Have your say on our proposed bylaw Structures in Public Places – Verandahs

The types of verandahs we want to regulate are those that extend over public places, such as footpaths. The proposed bylaw does not affect the use and enjoyment of purpose-built, load-bearing balconies nor regulate verandahs on private property.

This statement of proposal is to introduce
Part 10: Structures in Public Places – Verandahs,
of the Wellington City Council Consolidated
Bylaw 2008.

We are authorised under the Local Government Act 2002 (LGA) to make bylaws to:
protect the public from nuisance
protect, promote, and maintain public health and safety
minimise potential for offensive behaviour in public places. Verandahs are an important feature of the urban environment,
particularly in Wellington’s central city and suburban centres.
They give shelter and protection from Wellington’s weather and
add to our city’s character and attractiveness.

The Council has surveyed the city’s verandahs and established that a number need immediate action to be restored to a reasonable and safe standard.

We’d like your feedback on a proposed bylaw requiring building owners to repair and maintain their verandahs to a reasonable standard. This will improve public safety, contribute to the city’s resilience, protect people from the weather, and make the city an attractive place to visit.

Verandahs play a role in making Wellington a great place to live, work, and play.

Have your say
Please submit your feedback
before 5pm, Wednesday 10 June 2015

Have your say

Please submit your feedback before 5pm, Wednesday 10 June 2015

We are keen to know what residents, ratepayers, and stakeholders think about the proposed bylaw.

Please make a submission online at wellington.govt.nz/verandahs, email your submission to policy.submission@wcc.govt.nz or complete the enclosed submission form and send it to Verandahs Bylaw, Freepost, Wellington City Council, PO Box 2199, Wellington.

For copies of this document, visit wellington.govt.nz/verandahs, email policy.submission@wcc.govt.nz or phone 04 499 4444.
Or visit the City Service Centre or your library.

If you’d like to make an oral submission to Councillors, please indicate this on your submission form and include your contact details.
We will contact you to arrange a time for you to speak. Submissions will be heard by the Transport and Urban Development Committee in June 2015.

Stay in touch on this topic – sign up for our weekly enewsletter My Wellington or for web alerts via our website.

Timeline
The timeline for considering the proposed bylaw is:

When	Activity

Friday 8 May–
Wednesday 10 June

Consultation period

Thursday 25 June	Transport and Urban Development Committee hears
oral submissions

Wednesday 5 August	Transport and Urban Development Committee
considers the report on all written and oral submissions and decides whether to adopt the proposed bylaw

Wednesday 26 August	Council considers whether to adopt the
proposed bylaw

Tuesday 1 September	If adopted, the bylaw comes into effect

More about the proposal

Why we need the bylaw

This statement of proposal relates to introducing Part 10: Structures in Public Places – Verandahs, of the Consolidated Bylaw (the bylaw).

The Council has identified an issue with the safety and resilience of verandahs across Wellington. We propose a bylaw to manage the maintenance and repair of verandahs over a public space.
The main elements of the proposed bylaw are:
a process to construct or alter a verandah
requirements for building owners to maintain and repair existing verandahs
an official process for the Council to issue notices to building owners for defective verandahs
provisions for authorising Council action to undergo cleaning, alteration or removal of verandahs.

The Wellington City District Plan requires buildings to have verandahs along the main strategic routes within the central city and suburban centres. This is to provide much needed protection from weather for those working, visiting, and living in the city. Verandahs also add to the character and unique feel
of the city.

The Council’s Building Resilience team surveyed verandahs in the central city and suburban centres. The survey identified that of the approximate 900 verandahs across the city, 225 need some form of repair and, of those, up to 45 need immediate action to be restored to a reasonable and safe standard.

The Council recommends introducing a bylaw to manage the city’s network of verandahs. We want to work proactively with building owners to improve the state of verandahs. Our aim is to prevent verandahs from deteriorating to the point where owners are forced to take action at significant cost. Regular maintenance is cheaper for owners than doing major repairs down the track.

Defective verandahs by ward
Ward	Number	
Northern	21	
Onslow – Western	13
Lambton	135	
Southern	34	
Eastern	22	
Total	225	

How we manage verandahs now

Currently, the Council manages verandahs through these mechanisms.
The Local Government Act 1974, which provides the Council with ownership of the airspace above the road that verandahs occupy.
Clauses found in individual airspace licence agreements.
Conditions that may exist in a resource consent issued for the building.
Provisions in the Building Act 2004 that allow the Council to issue dangerous building notices.

The difficulty with this approach is that not all of these powers are applicable to each individual verandah. The Council has the laborious task of having to investigate each verandah, and then require work to be done by invoking the powers that apply in that particular situation.

Applying the above powers is also ambiguous and unclear, making it difficult to require building owners to repair and maintain their verandahs. Not addressing defective verandahs poses a public safety risk and potential legal risk for the Council. It also does not contribute to the city’s resilience.

The Council recommends the most appropriate solution to address this regulatory gap is to introduce a new bylaw.

Other options investigated

Other options considered alongside a bylaw were:

Option	Considerations

Do nothing. The Council continues with the current mixture of powers, and addresses verandah maintenance as it arises.

The disadvantages are that it leaves:
The Council and property owners with an ambiguous and unclear regulatory framework to manage the state of verandahs.
The Council open to possible legal risk.

Work with building owners to voluntarily address repairing and maintaining their verandahs.

This would incur some cost and its success would depend on whether building owners respond positively and are willing to do the required work.
Our experience in working with building owners (for example, on earthquake-prone buildings) is there are always building owners who will not complete required work.

The Council pays for all existing verandahs’ repairs and maintenance.

This would incur significant and ongoing costs.
While it is likely to address many defective verandahs throughout the city, the Council would still need the owner’s permission to do this work and some verandahs may not be promptly rectified.

These options would not adequately improve the state of verandahs across the city within reasonable timeframes and existing budgets.

Therefore, Council officers concluded that a new bylaw would be the most appropriate option to resolve the problem.

Why the bylaw is the best option

A bylaw would:
set a clear regulatory framework for the Council to operate within
provide clear obligations for building owners
enable the Council to require building owners to repair and maintain their verandahs
allow the Council to deal with verandahs in a universal way, rather than referring to each verandah’s circumstances
enable us to communicate with building owners consistently.

It is important to note the proposed bylaw is only for verandahs over public places – not verandahs within private property boundaries.

Although we propose implementing a bylaw, the Council will first write to building owners with defective verandahs asking them to repair their
verandahs to a reasonable standard. If they don’t take any action then this will be followed up once the bylaw is in place.

Most appropriate form of bylaw

Bill of Rights Act 1990
implications

Background

It’s possible that other structures in public places will need to be covered by this bylaw in the future. Therefore, the proposed bylaw will be a new Part 10: Structures in Public Places in the Wellington Consolidated Bylaw 2008.
If any new structure needs to be covered by this bylaw it can be added to the new Part 10. This is a more flexible approach and form of bylaw, as opposed to amending the current Part 5 Public Places or creating a new standalone bylaw.

The proposed bylaw is also clear and concise, which will be helpful to building owners and enable consistent application for the Council.

Section 155(3) of the Local Government Act 2002 (LGA) expressly requires
that bylaws are consistent with the Bill of Rights Act 1990 (BORA). In addition,
section 155(2) (b) of the LGA requires local authorities to assess any BORA
implications before making a bylaw.

Put simply, the local authority must consider whether the bylaw breaches a right or freedom and, if so, whether this breach can be justified as a reasonable limit on that right or freedom under section 5 of BORA. Only those reasonable limits “demonstrably justified in a free and democratic society” are permissible.

The fundamental objective of this bylaw is public safety. The bylaw requires building owners to maintain and repair their verandahs to avoid the structures becoming dangerous to members of the public. The bylaw will increase city resilience not just in terms of earthquake resilience, but also other natural events, such as storms and strong winds. This is particularly important in the central city where a large number of defective verandahs are located.
Bylaws are one of the most powerful forms of local government regulation;
in light of the benefits of improved public safety and increasing city resilience,
the obligations that the bylaw imposes are justifiable and indeed necessary.

The proposed bylaw does not go beyond what is required to achieve the objective and adheres to LGA requirements of making a bylaw, and does not impinge on current rights and freedoms laid out in BORA.

Before 1991, the Council had a Building Bylaw, which gave the Council powers to regulate these verandahs. But with the introduction of the Building Act 1991 (the Act), the bylaw was superseded.

The Building Act made it difficult and less clear to apply the requirements of the Act to building work that fell outside the boundaries of the site, particularly to defective or poorly maintained verandahs.

The Act also only gives the Council clear powers when a verandah is considered to be dangerous. It doesn’t provide the Council with the ability to require verandahs to be maintained to an acceptable standard (in other words, to prevent verandahs becoming dangerous in the first place).

To address this regulation gap, the Transport and Urban Development Committee agreed to introduce a bylaw as laid out in this statement of proposal at the 16 April Committee meeting. There’s more information and the Committee papers on wellington.govt.nz/tud160415

The bylaw- making process

Local Government Act 2002
requirements

Bylaws are rules made by local authorities to respond to particular issues within their district in a way that is appropriate for their particular community.

Local authorities get their bylaw-making powers from legislation, namely the Local Government Act 2002 (LGA).

The Council is authorised under the LGA to make bylaws for protecting the public from nuisance; protecting, promoting, and maintaining public health and safety; and minimising the potential for offensive behaviour in public places.

The Council operates under the Local Government Act 2002 (LGA), which sets out:
the procedural requirements for making or amending a bylaw
what issues can be controlled through a bylaw
the process the Council must follow to make a bylaw.
When making a bylaw, the local authority must consider whether:
a bylaw is the most appropriate way of addressing the perceived problem. (See Why a bylaw is the best option, on the previous page)
the proposed form of the bylaw is appropriate
the proposed bylaw gives rise to implications under the New Zealand Bill of Rights Act 1990; a bylaw must be consistent with the Bill of Rights.

The local authority must consult the community through the special consultative procedure when making, amending or reviewing a bylaw. This is under LGA section 86. This is the stage we’re at now.

After deciding to adopt the bylaw, the local authority must give public notice of when the bylaw comes into operation.

Once a bylaw is operative, the Council must regularly review it, as per LGA requirements.

Tell us what you think – visit wellington.govt. nz/verandahs

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Draft bylaw
Draft Wellington City Council Consolidated Bylaw 2008 Part 10: Structures in Public Places

Definitions

Good repair includes the absence of: visible rust; holed, rotted or otherwise damaged materials or elements; loose, visible or exposed electrical wires; and/or projections or other features that pose a danger to persons using a public place.

Verandah a roofed space extending from a building and includes any structure, assembly, machinery or equipment erected on, or attached to the side or underside of, a verandah.

Verandahs

Written approval required
No person may:
construct a new verandah over a public place; or
emolish an existing verandah over a public place; or
enlarge, extend, or add to an existing verandah over
a public place;
without prior written approval of the Council.

aintenance and repair of verandahs

Any verandah constructed over a public place shall be maintained in a clean and weatherproof condition and in a state of good repair.

If the Council considers that a verandah constructed over a public place is not in a clean or waterproof condition or a state of good repair, the Council may
serve a written notice on the owner of the building to which the verandah is attached, requiring the owner to clean, repair, or alter the verandah so that it complies with this Bylaw.

If the Council considers that the alteration of a verandah constructed over a public place is necessary to enable or accommodate the safe conduct of another activity in the public place, the Council may serve a written notice on the owner of the building to which the verandah is attached, requiring the owner to alter the verandah in the manner, or to the extent, stated
in the notice.

Any action required by a notice served on an owner under clause 2.2.2 or clause 2.2.3 must be carried out by the date stated in the notice.

If an owner fails to carry out any action required by a notice served under clause 2.2.2 or clause 2.2.3 by the date stated in the notice, the Council may authorise the cleaning, alteration or removal of the verandah
in accordance with Part 1, clauses 1.10.1 to 1.10.3 of this Bylaw.

No person shall stand on or otherwise occupy any verandah constructed over a public place, except for the purpose of inspection, cleaning, maintenance, repair, alteration, emergency egress, or carrying out work in accordance with this Bylaw.

2.3 Clarifying Provisions
2.3.1 For the avoidance of doubt, clauses 2.2.1 to 2.2.6:

are additional to the provisions of any encroachment licence or encroachment lease granted by the Council under this Bylaw or the Local Government Act 1974;

re additional to any other provisions of this Bylaw, any enactment, or any Council policy relating to or affecting a verandah over a public place;

do not relieve any person of any duty or responsibility arising under any other provisions of this Bylaw, any enactment, or any Council policy relating to or affecting a verandah over a public place; and

do not limit the Council’s decision-making or enforcement powers under any other provisions of this Bylaw, any enactment, or any Council policy.

CSWCC101038

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