Summary of commissioners' decision

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.Plan Change 4 to the District Plan

Fire Safety Rules (Land Use)

COMMISSIONERS’ DECISION SUMMARY

Unlawfulness of the code of practice
The Commissioners made no comment on Legal Eagle‘s allegations that the Code of Practice that refers to non-reticulated areas is ultra vires its statutory authority and therefore unlawful. They rightly stated that:

“We are not in a position to decide on existing provisions in the District Plan that are not before us as part of the plan change, or the manner in which they may have been incorporated into the District Plan. We express no view on that matter.”

The question before the Commissioners was how the risk profile was to be addressed and the measures to be adopted. And, ‘are the measures practical and reasonable?”

Fire fighting measures
The Commissioners noted that following pressure from FENZ, many local authorities have made adherence to the voluntary code of practice mandatory. The examined the effect of fire, that it can have a serious impact, but that it was “a very low probability”.

Permitted activities
The Commissioners agreed with submitters and questioned “the Code being part of a permitted activity provision when one cannot be certain as to the status of such an activity without recourse to other parties (Fire and Emergency NZ - FENZ). It cannot be part of a permitted activity if a discretion is needed to be exercised.”

Referring to the code of practice in the District Plan
“In terms of referencing the Code, we see the need for a clearly differentiated approach for areas with water reticulation and those areas without water reticulation. For those areas without water reticulation, reference to the Code is deleted from the plan change provisions, as part of our decisions. For areas with water reticulation, the engineering standards set out the performance criteria.”

“Accordingly, we find reference to, and particularly the use of, the Code as part of a permitted activity provision, and in the rules that apply to permitted activities, in the District Plan to be inappropriate.”

The Commissioners stated that the requirements of the code were excessive and not practicable because:

• “Storage is often in a position on a site where it cannot be accessed during a fire;

• The length of time it takes to reach a building that is on fire;

• The often unsightly nature of water storage tanks on individual sites; and

• The limited risk of fire occurring.”

In summary
“We have accordingly removed any reference to the Code, and/or provisions of it, in the plan change as part of permitted activity status, from the associated rules and from other provisions based on the submissions received. “

We do recommend that Council investigates the provision of water tanks for communal use in the case of fire, at strategic locations in the district and its settlements along with the joint or shared use/availability of water for fire purposes between properties. We accept our recommendations in this respect cannot be all achieved through the current plan change process and would require further investigation by Council.”

Building within 20m of vegetation
This provision was deleted from the urban rules but retained as a warning only in the rural rules

Risk
The Commissioners made an important distinction between the consequence of fire, which is severe, with the probability of fire which is low.

“We accept that if it was demonstrated that there is a high risk of a fire event occurring then there may be some justification for ensuring that the dedicated water storage for firefighting as required by the Code is a requirement. Given Kaipara’s risk profile, the response sought by FENZ is not justified for rural settlements without reticulated water supplies.“

“The option of Council providing strategically located tanks specifically for the storage of water for firefighting purposes, or providing volunteer fire brigades with mobile tankers or portable dams in communities that have a fire service (brigades) but not a reticulated water supply, is a method that was discussed in the section 42A report. We agree with that being an effective option for the Council.”

“We are of the view that FENZ and the Council should explore the possibility of providing an agreed volume of water storage in the form of tanks strategically placed in Mangawhai, and potentially in other communities without reticulated water supplies but with firefighting capability, similar to the agreement that was described to us, that exists between FENZ and the Gisborne District Council.”

Costs and benefits
“From our limited visit to sites at Mangawhai, we observed some situations which are less than desirable from both aesthetic and costs points of view. Those concerns include the number of tanks on individual sites and often the location of tanks in prominent positions. We accept the need for water storage for domestic and other purposes, but we question the need for a specific provision for firefighting purposes, a viewpoint expressed by some submitters.”

Decisions

• “The references to the Code of Practice are deleted from the subdivision provisions. Reference to the Code as a performance standard for subdivision is deleted because it lacks the required certainty for a rule but reference to the Code is otherwise retained given it would be beyond the scope of decisions on the plan change to do otherwise.

• Reference to the Code is also deleted from the rules where it does not provide the certainty for a rule and, in particular, to be able to determine whether the rule is met or not.

• Additional reference has been added to Council working with Fire and Emergency New Zealand (FENZ) in relation to determining the approach to be taken for the provision of water for firefighting purposes.

• The rules that require buildings to be located at least 20m away from vegetation are deleted, but the associated advice notes are retained for the rural areas, and in part for the urban areas.

• “The references to subjective terminology in the rules, for example the use of the term ‘adequate’, are deleted.”