Voluntary Buyout & Relocation Policy Proposal - A4891286 ⇩

3. Letter to the Far North District Council - A4892727 ⇩

Hōtaka Take Ōkawa / Compliance Schedule:

Full consideration has been given to the provisions of the Local Government Act 2002 S77 in relation to decision making, in particular:

1. A Local authority must, in the course of the decision-making process,

a) Seek to identify all reasonably practicable options for the achievement of the objective of a decision; and

b) Assess the options in terms of their advantages and disadvantages; and

c) If any of the options identified under paragraph (a) involves a significant decision in relation to land or a body of water, take into account the relationship of Māori and their culture and traditions with their ancestral land, water sites, waahi tapu, valued flora and fauna and other taonga.

2. This section is subject to Section 79 - Compliance with procedures in relation to decisions.

He Take Ōkawa / Compliance Requirement	Aromatawai Kaimahi / Staff Assessment
State the level of significance (high or low) of the issue or proposal as determined by the Council’s Significance and Engagement Policy	The implementation of the Policy has the potential to impact ratepayers through unbudgeted financial expenditure and may attract a reasonably high level of public interest. It is therefore considered appropriate to undertake public consultation in accordance with the principles of consultation outlined under section 82 of the LGA02.
State the relevant Council policies (external or internal), legislation, and/or community outcomes (as stated in the LTP) that relate to this decision.	The proposal aligns with Council policies and community outcomes. Specifically, the Climate Action Policy and emergency management recovery outcomes.
State whether this issue or proposal has a District wide relevance and, if not, the ways in which the appropriate Community Board’s views have been sought.	The proposal has a district wide relevance and has therefore been recommended to be publicly consulted on district wide. The Community Boards have not been consulted due to tight timeframes and deadlines imposed by the Minister for Emergency Management and Recovery.
State the possible implications for Māori and how Māori have been provided with an opportunity to contribute to decision making if this decision is significant and relates to land and/or any body of water. State the possible implications and how this report aligns with Te Tiriti o Waitangi / The Treaty of Waitangi.	The categorisation of FOSAL land will enable affected iwi and hapu to enter into the Whenua Māori pathway and negotiate directly with the Crown. Te Kahu o Taonui have been brought into the FOSAL conversation with the Cyclone Recovery Unit.
Identify persons likely to be affected by or have an interest in the matter, and how you have given consideration to their views or preferences (for example – youth, the aged and those with disabilities).	The general public will be consulted to gather a range of views and preferences.
State the financial implications and where budgetary provisions have been made to support this decision.	There is currently no budgeted funds to implement the FOSAL Programme past the categorisation of land. It is unclear what the financial implications are until the categorisation process is completed. This is expected to be reported to Council on 14 November 2024 for a decision on the need for CAPEX expenditure.
Chief Financial Officer review.	The Chief Financial Officer has reviewed this report.

Extraordinary Council Meeting Agenda

24 September 2024

5.2 Review of Land Drainage Bylaw

File Number: A4835051

Author: Donald Sheppard, Policy Advisor

Authoriser: Roger Ackers, Group Manager - Planning & Policy

Take Pūrongo / Purpose of the Report

To seek approval to continue the Land Drainage Bylaw 2019 with amendment.

WhakarĀpopoto matua / Executive Summary

· There are four land drainage districts in the Far North, all situated in Te Hiku Ward: Kaitaia, Motutangi, Waiharara and Kaikino.

· The Local Government Act 2002 gives Council the power to make bylaws to regulate the use and management of these drainage assets.

· The Land Drainage Bylaw 2019 (the Bylaw) was made on 03 October 2019, replacing the Land Drainage Bylaw 2009.

· Under Section 158 of the Local Government Act 2002, the Bylaw is due for review by 03 October 2024. In the review, Council is required to consider whether the Bylaw is still the most appropriate way of addressing the perceived problem with respect to land drainage, whether the Bylaw has the most appropriate form, and whether it has any Bill of Rights implications.

tŪtohunga / Recommendation

That Council:

1. Approve, under section 155(1) of the Local Government Act 2002, that a bylaw is still the most appropriate way of addressing problems related to land drainage in the four land drainage districts in Te Hiku Ward;

2. Approve, under 155(2) of the Local Government Act 2002, that the current form of the Land Drainage Bylaw is not the most appropriate;

3. Approve, under section 155(2) of the Local Government Act 2002, the Land Drainage Bylaw does not give rise to any implications under the New Zealand Bill of Rights Act 1990.

4. Approve, the Land Drainage Bylaw 2019 continues with amendment.

1) TĀhuhu kŌrero / Background

The Land Drainage Bylaw 2019 (the Bylaw) came into force on 07 October 2019, replacing the Land Drainage Bylaw 2009.

Under section 158 of the Local Government Act 2002, the Bylaw is due for review by 03 October 2024. The Council is required under section 160 of the Local Government Act 2002 to consider whether the Bylaw;

· is still the most appropriate way of addressing the perceived problem with respect to land drainage;

· is still the most appropriate form of bylaw; and

· gives rise to any implications under the New Zealand Bill of Rights Act 1990.

Council staff have now reviewed the Bylaw. See the attached Research Review Report (Attachment One).

Council’s role relating to the drainage districts

Managing and maintaining land drainage infrastructure aligns with the following community outcomes, stated in the Long-term Plan:

· Communities that are healthy, safe connected and sustainable by reducing the risk of damage from flooding to individual properties.

· Resilient Communities that are prepared for the unexpected by reducing the risk of flooding.

· A wisely managed environment that recognises the role of tangata whenua as kaitiaki by providing a safe living environment for affected communities.

The Bylaw:

· ensures Council access to drainage channels

· addresses connections of private drains to drainage channels

· includes provisions to ensure drainage channels are not obstructed or altered

· regulates stopbanks, crossings, and watering places

· covers damage, maintenance and repair to drainage assets, inspections, obstruction of officers, and penalties for breaching the Bylaw.

2) matapaki me NgĀ KŌwhiringa / Discussion and Options

Problems to be addressed

The problem stated when the Bylaw was made is that improperly managed and maintained land drainage assets can impact negatively on contiguous properties. This included:

a) The unsafe and inefficient creation, operation, maintenance and renewal of the land drainage network;

b) Improper hazard management to prevent or minimise flooding and erosion, minimise adverse effects on the local environment particularly freshwater ecological systems quality, and not assisting in maintaining water quality;

c) Lack of protection of Council land drainage assets, for example, by not setting out acceptable types of connection to land drainage networks;

d) Risks to the health and safety of council employees.

Review findings

Council staff have identified that improperly managed and maintained land drainage assets can still impact negatively on contiguous properties.

The review identified that a bylaw is still the most appropriate way to address problems relating to the land drainage network.

The review also identified that the form of the Bylaw is not appropriate, with amendments required to provide greater certainty to the Bylaw:

· the Bylaw should not refer to the Interpretation Act 1999, which was replaced by the Legislation Act 2019;

· maps of the drainage districts should be included in a Schedule to the Bylaw with accompanying provisions in the Bylaw applying to this Schedule (e.g. the Schedule may be amended by resolution of Council);

· while the provisions in the Bylaw appear fit for purpose, engagement and consultation with key stakeholders may identify further changes that should be made to the Bylaw.

The review found that the Bylaw does not give rise to implications under the New Zealand Bill of Rights Act 1990. However, a full assessment will need to be conducted following any possible amendments.

Option One: Continue the Bylaw without amendment

The current Bylaw stays in force with no changes.

Advantages:

· Regulation will continue of land drainage assets.

Disadvantages

· Bylaw will not be as certain (clear) as it could be.

Option Two: Continue the Bylaw with amendment (recommended option)

The current Bylaw is amended.

Advantages:

· Regulation will continue of land drainage assets.

· Bylaw will be more certain (clear).

Disadvantages:

· None identified

Option Three: Do nothing – allow the Bylaw to revoke in two years

The current Bylaw will still apply until 03 October 2026 when it will automatically revoke.

Advantages:

· None identified.

Disadvantages:

· Regulation of the land drainage assets will only continue for two more years.

· Until the Bylaw revokes, it will not be as certain (clear) as it could be.

· After the Bylaw revokes, no policy instrument will apply to regulate land drainage assets and ad hoc decisions will occur regarding the management of these assets. For regulation to continue, a new bylaw will need to be made.

Option Four: Revoke the Bylaw

Revoking the Bylaw is not a reasonably practicable option.

TAKE TŪTOHUNGA / REASON FOR THE RECOMMENDATION

A bylaw is still the most appropriate way of addressing the problems of Land Drainage. Amendments to the Bylaw will make it more certain (clear).

Next Steps

A draft amended Bylaw will be prepared following engagement and input from key stakeholders, including the Land Drainage Boards, Te Hiku Community Board, and subject matter experts from the Infrastructure Group at Council.

3) PĀnga PŪtea me ngĀ wĀhanga tahua / Financial Implications and Budgetary Provision

The operational costs for amending the Bylaw are expected to be minimal (less than $1,000 plus staff time and resources) and will be met from existing operational budgets.

Āpitihanga / Attachments

1. Review Research Report - Land Drainage Bylaw 2019 - A4893315 ⇩

Hōtaka Take Ōkawa / Compliance Schedule:

Full consideration has been given to the provisions of the Local Government Act 2002 S77 in relation to decision making, in particular:

1. A Local authority must, in the course of the decision-making process,

a) Seek to identify all reasonably practicable options for the achievement of the objective of a decision; and

b) Assess the options in terms of their advantages and disadvantages; and

2. This section is subject to Section 79 - Compliance with procedures in relation to decisions.

He Take Ōkawa / Compliance Requirement	Aromatawai Kaimahi / Staff Assessment
State the level of significance (high or low) of the issue or proposal as determined by the Council’s Significance and Engagement Policy	In line with the Significance and Engagement Policy, the recommendation to continue the Land Drainage Bylaw with amendment will have little effect on the financial thresholds, ratepayers, specific demographics, or levels of service. The recommendation is consistent with existing plans and policies. Therefore, the level of significance is low.
State the relevant Council policies (external or internal), legislation, and/or community outcomes (as stated in the LTP) that relate to this decision.	· Land Drainage Bylaw 2019 · Local Government Act 2002 · New Zealand Bill of Rights Act 1990 · Far North District Council – Te Pae Ata – Three-Year Long-Term Plan 2024-2027 (Section 7 – Wai Ua me Hapuwai Stormwater and Drainage) · Land Drainage Act 1908 · Interpretation Act 1999 · Legislation Act 2019 · Resource Management Act 1991
State whether this issue or proposal has a District wide relevance and, if not, the ways in which the appropriate Community Board’s views have been sought.	This issue has relevance within Te Hiku Ward. Engagement will be required with Te Hiku Community Board to further understand the issues and problems relating to Land Drainage.
State the possible implications for Māori and how Māori have been provided with an opportunity to contribute to decision making if this decision is significant and relates to land and/or any body of water. State the possible implications and how this report aligns with Te Tiriti o Waitangi / The Treaty of Waitangi.	Appropriate engagement with iwi and hapū will need to occur to ensure any appropriate amendments are made to the Bylaw. Māori are kaitiaki of the land and are therefore an important voice in issues of Land Drainage.
Identify persons likely to be affected by or have an interest in the matter, and how you have given consideration to their views or preferences (for example – youth, the aged and those with disabilities).	All interested parties will be given an opportunity to share their views and preferences including Te Hiku Community Board, the Land Drainage Board, Land Drainage Committees, affected land owners, Infrastructure Group subject matter experts, and iwi/ hapū.
State the financial implications and where budgetary provisions have been made to support this decision.	The operational costs for amending the Bylaw is expected to be minimal (less than $1000 plus staff time and resources) and will be met by existing operational budgets.
Chief Financial Officer review.	The Chief Financial Officer has reviewed this report.