Agenda of Dams Policy Hearings Subcommittee



Report To:	Dams Policy Hearings Subcommittee
Meeting Date:	14 August 2024
Report Writer:	Merinda Pansegrouw, Committee Advisor
Report Authoriser:	Steve Groom, Governance Manager
Purpose:	To appoint a Chairperson and Deputy Chairperson for the Dams Policy Hearings Subcommittee.

Appointment of Dams Policy Hearings Subcommittee Chair and Deputy Chair

Executive Summary

The Strategy and Policy Committee established and appointed members to a Hearing Sub-Committee to hear submissions, deliberate and make recommendations to the Strategy and Policy Committee on its draft Policy on Dangerous Dams, Earthquake-prone Dams and Flood-prone Dams 2024.

Hearings/Deliberations have been scheduled for Wednesday, 14 August 2024. The appointment of a Chairperson and Deputy Chairperson for the Dams Policy Hearings Subcommittee is required.

Recommendations

That the Dams Policy Hearings Subcommittee:

1 Receives the report, Appointment of Dams Policy Hearings Subcommittee Chair and Deputy Chair;

2 Confirms System ____ as its voting system to elect a Chairperson and a Deputy Chairperson as set out in Clause 25, Schedule 7 of the Local Government Act 2002; and

3 Appoints Councillor ___________________ as Chairperson of the Dams Policy Hearings Subcommittee and Councillor ________________________ as Deputy Chairperson of the Dams Policy Hearings Subcommittee.

1. Introduction

The Strategy and Policy Committee established and appointed the Dams Policy Hearings Sub-Committee and approved its terms of reference at its meeting held on 25 June 2024.

The terms of reference of the subcommittee determines that the Hearings Subcommittee members shall appoint a Chair and Deputy Chair. (Refer Attachment 1)

The committee appointed Cr Jane Nees, Cr Stuart Crosby, Cr Kat Macmillan and Cr Ron Scott as members of the Hearings Subcommittee.

1.1 Legislative Framework

The Dams Policy Hearings Subcommittee was established by the Strategy and Policy Committee in accordance with Clause 30(2) of Schedule 7 to the Local Government Act 2002 (LGA).

Being a Subcommittee established under the LGA, its procedures and powers are governed by the same rules that apply to the committee that established in accordance with Clause 30(4) of Schedule 7 of the LGA.

1.1.1 Voting System

The process for the election of a Chairperson/Deputy Chairperson is set out in Schedule 7 of the Local Government Act 2002, clause 25. If a vote is required the Chief Executive must follow the provisions of clause 25, which identifies the two voting systems that Council may use to conduct a vote. There are two systems to choose between:

System A

(a) Requires that a person is elected or appointed if he or she receives the votes of a majority of the members of the local authority or committee present and voting; and

(b) Has the following characteristics:

(i) there is a first round of voting for all candidates; and

(ii) if no candidate is successful in that round there is a second round of voting from which the candidate with the fewest votes in the first round is excluded; and

(iii) if no candidate is successful in the second round there is a third, and if necessary subsequent, round of voting from which, each time, the candidate with the fewest votes in the previous round is excluded; and

(iv) in any round of voting, if 2 or more candidates tie for the lowest number of votes, the person excluded from the next round is resolved by lot.

System B

(a) Requires that a person is elected or appointed if he or she receives more votes than any other candidate; and

(b) Has the following characteristics:

(i) there is only 1 round of voting; and

(ii) if 2 or more candidates tie for the most votes, the tie is resolved by lot.

Staff recommend that the Subcommittee uses System B as the voting system.

1.1.2 The Voting Process

a) Committee resolves its voting system to be adopted and the procedure to be used in the event of a tie.

b) Nominations for Chairperson called for (nominated and seconded).

c) Voting for Chairperson as per agreed system.

d) Chairperson declared elected

Article I. Ground Rules

a) A member may nominate or second themselves.

b) Any member can call for a Division under Standing Orders (a record of how members voted).

c) Any member can abstain from voting.

d) In the event of a tie between the highest (and/or lowest) polling candidates, the names of the candidates receiving an equal number of votes be put into a container and the candidate’s name drawn out, by an independent person (such as the Chief Executive), is deemed to be elected.

2. Making Good Decisions Programme certification

The Terms of Reference of the Subcommittee determines that it must comprise three Councillors who have successfully completed the ‘Making Good Decisions programme certification’.

Subcommittee members who currently hold chairing endorsement and panel ‘Making Good Decisions programme’ certification, along with the expiry dates, are as follows:

· Jane Nees – Chair endorsement, 30 June 2026

· Ron Scott – Panel certification, 30 June 2026

· Katherine Macmillan – Panel certification, 30 June 2026

· Stuart Crosby – Certification expired in 2018

Certificate holders - local body elected members | Ministry for the Environment

There is no specific requirement that the chair/deputy chair has completed the chair certification.

3. Considerations

3.1 Risks and Mitigations

There are no significant risks associated with this matter.

3.2 Climate Change

The matters addressed in this report are of a procedural nature and there is no need to consider climate change impacts.

3.3 Implications for Māori

The matters addressed in this report are of a procedural nature.

3.4 Community Engagement

Engagement with the community is not required as the recommended proposal / decision relates to internal Council matters only.

3.5 Financial Implications

There are no material unbudgeted financial implications and this fits within the allocated budget.

4. Next Steps

· Hearings and deliberations - 14 August 2024

· Recommendations made to Strategy and Policy Committee - Tuesday 17 September 2024.

Attachments

Attachment 1 - Terms of Reference - Hearings Subcommittee for DDP Review 2024 ⇩



Report To:	Dams Policy Hearings Subcommittee
Meeting Date:	14 August 2024
Report Writer:	Arsalan Karim, Planner
Report Authoriser:	Namouta Poutasi, General Manager, Strategy and Science
Purpose:	Provide staff recommendations to the hearings subcommittee based on the submissions received for the draft policy on dangerous, earthquake-prone and flood-prone dams

Report to the Hearings Subcommittee: Policy on Dangerous Dams, Earthquake-prone Dams and Flood-prone Dams

Executive Summary

Public consultation on the proposed draft of the policy for dangerous dams, earthquake-prone dams and flood-prone dams was open from 26 June 2024 to 29 July 2024.

Two submissions were received, and both the submitters indicated that they did not wish to speak at the hearing scheduled for 14^th August 2024. So deliberations can now proceed.

The Dams Policy Hearing Sub-Committee will now consider the matters raised in submissions and proposed changes to the policy.

Staff recommend two changes:

· Replacing Council’s regulatory priority matrix with risk-based priority matrix.

· Adding to the policy an implementation/commencement date of 27 September 2024.

Once the sub-committee has provided direction on how to address matters raised in submissions, it will then recommend to the Strategy and Policy Committee on 17 September that they adopt the amended policy.

Recommendations

That the Dams Policy Hearings Subcommittee:

1 Receives the report, Report to the Hearings Subcommittee: Policy on Dangerous Dams, Earthquake-prone Dams and Flood-prone Dams;

2 Considers all submissions received pursuant to section 83 of the Local Government Act 2022;

3 Recommends Strategy and Policy Committee to adopt the proposed draft of the “Policy on Dangerous Dams, Earthquake-prone Dams and Flood-prone Dams 2024” (replacing the existing Dangerous Dams Policy 2006), subject to amendments identified by the Hearings Subcommittee during deliberations held on 14^th August 2024; and

4 Delegates to the General Manager of Strategy and Science the ability to make minor corrections if required (e.g grammatical).

1. Introduction

A summary of the process to date is as follows:

· Section 161 of the Building Act 2004 (Building Act) requires Regional Council to adopt a policy on dangerous, earthquake-prone dams and flood-prone dams. Bay of Plenty Regional Council adopted the Dangerous Dams Policy 2006 which was guided by the ‘Regulations for the Dam Safety Scheme: Discussion Document May 2006’.

· Central Government adopted the Building (Dam Safety) Regulations 2022 (Regulations) which came into effect in May 2024. The regulations introduced updated measures and procedures to identify, manage and respond to dams that are deemed dangerous, earthquake-prone and flood-prone; leading to the review of the Dangerous Dams Policy 2006 to comply with the regulations.

· The review resulted in the development of the draft policy titled ‘Policy on Dangerous Dams, Earthquake-prone Dams and Flood-prone Dams 2024.

· Staff worked closely with other key stakeholders before finalising the draft policy. This involved working closely with Ministry of Business, Innovation and Employment and other regional councils to have closely aligned policies across all regions adopted within the statutory timeline.

· Staff consulted BOP district councils and sought their feedback leading to refined aspects of the proposed policy based on their recommendations.

· The final draft of the proposed policy was presented to the Strategy and Policy (S&P) Committee on 25 June 2024. The committee approved the draft policy and the statement of proposal for public consultation in accordance with the special consultative procedure as stated in Part 6 of the Local Government Act 2002 (LGA).

· The committee established the hearings subcommittee to lead the special consultative procedure, consider all the submissions made by public and effected parties on the draft policy, hear submitters and deliberate for the purpose to make recommendations to the committee.

· The committee appointed Cr Jane Nees, Cr Stuart Crosby, Cr Kat Macmillan and Cr Ron Scott as members of the Hearings subcommittee.

· Public consultation on the proposed draft policy opened on 26^th June 2024 and ended on 29^th July 2024.

1.1 Legislative Framework

The Building Act defines dangerous dam, earthquake-prone dam and flood-prone dam. According to section 153 and 153A of the Building Act:

· A dangerous dam is defined as a high potential or medium potential impact dam, and is likely to fail:

a) In the ordinary course of events; or

b) In a moderate earthquake (as defined in the regulations); or

c) In a moderate flood (as defined in the regulations).

· A dam is an earthquake-prone dam for the purposes of the Act if the dam:

a) Is a high potential impact dam or a medium potential impact dam; and

b) Is likely to fail in an earthquake threshold event (as defined in the regulations).

· A dam is a flood-prone dam for the purposes of the Act if the dam –

a) Is a high potential impact dam or a medium potential impact dam; and

b) Is likely to fail in a flood threshold event (as defined in the regulations)

The proposed draft policy applies to all classifiable dams. The meaning of a classifiable dam is provided by section 5 of the regulations. A dam is classifiable if it is 4m or higher in height and stores 20,000m³ or more volume of water or any fluid. Any future change to the meaning of the classifiable dam in the regulations shall apply to the policy without any need to review.

Dam owners are required to determine if their dam is classifiable and assign a certain potential impact classification to their classifiable dam according to section 8 of the regulations i.e. Low, Medium and High Potential impact.

Owners of dams with medium and high potential impact are required to develop / update their dam safety assurance program according to the measures provided by section 10 to 18 of the regulations. These owners also need to engage a certified engineer to certify their dam’s potential impact classification and dam safety assurance program and develop annual dam compliance certificate. All these documents are to be submitted to Council by the dam owner.

Under the Building Act, Council is required to work with owners of dams that carry medium or high potential impact classification to ensure that the dam safety assurance program according to the regulation is in place to reduce the risk of dam failure and threat to the surrounding cultural sites, community facilities, major infrastructure, natural environment and people.

Council is not responsible for classifying a dam, determining or certifying its potential impact classification and preparing, developing, providing and certifying the dam safety assurance program for the dam. Council cannot make any change to the regulations and requirements placed on classifiable dams.

Council is required to only administer the regulation, including establishing a register of classifiable dam and clearly set how it will respond if it is notified of a dangerous, earthquake-prone and flood-prone dam by stating the approach to perform its functions, priorities in performing those functions and how the policy will apply to heritage dams.

The policy review to replace the existing policy ‘Dangerous Dams 2006’ with the draft ‘Policy on Dangerous Dams, Earthquake-prone Dams and Flood-prone Dams 2024’ is in accordance with the section 162(2) of the Building Act through the special consultative procedure determined in section 83 of the LGA which requires public consultation.

1.2 Alignment with Strategic Framework

A Healthy Environment	We develop and implement regional plans and policy to protect our natural environment.
Freshwater for Life	We collaborate with others to maintain and improve our water resource for future generations.
Safe and Resilient Communities	We provide systems and information to increase understanding of natural hazard risks and climate change impacts.
A Vibrant Region	We work with and connect the right people to create a prosperous region and economy.
The Way We Work	We honour our obligations to Māori.

The proposed policy on Dangerous Dams, Earthquake-Prone Dams and Flood-Prone Dams directly contributes to the community outcomes set forth in the Council’s Long-Term Plan 2018-2028 for safe and resilient communities.

1.2.1 Community Well-beings Assessment

Dominant Well-Beings Affected

þ Environmental

High - Positive

þ Cultural

High - Positive

þ Social

High - Positive

þ Economic

High - Positive

The proposed policy establishes an updated regulatory framework and procedures for dam owners and Council that will reduce the risk of dam failure. Such procedures ensure the protection of the surrounding natural environment, community facilities, cultural and heritage sites and major and critical infrastructure from risk of dam failure and thereby having a high-positive impact on the environment, cultural, social and economic aspects of the region.

2. Consultations on the proposed policy

2.1 Submissions

2.1.1 Public and stakeholders consultation

Consultation on the proposed policy on dangerous dams, earthquake-prone and flood-prone dams began on the 26^thJune 2024 and ended on the 29^thJuly 2024. The special consultative procedure allows for a selection of consultation tools to be used to reach out to the public and stakeholders and gather their feedback. For the purpose, communication plan was developed to support the standard public notification process. This included:

· Shaping the statement of proposal to ensure information on the ‘what, why and how’ of the draft policy was clear and easy to understand.

· A webpage on the BOPRC website with details on the proposed policy and regulations. The webpage provided a link to access the statement of proposal and the draft policy, as well as contact details of staff if people wished to have more details on the policy review. The webpage provided access to the online submission form, with a link to attach supporting documents in case the submitters wish to do so.

· Direct email communications were sent to all 73 owners of consented dams (whose details are available and maintained in the register of consented dams in the region), 35 industry associations (details provided by MBIE) and 7 district councils. This email included an introductory letter and links to the webpages. The same letter and links were also sent via mail to the same list.

· Direct communications were sent to industry bodies to include in their relevant channels (this includes NZKGI, Zespri, Horticulture NZ, the BOP Federated Farmers rep, Dairy NZ and Beef & Lamb NZ).

· Short form communications included in Regional Council’s regular publications (including Around the Rohe, Around the Eastern Bay and Participate newsletter)

· A media release was distributed and picked up by local outlets (including Rotorua Now, SunLive and the Whakatāne Beacon)

· Direct emails on the policy review with link access to the webpage to more than 500 subscribers of BOPRC’s policy and plan news.

· Public notice was placed in the following newspapers for the following dates.

- Bay of Penty (BoP) Times: Monday 01 July 2024.

- Daily Post: Monday 01 July 2024.

- Whakatane Beacon: Wednesday 03 July 2024

- NZ Herald: Monday 01 July 2024

According to the statistics received, there were:

- 150 visits were made to the webpage.

- 29 people downloaded the draft policy.

- 21 people downloaded the Statement of Proposal

- 2 submissions were received.

2.1.2 Key submission issues and outcomes

A total of 2 submissions were received by BOPRC on the draft policy covering 6 submission points. Both the submitters wished not to be heard. A copy of the submissions received is attached as Attachment 1. Both the submissions were supportive of the proposed draft policy but had some concerns which are explained below.

Submission themes

The following are the key themes identified from the submissions:

a) Both submitters supported the intent of the policy to improve dam safety and reduce the risk of posed to people, facilities, infrastructure, and environment.

b) Submitter A raised concern over Council’s regulatory priority matrix to prioritise Council’s actions and approach in relation to dangerous, earthquake-prone and flood-prone dams. The submitter wants Council to adopt a risk-based approach since the risk from dangerous dams and prone dams are different and therefore should be prioritised differently.

c) Submitter A also raised concerns regarding Council’s approach and communication with communities downstream dangerous and prone dams. Two submissions points were raised on this issue. The submitter suggested that Council communication should be clear and done cautiously and carefully to avoid raising public alarm or backlash. Further communities should be informed that prone dams are lower risk than dangerous dams, a high medium or low Potential Impact Classification (PIC) dam with a dam safety assurance program does not pose significant risk, and that PIC does not reflect risk of a dam. The submitter also suggested that Council clarity who the issuing authority for a Notice of Fix or a written notice requiring work is.

d) Submitter B raised concern regarding the requirements under the regulations. Two submission points were raised on this issue. The submitter was concerned with the requirement for low PIC dams to be certified by a recognised engineer. The submitter noted that it increases compliance costs and administrative burdens, while also questioning the practicality of this requirement for farmers. Their other concern was that the requirement will result in shortage of qualified engineers.

e) One submitter suggested Council prepare separate guidance material for farmers, noting the needs for farmers will be different to the needs of other dam owners.

2.1.3 Options and analysis

Staff acknowledge the time submitters have put into making submissions, however we also note that the hearings subcommittee can only make decisions on submissions points that do not challenge or invalidate any provisions of the Act and the Regulations.

When the Council becomes aware of a dangerous, earthquake-prone or flood-prone dam it is guided in its approach by the policy to communicate with the dam owners and the communities downstream. In relation to the communication regarding issuing a notice to fix and notice requiring work, Council acts under the Building Act and must comply with the requirements of the legislation that is in force at the time.

Submission points that would require changes to the legislative definitions or that suggest changes to the Regulations themselves, are outside Councils statutory powers. For example, the proposed policy cannot address or change any of the requirements placed on dam owners to assess their dams and engage a recognised engineer to certify the dams PIC.

A summary of the submissions including BOPRC staff comment and recommendations are included in Attachment 1. Attachment 2 contains a copy of the full submissions.

In response to the submissions received, staff have recommended one change to the proposed draft of the policy.

- Text proposed to be added to the draft policy is red in colour and has single underline.

- Text proposed to be deleted from the draft policy is marked as struck through.

The staff recommended changes are:

1. Replacing Council’s regulatory priority matrix with risk-based priority matrix. The risk-based priority matrix helps to determine Council’s priority in responding to dangerous and prone dams. The matrix shows how the flood and earthquake return period is more frequent / likely for the dangerous dam threshold than it is for prone threshold.

2. Staff recommend the implementation or commencement date of the draft policy be 27 September 2024. The implementation / commencement date in the draft policy was left blank to be filled later as part of staff recommendations on the draft policy.

2.2 Hearings

All consultation material and tools asked potential submitters whether they wished to be heard in support of their submission, including if they wished to use New Zealand sign language or speak in te reo Māori. Staff also followed up with submitters who didn’t indicate a preference. Neither of the submitters wished to speak.

Therefore, deliberations will be held on the 14^th of August 2024 in accordance with the terms of reference for the Hearings Subcommittee, and in accordance with the hearings procedures. Following direction from the Hearings Subcommittee on submission points and changes to the proposed policy, a report documenting the recommendations of the Hearings Subcommittee will then be taken to the Strategy and Policy (S&P) Committee Meeting on 17^th September 2024 for adoption.

3. Considerations

3.1 Risks and Mitigations

There are no significant risks associated with the recommendations on the proposed policy on dangerous dams, earthquake-prone and flood-prone dams. Council has acted in accordance with the Treaty of Waitangi principles of ‘good faith’, ‘partnership, protection’ and ‘participation’ by continuing to consult general public and specific stakeholders on the proposed policy.

3.2 Climate Change

The matters addressed in this report and recommendations are of a procedural nature and there is no need to consider climate change impacts. This decision will have no impact on the ability of the Council or region to proactively respond to the impacts of climate change now or in the future.

3.3 Implications for Māori

The Dangerous Dams Regulations (which drive this policy) are designed to enhance community safety but only through proscribed technical processes about assessment of and responding to risk. There is an existing policy, and this process is making technical amendments only. Because this update is being required by Regulation, there is limited ability to influence the nature of the draft policy. Consultation efforts have been limited as a result.

General communication/consultation on the draft policy was also done with subscribers of BOPRC policies and plans as well as through media release and public notice in newspapers. Engagement of iwi/hapu was not undertaken due to the nature of the draft policy and what impacts implementation will have. If dams are owned by tangata whenua they would have been consulted as all dam owners were contacted via Council’s consented dam’s database or the database of industry associations.

It is important to note however that where any dam is identified as being dangerous, and as a result the community is subsequently engaged in discussions, then engagement with tangata whenua will be a key element of this.

3.4 Community Engagement

CONSULT

Whakauiuia

To obtain input or feedback from affected communities about our analysis, alternatives, and /or proposed decisions.

The proposed policy draft has undergone community engagement at various steps of its planning through to implementation. In doing so Council:

- Adopted the special consultative procedure to consult the community and dam owners.

- Accepted submissions from the community and provide them the opportunity to be heard during hearings on submissions; and

- Gave due consideration to submissions including recording hearings and ensuring community views are considered, provided hearing committee recommendations are not ultra vires

Please refer to the summary of submissions and the actual submissions attached.

3.5 Financial Implications

If the recommendation is adopted by Council, will it result in:

If the answer is ‘no’ to both questions please select the dropdown option 1 and complete appropriately.

If the answer is ‘yes’ to either question please select “Budget Implications” in the building block below and liaise with your Management Accountant in order to complete the Financial Impact table.

There are no material unbudgeted financial implications and this fits within the allocated budget.

4. Next Steps

Next Steps: What next? What resources are needed? Further analysis? Timeframes ahead. Any consultation planned. Remind Council of the process ahead. Next update to Council?

Conclusion: Short concluding remarks. Referring back to recommendations. No new content.

Subject to the approval of the Hearings subcommittee, staff propose the following steps/activities with associated time frames.

S#	Proposed Activity	Timeframe
4	Deliberations held.	Wednesday 14 August
5	Hearing subcommittee finalise recommendations report and staff prepare cover report for Strategy and Policy Committee meeting.	21 August to 6 September
6	Hearing subcommittee recommendations on submissions and any proposed amendments to policy presented for Strategy and Policy Committee adoption.	17 September 2024 Committee meeting