Civic Administration Building
Phone: (06) 871 5000
Fax: (06) 871 5100
WWW.hastingsdc.govt.nz
Open
A G E N D A
Hearings Committee MEETING
(Request for the release of two dogs held in retention pending prosecution
- Application by Asher Mitchell
- (Marley & Beau))
Meeting Date: |
Tuesday, 1 October 2019 |
Time: |
9.30am |
Venue: |
Council Chamber Ground Floor Civic Administration Building Lyndon Road East Hastings |
Committee Members |
Panel Members Rostered on for this hearing: Chair: Councillor Lyons Councillors Lawson and Redstone
Other Hearings Committee Members (not rostered on for this hearing): Councillors Barber, Heaps, Kerr (Deputy Chair) and Schollum and Mr P Kay |
Officer Responsible |
Regulatory Services Manager - Mr John Payne |
Democracy & Governance Advisor |
Christine Hilton (Ext 5633) |
Fields of Activity
The Hearings Committee is established to assist the Council by hearing and determining matters where a formal hearing is required under the provisions of the:
· Resource Management Act 1991
· Building Act 2004
· Health Act 1956
· Dog Control Act 1996
· Litter Act 1979
· Hastings District Council Bylaws
· Local Government Act 1974
· Local Government Act 2002
· Gambling Act 2003
Membership (7 including 6 Councillors)
Chairman appointed by the Council from the membership of 6 Councillors
Deputy Chairman appointed by the Council from the membership of 6 Councillors
4 other Councillors
1 externally appointed member with relevant qualifications and experience
Quorum* –
a) All members including the Chair (or Deputy Chair, in the Chair’s absence) sitting on a hearing must be accredited (as of 12 September 2014).
b) A maximum of three members including the Chairperson (or Deputy Chair, in the Chair’s absence) to meet for any one hearing, except for Council Initiated Plan Change hearings where all members may attend and take part in the decision making process.
c) For Hearings other than Council Initiated Plan Change hearings the quorum shall be two members.
d) For Council Initiated Plan Change Hearings the quorum shall be three members.
e) Members to sit on any hearing other than a Council Initiated Plan Change Hearing shall be selected by agreement between the Chair (or Deputy Chair, in the Chair’s absence) and the Group Manager: Planning and Regulatory Services.
f) For the purpose of hearing any objection in respect of the matters detailed under the Dog Control Act 1996 the Hearings Committee will consist of any three members selected by the Chair.
*In the case of hearings under the provisions of the Resource Management Act 1991 the quorum is to meet the obligations contained in section 39B of the Act.
Delegated Powers
HEARINGS COMMITTEE |
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1. RESOURCE MANAGEMENT ACT 1991 |
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Pursuant to Section 34(1) of the Resource Management Act 1991 the Hearings Committee of Council is delegated power to:
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1) Hear, consider and decide upon any Resource Consent application or any other application made to Council under the Act (including private plan change requests). For the avoidance of doubt, this includes the use or exercise of any powers vested in the Council under the Act to process, hear and decide upon any such application. |
Decide on Applications and Private Plan Change requests. |
2) Hear, consider and recommend to the Strategy, Planning and Partnerships Committee or Council as it considers appropriate, on submissions made on any proposed plan or any Council initiated change to the District Plan or variations to the Proposed Plan. |
Submission on Council Plan Changes. |
3) Appoint a Commissioner or Commissioners to hear, consider and decide on any Resource Consent application or any other application made to Council under the Act. This delegation is subject to the requirement that any Hearings Commissioner(s) appointed shall hold a valid certificate of accreditation under section 39A of the Act. |
Appoint Commissioner for Resource Consents. |
4) Appoint a Commissioner or Commissioners to hear, consider and recommend to the Strategy, Planning and Partnerships Committee or Council as it considers appropriate, on any submissions made on any proposed plan or any Council or privately initiated change to the District Plan. This delegation is subject to the requirement that any Hearings Commissioner(s) appointed shall hold a valid certificate of accreditation under section 39A of the Act. |
Appoint Commissioner for Proposed District Plan and Council or Private Plan Changes. |
5) Extend any time limits or waive compliance with any requirement specified in the Act or Regulations in respect of any matter before it under the Act and pursuant to the above delegations pursuant to Section 37 of the Act. |
Extend Time Limits and Waive Compliance. |
6) Hear and determine any objection made pursuant to Section 357, 357A, 357B, 357C and 357D of the Act |
Review of Decisions made under Delegation. |
7) Make an order, pursuant to Section 42 of the Act, relating to the protection of sensitive information in respect of any matter before it. |
Protection of Sensitive Information. |
8) Waive, pursuant to Section 42A(4) of the Act, compliance with Section 42A(3) of the Act relating to the receiving of officers reports in respect of any matter before it. |
Waive Time for Receipt of Officers’ Reports. |
9) Determine, pursuant to Section 91 of the Act, not to proceed with a hearing of an application for Resource Consent where it considers additional consents under the Act are required in respect of any application before it. |
Defer Application Where Other Consents Required. |
10) Require, pursuant to Section 92 of the Act, further information relating to any application before it and postpone notification, hearing or determination of the application. |
Require Further Information. |
11) The above delegations shall apply with all necessary modifications to: i) Any notice of review of Consent conditions issued by Council pursuant to Section 128 of the Act or by any committee or officer or the Council having delegated authority to do so. |
Review of Consent Conditions. |
ii) Any submissions on any requirement for a designation or alteration to a designation made pursuant to Sections 168, 168A or 181 of the Act. |
Hear Submissions on Designations. |
iii) Any submissions on any requirement for a Heritage Order made pursuant to Section 189 and 189A of the Act. |
Hear Submissions on Heritage Orders. |
12) Consider and make recommendations on any requirement for a designation or alteration to a designation pursuant to Section 171 of the Act. |
Recommendations and Designations. |
13) Consider and decide on any amendments to Council’s District Plan to alter any information, where such an alteration is of minor effect, or may correct any minor errors pursuant to Clause 16(2) or 20A of Part 1 of the First Schedule to the Act. |
Amend District Plan. |
2. HEALTH ACT 1956 |
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Pursuant to Clause 32 of Part 1 of the Seventh Schedule to the Local Government Act 2002 and Section 23 of the Health Act 1956 the Hearings Committee is delegated authority to: |
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i) Hear explanations against a notice to revoke registration issued pursuant to Clause 9 of the Health (Registration of Premises) Regulations 1966. |
Explanations Why Registration Should Not be Revoked. |
ii) Hear and determine any appeal against a direction or decision of any officer acting under delegated authority and any application or objection made pursuant to Clause 22 of the Housing Improvement Regulations 1974.
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Determine Appeals, Applications or Objections to Requirements Under Housing Improvement Regulations. |
3. DOG CONTROL ACT 1996 |
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Pursuant to Clause 32 of Part 1 of the Seventh Schedule to the Local Government Act 2002, the Hearings Committee is delegated authority to hear and determine any objections lodged against any decision of an officer acting under delegated authority or any notice issued by a Dog Control Officer pursuant to the following Sections. Section 22 Objection to the classification as a probationary owner. Section 26 Objection to disqualification from being an owner of a dog Section 31 Objection to the classification of a dog as a dangerous dog Section 33B Objection to the classification of a dog as a menacing dog under section 33A. Section 33D Objection to the classification of a dog as a menacing dog under section 33C as it is believed to belong to 1 or more classified breeds. Section 55 Objection to the issue of an abatement notice for a barking dog. Section 70 An application for the return of a barking dog seized under section 56 for causing distress. Section 71 An application for the release of a dog that is being held in custody under section 71(1) and (2) for threatening public safety. Section 71(1)(a) To be satisfied that a dog seized under section 15(1)(c) because the dog was without access to proper and sufficient food, water or shelter, will be given access to proper and sufficient food, water, or shelter if returned to the land or premises from which it was removed. Section 71A(2)(a)(i) To be satisfied that the owner of a dog seized under section 33EC (because the owner failed to comply with his obligations in respect of a dog classified as menacing), or of a dog classified as a menacing dog seized under section 33EB (because the owner failed to have the dog neutered), has demonstrated a willingness to comply with the relevant requirements”.
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Decide on objections under the Dog Control Act 1996 |
4. LITTER ACT 1979 |
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Pursuant to Clause 32 of Part 1 of the Seventh Schedule to the Local Government Act 2002, the Hearings Committee is delegated authority to hear and decide on any objection lodged pursuant to Section 10 of the Litter Act 1979 against a notice issued under that section.
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Decide on Objections to Notices Issued by a Litter Control Officer. |
5. Building Act 2004 |
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Pursuant to Section 67A of the Building Act 2004 the Hearings Committee is delegated authority to grant a waiver or modification to section 162C(1) or (2) (which requires residential pools to have means of restricting access by unsupervised children) the requirements of the Act (with or without conditions) in the case of any particular pool.
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Grant Exemptions to Pool Fencing Requirements. |
6. HASTINGS DISTRICT COUNCIL BYLAWS |
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Pursuant to Clause 32(1) of Part 1 of the Seventh Schedule to the Local Government Act 2002, the Hearings Committee is delegated authority to:
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i) Hear and determine any application for a review of any decision of a duly authorised officer pursuant to any part or provision of the Hastings District Council Bylaws. |
Review of Delegated Decisions. |
ii) Consider and determine any application under Clause 1.5 of Chapter 1 of the Hastings District Council Consolidated Bylaw for a dispensation from full compliance with any provision of the Bylaws.
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Dispensations from Bylaws Requirements. |
7. LOCAL GOVERNMENT ACT 1974
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Pursuant to Clause 32(1) of Part 1 of the Seventh Schedule to the Local Government Act 2002 the Hearings Committee is authority to hear and recommend to Council on any objections to any proposal to stop any road pursuant to Section 342 and the Tenth Schedule to the Local Government Act 1974.
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Hearing Objections to Road Stopping. |
8. GAMBLING ACT 2003 |
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Pursuant to Clause 32(1) of Part 1 of the Seventh Schedule to the Local Government Act 2002, the Hearings Committee is delegated authority to: |
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i) Hear, consider and determine in accordance with section 100 of the Gambling Act 2003, applications for territorial authority consent required under section 98 of that Act, as required by the Hastings District Council Class 4 Gambling Venue Policy. |
Hear and Decide on Applications for Territorial Authority Consent. |
HASTINGS DISTRICT COUNCIL
A Hearings Committee MEETINg will be Held in the Council Chamber, Ground Floor, Civic Administration Building, Lyndon Road East, Hastings on
Tuesday, 1 October 2019 AT 9.30am
1. Apologies
At the close of the agenda no requests for leave of absence had been received.
2. Request for the release of two dogs held in retention pending prosecution - Application by Asher Mitchell - (Marley & Beau)
Documents circulated for Hearing - Compiled as One document
Document 1 The covering administrative report Pg 1
Attachment a Notice of Retention for Marley Pg 5
Attachment b Notice of Retention for Beau Pg 7
Attachment c Request from Asher Mitchell for release of dogs (Marley and Beau) Pg 9
File Ref: 19/983 |
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MEETING DATE: Tuesday 1 October 2019
FROM: Regulatory Solutions Manager
John Payne
SUBJECT: Request for the release of two dogs held in retention pending prosecution - Application by Asher Mitchell - (Marley & Beau)
1.0 EXECUTIVE SUMMARY - TE KAUPAPA ME TE WHAKARĀPOPOTOTANGA
1.1 The purpose of this report is to obtain a decision from the Committee on a request for the return of two impounded dogs held in retention pending prosecution.
1.2 This decision contributes to the purpose of local government by primarily promoting performance of regulatory functions and more specifically through the Council’s strategic objective of community safety.
1.3 This report recommends the Committee evaluates the evidence to determine whether the release of the dogs will threaten the safety of persons, stock, poultry, domestic pets or protected wildlife and either upholds the decision to retain the dogs in custody or orders the release of the dogs.
3.0 BACKGROUND – TE HOROPAKI
3.1 On 11 September 2019 a Notice of Retention was issued to the dog owner, Asher Mitchell in relation to two American Bulldogs (Marley and Beau) (Attachments 1 and 2).
3.2 On 18 September 2019, Council received a written request from Asher Mitchell, for the release of the dogs pursuant to section 71(4) of the Dog Control Act 1996 (Attachment 3).
3.3 Asher Mitchell is the owner of two dogs, Marley a white female American Bulldog and Beau a white male American Bulldog. Neither dog is currently registered.
3.4 On 27 August 2019 Council’s after-hours animal control service received a call regarding two large white coloured dogs roaming on Whitby Crescent, Flaxmere. The after-hours animal control officer captured the dogs and returned them to Mr Mitchell.
3.5 On 31 August 2019 both dogs were captured on Omahu Road worrying sheep. As a result of the attack three sheep were destroyed.
3.6 The owner of the dogs is facing prosecution for the incident.
3.7 When interviewed on 3 September 2019 Mr Mitchell stated that his dogs were guard dogs/companions and that his brother may have come home and didn’t close the gate properly.
3.8 Mr Mitchell also stated that Marley was able to ‘nudge the gate open’ and that he had previously been called by the school to come and collect his dogs.
4.0 DISCUSSION - TE MATAPAKITANGA
4.1 After having the dogs returned to him on 27 August 2019 he has taken no action to prevent the dogs escaping again. It would appear that Mr Mitchell has not been taking this matter seriously.
4.2 It would seem unacceptable that Mr Mitchell’s dogs, which he considers to be guard dogs, have been at large, unsupervised at a primary school full of children.
4.3 Mr Mitchell doesn’t believe his dogs would harm a human, however he also had the same opinion about his dogs harming stock.
4.4 All dog owners in the area have been made aware of the spate of stock attacks that have been happening over the last couple of months.
4.5 Stock worrying is a natural predatory behaviour of the canine species, not un-similar to a cat chasing a mouse. The most significant contributing factor to stock worrying is the lack of control of dogs.
5.0 OPTIONS - NGĀ KŌWHIRINGA
Option One - Recommended Option - Te Kōwhiringa Tuatahi – Te Kōwhiringa Tūtohunga
5.1 Uphold the decision of the Animal Control Officer to retain the dogs pending the outcome of the prosecutions currently before the Court.
Advantages:
· The Community is kept safe as the dogs cannot worry stock, domestic pets or cause a general nuisance
Disadvantages:
· The owner is unable to take the dogs home
· The owner accumulates sustenance costs at $14.00 per day while the dogs are kept in custody ($7.00 per day, per dog).
Option Two – Status Quo - Te Kōwhiringa Tuarua – Te Āhuatanga o nāianei
5.2 Rescind the decision of the Animal Control Officer to retain the dogs, pending the outcome of the prosecutions currently before the Court.
Advantages:
· Council no longer has the costs associated with care of the two dogs
· The owner no longer accumulates sustenance costs at $14.00 per day while the dogs are kept in custody ($7.00 per day, per dog)
Disadvantages:
· The Community is at risk as the dogs have a high potential to worry stock or cause a general nuisance.
6.0 NEXT STEPS - TE ANGA WHAKAMUA
The owner of these two dogs is facing prosecution. A Court date is yet to be set.
a⇩ |
Notice of Retention for Marley |
CG-14-12-00216 |
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b⇩ |
Notice of Retention for Beau |
CG-14-12-00217 |
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c⇩ |
Request from Asher Mitchell for release of dogs (Marley and Beau) |
CG-14-12-00218 |
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SUMMARY OF CONSIDERATIONS - HE WHAKARĀPOPOTO WHAIWHAKAARO
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Fit with purpose of Local Government - E noho hāngai pū ai ki te Rangatōpū-ā-rohe
Council is required to give effect to the purpose of local government as set out in section 10 of the Local Government Act 2002. That purpose is to enable democratic local decision-making and action by (and on behalf of) communities, and to promote the social, economic, environmental, and cultural well-being of communities in the present and for the future.
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Link to the Council’s Community Outcomes - E noho hāngai pū ai ki te rautaki matua This proposal promotes the Social well-being of communities in the present and for the future.
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Māori Impact Statement - Te Tauākī Kaupapa Māori There are no impacts for Tangata Whenua:
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Sustainability - Te Toitūtanga There are no potential long-term implications for sustainability:
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Financial considerations - Ngā Whaiwhakaaro Ahumoni There are no financial considerations:
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Significance and Engagement - Te Hiranga me te Tūhonotanga This decision/report has been assessed under the Council's Significance and Engagement Policy as being of no significance.
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Consultation – internal and/or external - Whakawhiti Whakaaro-ā-roto, ā-waho Given the nature of the application there is no requirement for external engagement with parties other than the applicant:
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Risks: Legal/ Health and Safety - Ngā Tūraru: Ngā Ture / Hauora me te Haumaru The Community is at risk as the dogs have a high potential to worry stock, domestic pets or cause a general nuisance:
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Rural Community Board - Ngā Poari-ā-hapori There are no implications for the Rural Community Board:
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