Supplementary Reports Agenda of Te Hiku Community Board Meeting

8 July 2025

7.4 Proposed Amended Land Drainage Bylaw

File Number: A5258031

Author: Dan Bowmar, Policy Advisor

Authoriser: Roger Ackers, Group Manager - Planning & Policy

Take Pūrongo / Purpose of the Report

To seek approval for Te Hiku Community Board to recommend that Council approve the amended Land Drainage Bylaw draft for consultation.

WhakarĀpopoto matua / Executive Summary

· There are four land drainage districts in the Far North, all situated in Te Hiku Ward: Kaitāia, 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.

· On 03 October 2019 (Resolution 2019/37 refers), Council made the Land Drainage Bylaw.

· On 24 September 2024 (Resolution 2024/134 refers), the Land Drainage Bylaw 2019 was reviewed by Council under Section 158 of the Local Government Act 2002 and Council approved the Land Drainage Bylaw 2019 to continue with amendment.

· Section 160 (3)(a) of the Local Government Act 2002 requires that Council consult with the public when amending a bylaw.

· A draft of the amended Land Drainage Bylaw 2019 is in Attachment 1.

· The recommended consultation period is between 01 August and 29 August 2025. Oral submissions will follow.

tŪtohunga / Recommendation

Te Hiku Community Board recommend that Council:

a) adopt the proposal in attachment 4 to be released for public consultation to meet the requirements of section 82 of the Local Government Act 2002.

b) approve, the period for making written submissions on the proposal will be a minimum of 4 weeks.

c) delegate authority to the Mayor to decide on the date of oral presentation/s of submissions.

d) authorise the Chief Executive to make any necessary minor drafting or presentation amendments to the proposal to correct errors or omissions, or to reflect the decisions made by the Council prior to final publication and public release.

1) TĀhuhu kŌrero / Background

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

Sections 145 (a and b) and section 146 (b)(i) of the Local Government Act 2002 gives Council the power to make bylaws to regulate the use and management of these drainage assets.

On 03 October 2019 (Resolution 2019/37 refers), Council made the Land Drainage Bylaw 2019.

On 24 September 2024 (Resolution 2024/134 refers), the Land Drainage Bylaw 2019 was reviewed by Council under Section 158 of the Local Government Act 2002 and Council approved the Land Drainage Bylaw 2019 should continue with amendment.

Section 82A of the Local Government Act 2002 sets out the requirements for information to be made available for consultation. Those requirements are to provide:

· the proposal and the reasons for the proposal

· an analysis of the reasonably practicable options, including the proposal

· a draft of the amended Bylaw

Council staff have prepared a proposal document that meets the requirements of section 82A. The proposal document is in Attachment 4.

2) matapaki me NgĀ KŌwhiringa / Discussion and Options

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.

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

The Review identified that:

· improperly managed and maintained land drainage assets can impact negatively on contiguous properties

· a bylaw is still the most appropriate way to address problems relating to the land drainage network.

· the form of the Bylaw is not appropriate, with amendments required to provide greater certainty to the Bylaw:

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

o 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

· at the time of the review, the Bylaw did 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

Amendments to the Bylaw

The draft amended Bylaw is in Attachment 1. Tracked changes to the Bylaw can be found in attachment 3.

Amendments to the Bylaw in attachment 3 include:

a) Correction of a typo in clause 2:

This Bylaw comes into force on the 7^th day of October 2019.

b) Addition of a definition of “Land Drainage Area” in subclause 5.1 to ensure clarity:

Land Drainage Area means a land drainage area identified in Schedule 1: Land Drainage Maps to this Bylaw, or any other land drainage area that the Council by resolution identifies and determines to regulate for land drainage purposes.

c) Replacing the reference to the Interpretation Act 1999 with the Legislation Act 2019 in subclause 5.3. The ~~Interpretation Act 1999~~ Legislation Act 2019 applies to this Bylaw.

d) Rewording of subclause 11.1 to ensure clarity:

No person shall discharge or cause, permit or suffer to be discharged onto a drainage channel or private drain connected therewith, any liquid, gaseous or solid matter which shall be likely to be a nuisance or injurious to health or to the proper care of the drainage channel. may –

(a) Widen or deepen; or

(b) Stop or obstruct; or

(d) In any way interfere with,

Any drainage channel or associated works with the prior written approval of Council.

e) Addition of wording to subclause 13.2 to ensure clarity:

No person shall remove, change or construct any culvert, bridge or crossing in upon or over any drainage channel without the prior approval of Council.

f) Rewording of subclause 16.1 to ensure clarity:

~~Council, members, officers, workmen or agents~~ An enforcement officer or authorised person shall have the power, right, and authority to inspect any installation set up for the withdrawal or diversion of water from any drainage channel, whether authorised or not and the Council may direct any alteration or improvement to or replacement of such installation or request its removal or demolition at any time.

g) Rewording of subclause 17.1 to ensure clarity:

No person, whether on private land or not, shall obstruct any ~~member, appointee, employee or agent of Council~~ enforcement officer or authorised person, with or without drain cleaning machinery or plant, in the performance of anything which such member, appointee, employee or agent is or may be required to do in the discharge of their duties.

h) An addition to clause 20. Land Drainage Areas:

20. Land Drainage Areas

20.1 The provisions of this Bylaw do not remove the need for any resource or other consents required under the Resource Management Act 1991, Building Act 2004. Where consents are required under this chapter of this Bylaw and other acts or regulations, all shall be lodged with the Council at the same time.

i) Maps have been created from new maps created by our GIS team to increase accuracy from previous maps (see attachment 2). Maps that show the properties charged drainage area rate are also within this schedule. These will be added to a separate Schedule as:

Schedule 1: Land Drainage Maps.

After getting feedback from Te Hiku Community Board and the Land Drainage Committees, other amendments were considered but not made. These included:

a) Adding floodgates to areas covered under section 146 of the Local Government Act 2002 was suggested. The Council is unable to change the wording of legislation. However, as floodgates are a land drainage asset, they will be covered by this bylaw.

b) Regarding whether the bylaw should still be made under the Local Government Act 1974. Part 29 of the Local Government Act 1974 remains in force, including section 517 that allows Council to make a range of bylaws relating to the protection of drainage channels. Whereas section 146(1)(b)(iv) of the Local Government Act 2002 provides broad authority for a bylaw managing, regulating, and protecting land drainage, the provisions of the Local Government Act 1974 allow for specific prohibitions and regulations. This can provide useful and clear authority for specific provisions in the Bylaw. For example, clause ten that prohibits alterations to a drainage channel without Council approval is directly and specifically authorised by section 517(h) of the Local Government Act 1974. Staff consider it both appropriate and useful to continue to cite Part 29 of the Local Government Act1974 as an enabling authority for the Bylaw.

c) Regarding changing the measurements of drainage channels and access lanes. Infrastructure and compliance have given feedback that the current measurements given in the Bylaw are appropriate and as such do not require amendment.

d) Regarding Section 18 and the $20,000 penalty not being big enough and whether wording should be changed to $20k per breach instead of for breach.

The penalties applicable to breach of a bylaw are limited to those permitted by statute. Section 242(4) of the Local Government Act 2002 states that a person convicted or an offence against a bylaw is liable to a fine not exceeding $20,000. Unlike similar offence provisions in other statutes (e.g. the Resource Management Act), there is no further penalty for continuing offences, which would increase the penalty risk that deters those who commit offenders. This means that regardless of the wording of the clause, a further penalty can only be imposed on a subsequent conviction for a repeat offence.

Of note is that section 176 of the Local Government Act, which applies to a person convicted of an offence against a bylaw, allows the Council to recover the costs of any damage caused in the course of committing the offence. The Court assesses those costs, which are recoverable as if they were a fine.

New Zealand Bill of Rights Act 1990 preliminary assessment

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 of the impact of the bylaw on these rights cannot be made until the content of the bylaw is finalised.

Proposal for consultation

The amended Land Drainage Bylaw will be made under section 145 and 146 of the Local Government Act 2002. Under section 156 of the Local Government Act 2002 Council must consult using either the special consultative procedure or the requirements in section 82 of the Local Government Act.

Under the Council’s Significance and Engagement Policy, the amended bylaw does not meet the threshold for requiring the special consultative procedure as the amended bylaw:

· does not involve the transfer of a strategic asset

· will not incur unbudgeted financial impacts

· will not have a significant impact on Māori, the public, or level of service as the new bylaw will have the same effect as the current bylaw.

Therefore, consultation needs to comply with section 82 of the Local Government Act 2002.

Section 82A of the Local Government Act 2002 sets out the requirements for information to be made available for consultation. Those requirements are to provide:

· the proposal and the reasons for the proposal

· an analysis of the reasonably practicable options, including the proposal

· a draft of the proposed bylaw

Council staff have prepared a proposal document that meets the requirements of section 82A. The proposal document is in Attachment 4.

Consultation process

Section 82 of the Local Government Act 2002 does not stipulate a minimum length of time for consultation but requires the Council, to give people “a reasonable opportunity” to present their views on the proposed bylaw. A consultation period of at least four weeks is considered best practice. Therefore, Council staff recommend consultation to open on 01 August 2025 and close on 29 August 2025 which is a period of four weeks.

Council staff recommend people be encouraged to present their views by making comments or submissions via the Council’s website. A submission form will be provided for download on the website for people to print and use to make written submissions either by post or delivery to Council offices. 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. A link to the webpage for making submissions will be emailed to the Council’s “subscribers” database and publicised on the Council’s social media pages.

The proposed amended bylaw is likely to be of interest to the public and Council staff expect that there will be requests to present submissions orally to elected members. The date for the oral presentations of submissions, if required, has been tentatively set for 03 September 2025.

TAKE TŪTOHUNGA / REASON FOR THE RECOMMENDATION

The Local Government Act 2002 requires that Council consult when amending a bylaw. A proposal for an amended Land Drainage Bylaw, including a draft of the Bylaw, is in Attachment 4.

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

The operational costs of consultation are expected to be minimal (less than $1,000 plus staff time and resources) and will be met from within existing budgets.

Āpitihanga / Attachments

1. Proposed Amended Land Drainage Bylaw 2019 - 2025 - A5253561 ⇩

2. Proposed Schedule 1 Land Drainage Maps - Land Drainage Bylaw 2019 - July 2025 - A5253557 ⇩

3. Proposed Tracked changes - Land Drainage Bylaw 2019 - July 2025 - A5253559 ⇩

4. Proposal - Land Drainage Bylaw 2019 - July 2025 - A5253555 ⇩

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	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.	Seeking the views and input of hapu/iwi in the development of policy is integral, and Māori will be given an opportunity to contribute during the consultation stage. Council will give notice of the proposed Bylaw to organisations representing Māori in the Far North district. 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 landowners, 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 not reviewed this report.