FIRE SAFETY RULES
Below is a simpler version of a further submission. Take these steps:
FURTHER SUBMISSIONS ON PROPOSED PLAN CHANGE 4
This is a further submission on Plan Change No4 (PC 4) to the Kaipara District Plan in opposition to the plan change.
Individual or organisation: Individual
Tile (Mr/Mrs etc.):
I want my contact information to be public: Yes
I am unloading these further submission from a Word file.
Entitlement to make a submission
I am a person who has an interest in the proposal that is greater than the interest the general public has because:
(Delete those not applicable)
SUPPORT OR OPPOSITION TO ORIGINAL SUBMISSIONS
I support all the parts of the submissions of the original submitters who opposed PC4.
I oppose all the parts of the submissions of the New Zealand Fire Service and the Far North District Council which supported PC4.
Add any personal comments
I support the views expressed by Jonathan Larsen in his earlier submission and by Clive Boonham in his further submission.
If others make a similar submission I will consider presenting a joint case.
HOW TO SEND
When the document is complete send it by email to the following email addresses. They are the KDC addresses and the CC addresses are of those who made earlier submissions. It is a requirement of the Resource Management Act that a copy of your further submission is sent to each of those persons.
Just copy and paste the whole group into your email to the KDC.
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PREVIOUS SUBMISSIONS OF CLIVE BOONHAM
Submission on publicly notified proposal for policy statement or plan, change or variation Clause 6 of Schedule 1, Resource Management Act 1991
To: Kaipara District Council
Name of submitter: Clive Richard Gerald Boonham
This is a submission on a Private Plan Change No.4 proposed to the Kaipara District Plan. The Proposal is to change the Fire Safety Rules (Land Use) for buildings and structures in the Rural, Residential, Business (Commercial and Industrial), and the two Maori Purposes Zones to remove the requirement to comply with the New Zealand Fire Service Firefighting Water Supplies Code of Practice SNZ PAS 4509:2008.
The Proposal seeks to add an issue statement, a specific objective and three policies and an Other Methods section to Chapter Two of the District Plan. Chapter Two applies district-wide. At present the District Plan does not contain a policy framework with regards to structural fires.
It is proposed to remove the setback requirement for buildings in the Residential and Business Zones to be located at least 20 metres from naturally occurring or deliberately planted area of shrub or shrubland, woodlot or forest. This also includes removing the provision of a building having to be 20 metres from the dripline of any tree.
It is proposed to remove the provision relating to a 1971 Model Bylaw for Fire Prevention. This model Bylaw does not now exist and was never replaced.
It is not proposed to remove references to the New Zealand Fire Service Firefighting Water Supplies Code of Practice SNZ PAS 4509:2008 in the subdivision rules. However, this is open to submissions.
I could not gain an advantage in trade competition through this submission.
I am not directly affected by an effect of the subject matter of the submission that:
(a) adversely affects the environment; and
(b) does not relate to trade competition or the effects of trade competition.
The specific provisions of the proposal that my submission relates to are:
The whole proposal
My submission is:
(A) I oppose the proposal in its entirety and support the withdrawal of Proposed Plan Change 4 in its entirety. I propose that it is replaced with a new Plan Change to delete any reference in the District Plan to Fire Safety Rules and the NZFS Code of Conduct.
(B) REASONS FOR MY VIEWS
This is a perfect example of how local authorities squander the money of ratepayers.
The incorporation of the Fire Safety Rules in the KDC District Plan, based on the NZFS Code of Practice, was utterly ill-conceived. It was done by the KDC without any consideration of:
• The legal situation.
• The content of the Code and whether the contents were lawful.
• The ramifications that adoption of the Code has had for the amenity values of the district.
• The cost to the KDC (and ultimately the ratepayers) in implementing the Code and possible subsequent amendments.
• The necessity for legal and other opinions relating to the legality of obligations under the Code. Again at the cost of ratepayers.
• The cost to individuals in complying with the Code.
It is a perfect example of out-of-touch bureaucracies - the NZ Fire Service and the KDC - imposing their will on the people of Kaipara, without any understanding of the legal situation, to the detriment of the amenity values of the district, and to the financial well-being of the residents, and contrary to all common sense.
If allowed to continue it will turn Mangawhai, as an example, into a Tank Town completely denuded of vegetation and trees. A perfect example is the development on the causeway on Molesworth Drive just opposite the Museum.
The commissioners side-stepped some of the draconian features of the Rules by allowing smaller water tanks and modified requirements in respect of access, but only on obtaining the appropriate resource consents, and at great cost.
The cost of complying with the Plan by providing the required tanks, fire vehicle access and hardstand and special couplings has been enormous. The Evaluation shows that 177 consents to reduce the size of the tanks were granted but there is no indication of how many applicants installed the standard 45,000 litre tanks.
This caused community frustration with the new rules, and the Evaluation states:
It is considered that requiring resource consents for this is a disproportionate mitigation measure when compared to risks.
That is an understatement.
PLAN CHANGE 4
The Council is now proposing an alternative amendment to the District Plan which includes parts of the Code of Practice but to a reduced extent.
It is noted that the KDC is removing the requirement for dedicated water tanks of any size even though the NZFS is adamant that unreticulated sites must have tanks and that they must be at least 45,0000 litres.
Some of the changes are welcome but others simply perpetuate the confusion that surrounds the NZFS Code of Practice and whether it is legally applicable to the RMA and the Building Act.
Below I consider some of the changes planned for the District Plan.
2.3.14: This is a list of general statements that may or not be true but which take us nowhere.
It reiterates the special coupling requirement as if it is set in concrete. It has already been established that this is requirement is ridiculous. If the purpose of dedicated tanks is for firefighting then why make them only available to the Fire Service which will likely arrive too late?
2.4.15: What does “encourage and promote mean”?
2.5.17(a): What does “ensure” mean? What is an “adequate supply”? What is “reasonably anticipated land use”?
2.5.17(b): What does “promote” mean? What is an “alternative supply”? How much and what rules attach to the requirement? Given that the Fire Truck may not arrive before the house is destroyed, is this a suggestion that the untrained occupants should keep an alternative supply of water with the implication that they are to be responsible for fighting the fire. But the occupants cannot use the water because of the special coupling. We end up with water which no one can use, which is acknowledged in the proposed 2.3.14.
I quote from the Evaluation:
As far as a permitted activity is concerned, legal test specify that they should be clear and certain to “enable the Plan user to judge the meaning and effect of the rule at face value without having to resort to using explanations or seeking advice from those who wrote it.” [Source: Writing Effective and Enforceable Rules - Quality Planning Website.]
“Ensure”, “adequate”, “reasonably promote”, “alternative supply” etc are all vague terms that have no place in rules or policies.
These are all pie in the sky dreams that have no basis in reality until they are thoroughly considered and concrete proposals adopted.
They are utterly meaningless in a District Plan.
In my understanding most house fires are caused by cooking accidents, heaters of open fire accidents, candles overturned, or electrical faults. The obvious methods to prevent structural fires would be to set rules that ban cooking and heating in houses, ban the use of candles in houses, and ban the use of electricity. Such rules would deal with the actual issues.
Methods of ensuring safety must be balanced against convenience. The risk of death or injury from a house fire is extremely remote. Death or injury in a motor vehicle accident is far more likely. Should we all be required to wear crash helmets in cars and should the speed limit be reduced to 15 k and hour?
Note all the vague words in these proposals: Investigate, promote, support. They should have no place in the District Plan.
2.7.13: Is this an outcome that is relevant to a District Plan?
Amendments – Rural and Maori Purpose zones
In para 6. the provision for movement and access for fire service vehicles has been retained. So has the 20 metre rule for vegetation and trees.
Neither has any place in a district plan.
The 20m rule has been deleted from urban areas. Why is it proposed to retain it for rural areas?
It will prevent rural dwellers from beautifying the garden immediately adjacent to their house. (See para 12.)
Why should rural residents be denied the enjoyment of a garden with trees and shrubs surrounding their houses?
And who is going to distinguish what is a garden and what is “scrub or shrubland” etc?
This provision is being retained because of wildfire potential in rural areas (see para 12.) Think about it clearly? How many rural residences in Kaipara have been destroyed by wildfire?
How many of those houses destroyed by wildfires have resulted from, or been acerbated by, the rose beds, the fruit trees and ornamental trees surrounding the house?
Is the KDC going to appoint an inspector of rural gardens to ensure that there is no vegetation within 20 metres of a house? Unbelievable.
The 20 metre set back is wholly inappropriate for NZ conditions and seems to be taken straight out of a Code of Practice for Victoria, Australia.
The “recommendation” in para 6 that a fire sprinkler system be installed has no place in a district plan. Recommendations are meaningless.
Amendments- Urban rules
Paras 7, 8, 9, 10 and 11: These rules should be deleted in toto.
The proposed changes are a mixture of general statements, vague statements of supposed best practice, with no clear requirements or obligations. They break all the rules of good drafting.
They would be a nightmare to interpret and every application for approval would result in massive bills from lawyers, consultants and the Fire Service.
They also open the door to endless legal disputes and applications to the court to clarify the rules. In my experience the courts would not deal kindly with such poorly drafted rules.
The people of Kaipara were not impressed with the original incorporation of the Fire Safety Rules into the District Plan.
The commissioners attempt to water down the severity of the rules came at the expense of much forelock tugging and costly consents.
The fact that the proposed amendment to the rules under Amendment 2 was soundly rejected by submitters, shows the feelings of ratepayers towards this issue.
The proposed Change 4, while an improvement on proposed change 2, fails to face up to the fundamental problems relating to the interaction between the Code of Practice and the District Plan, which is effectively a creature of the RMA.
The proposed change smacks of a compromise to appease the NZFS and ignores the legal status of the plan and all the complications that have arisen because, quite simply, the provisions of the Fire Service Act have been ignored. The legal situation has been further muddied by bureaucratic demands, posturing and pressure that have no legal basis.
The legal situation
Under 2, The District Plan and the Code of Practice, the Evaluation states:
Central to this Plan Change is the role that the Code of Practice should have in the District Plan in respect of performance standards in land use rules for permitted activities and as a matter for consideration at the time of subdivision.
That is the nub of the problem facing us.
We need to start with a full examination of what the law says about the role of the Code of Practice.
The Evaluation gives us a hint when it states on page 1:
8 The Code of Practice is not a statutory document and it is not mandatory for Council to include it in rules in the District Plan.
The Fire Services Act itself clarifies the situation.
Section 30 of the Fires Service Act deals with: Use of water in mains for fire protection, fire fighting, and hazardous substance emergency purposes.
Note that the s 30 deals solely with water mains and water mains only.
The duties of the National Commander in respect of water mains are set out is s 30(2), and under s 30(3) the National Commander is obliged to publish a Code of Practice specifying standards for water supply volume and pressure for water mains. (My emphasis)
This is the Code of Practice that we are talking about.
The Code of Practice has two essential features:
• It relates only to water mains.
• It is a set of standards. That means figures that relate to supply, volume and pressure of water mains.
• The Code of Practice sets standards. It cannot therefore include suggestions or recommendations.
• The Code of Practice cannot include other matters such as access for fire trucks, hard-stands and turning circles for fire-trucks, other forms of water supply that are not water mains, special couplings, or restrictions on vegetation or trees around houses. I repeat again, it can only relate to water mains.
There is no interface between the Code of Practice in the Fire Service Act andany other legislation which is relevant to local authorities. It stands on its own as a code of standards for nothing more that water mains.
The Fire Service Act was enacted in 1975 and predated the RMA. The RMA makes no reference to the Fire Service Act and the Fire Service Act was not amended in any way to interact with the RMA when that was subsequently enacted.
The Fire Service Act therefore has no relevance in applying the provisions of the RMA.
Likewise, pursuant to s 21(6) of the Fire Service Act “the Minister shall not approve any code of practice or standard … which has the effect of requiring any building to achieve performance criteria additional to or more restrictive than specified in the Building Act 2004 or in the building code”. Consequently the Code of Practice can have no application to the issuing of building consents. (This provision is important when it comes to issuing building consents.)
The Code of Practice, as drafted, goes way beyond the limitations imposed by s 30(3). It goes well beyond setting standards for water mains and includes performance requirements for many extraneous matters relating to firefighting.
It also includes suggestions and recommendations etc which are clearly not standards.
Such extraneous matters are almost certainly ultra vires as the National Commander does not have the statutory power to include such matters in a s 30(3) Code of Practice.
In summary, the Code of Practice is simply a set of standards for water mains and had no relevance to any other matters relating to firefighting and does not impose any requirements in respect of the RMA or the Building Act.
Foreword to the Code
The Foreword to the Code tends to embellish the powers that the NZFS derives from the Code of Practice.
For instance, it states that the Code will form the basis of a partnership between the Fire Service and territorial authorities. The Evaluation appears to accept this:
… Council is supportive of the intent of NZFS’ document that it forms the basis of a partnership between NZFS and territorial authorities and be used by territorial authorities in rules regulating subdivisions in the District Plan. Council and NZFS would then achieve a common objective in respect of providing water supplies for fire fighting purposes to facilitate fire safe communities.
To be blunt, there is no such statutory partnership and there is no mandate for such matters to be included in the Code of Practice.
The KDC should not therefore be offering support for matters that are outside the ambit of a code of practice and which are clearly ultra vires.
It should be noted that including and reciting purported powers in a statutory document does not give them any legal authority if they are outside the scope of powers set down in the legislation.
The fundamental error that was made was for the NZFS to include extra powers in its Code of Practice that were not legally permissible. That error was compounded by the failure of the appropriate authorities to take issue with the situation. And, let it be said, the blind acquiescence of local authorities, like the KDC, encouraged the NZFS to wield its ultra vires powers. In such fertile soil the powers of the NZFS under the Code of Practice grew like the proverbial Topsy (mixed metaphor acknowledged) and have now created a legal mess that will be difficult to resolve
Certainly under s 21 of the Fire Service Act the Fire Service Commission’s role is to seek to achieve co-ordination with territorial authorities along with all other authorities, departments and professions in respect of fire safety. The functions of the Commission in promoting fire safety are set out in s 21(2). They relate to the dissemination of knowledge, education and publicity about fire safety, fire safety campaigns and research.
They do not include anything to do with setting obligatory guidelines or standards that relate to the supply of water for firefighting or the issue of consents under the RMA or in respect of subdivisions.
This misunderstanding of the legal nature of the Code of Practice had created a real legal mess. But there are other issues as well.
The Evaluation states that there is some doubt about the review of the Code of Practice. Whilst it is accepted practice that it is reviewed every five years, that practice had not been followed. The last review was in 2008. In fact there is no statutory basis for the review of the Code.
The Evaluation also highlights the incomplete submission and hearing process for finalising the content of the Code.
More alarming is the fact that, under the RMA, a reference to the Code in the District Plan is treated as a reference to the Code in force at that time. If the Code is replaced or amended then there has to be a costly Plan amendment.
Also of huge concern is the obdurate approach adopted by the NZFS in its submission on Plan Change 2 that it will not budge from its stated capacity of 45,000 litres for dedicated water tanks.
The simple response to that is that the Code of Practice only relates to standards for water mains. It does not and cannot relate to stored water, no matter what the NZFS thinks.
This same arrogance is displayed in the NZFS’ approach to structural fires. The Evaluation points out that under the RMA such fires are not a core concern because they are not natural hazards. But it also goes on to point out that he NZFS “believes it has responsibility to provide for fires fighting services under the legislation”.
It can believe all it likes but the reality is that in law its powers are limited by the Fire Services Act. Its functions are set out in s 21(2).
The KDC has spent a fortune in ratepayers’ money on trying to come to terms with this issue and work out what the Code actually says, how it applies, and what its legal obligations are in respect of the Code. Unless the matter is put to bed once and for all it is going to cost the KDC many millions of dollars on an ongoing basis to keep up to date with the vagaries of the NZFS, with absolutely no benefit to the community.
Ratepayers have had enough. To date the KDC has acted under presumed obligations in respect of the Code which have been contrary to the best interests of ratepayers, from both an amenity and financial point of view, and which have done nothing to improve the firefighting abilities in the district.
Rather that the new half-hearted amendments to the Plan and obscure, vague and meaningless provisions, ratepayers would prefer that all references to the Fire Safety Rules and the NZ Fire Service Code of Practice are omitted or deleted from the District Plan,.
The Code of Practice, as it stands, and the practice surrounding it, is such a mess that local authorities should give it wide berth.
It is bureaucracy gone mad.
The Evaluation notes the different approaches of local authorities throughout the country to this issue. It is ludicrous that each council in the country should be faced with dealing with such a complex issue separately, at huge expense for each individually.
The costs expended by the KDC alone are beyond contemplation. We read the Evaluation with utter amazement at the detailed legal analysis and the costs involved, including the Opus report and others, that one small local authority has been compelled to expend.
Compare that to the costs incurred by the FNDC and its ratepayers who have not spent a penny in complying with unlawful requirements, jumping through consent hoops, shelling our massive sums in consent fess and tank costs, and angsting over consultants’ reports and legal opinions
It is totally unreasonable that small councils such as the KDC should be burdened with such complicated problems that are in reality a national problem. Fire safety is an issue throughout the country and the same problems face every district.
It is now the time for the KDC to assess its clear legal obligations and to ascertain how exactly it serves its people and their safety without blindly following the dictates of the NZFS which have no standing in law.
I seek the following decision from the local authority:
Accordingly, Plan Change 4 should be completely withdrawn and replaced with a new Plan Change that completely deletes any reference to Fire Rules based on the Code of Practice.
This relates both to land use and to subdivision under the RMA for the simple reason that the Code of Practice has no lawful relevance to the RMA.
Clearly the KDC, along withal other local authorities, needs to consider rules in respect of fire safety and how they are to be incorporated into its consenting processes. That includes assessing whether, legally, the Code of Practice has can have any influence on the issuing of building consents.
This submission maintains that whole question of fire safety and the powers of the NZFS should not be a matter for each individual council but a national issue which is the responsibility of central government in association with the NZFS.
A nationwide standard is required and that is the responsibility of central government to put together.
Once the standard is adopted then all local authorities can simply incorporate it into their processes.
The Evaluation considers other sources of water for fighting fires in a non-reticulated area (such as community tanks and portable dams). Such ideas have no place in the District Plan. They are issues that are relevant to every local authority in New Zealand, not just Kaipara. They need to be tackled and considered on a nationwide basis. It seems absurd that Kaipara and other councils should be separately researching these matters at huge individual cost.
This is clearly the role of the NZFS under the Fire Service Act. Rather than its authoritarian and unlawful approach in respect of the Code of Practice, it should be putting its energies into coordinating inquiry and research into alternative methods of providing water for firefighting (and other firefighting issues), as specifically required by the Fire Service Act.
Until the government and the Fire Service get their acts together, local authorities should adopt the approach of the FNDC and ensure that the Fire Service Code of Practice plays no part in its District Plan or in respect of issuing consents under the Building Act.
This is an inordinately complex issue which will be beyond the grasp of the majority of ratepayers.
I am a retired lawyer but have no expertise or experience in respect of the RMA especially in relation to the Fire Service Act.
I have struggled to work out what has happened and why. However, it seems quite clear on a basic examination that the NZFS has overstepped its statutory powers in drafting the Code of Practice and the KDC has been misled or pressured into appeasing the NZFS by incorporating the provisions of an unlawful document into its District Plan.
The cost to the Council and to its ratepayers has been enormous and I dare suggest that the fire safety in the district has not improved one iota despite the massive expenditure.
I am making my submission available to ratepayers in the district, and, if they agree with my submissions, then I am inviting them to file their own separate submission stating that they support my submissions.
In the interests of fairness, and because of the complexity of the issue, I ask that the Council considers and treats each of those submissions as a separate submission.
I do not wish to be heard in support of my submission.
25 Alamar Crescent, Mangawhai Heads
Date: 18 November 2016
Address for service:
PO Box 401005 Mangawhai Heads, Mangawhai 0541
Telephone: 09 431 4723
Email address: email@example.com