Ban on rough sleeping could prompt legal challenge, says lawyer

Lawyer Steven Zindel speaks at the protest at the 1903 Square opposing the Nelson City Council's draft City Amenity Bylaw.
Martin De Ruyter/Stuff

Lawyer Steven Zindel speaks at the protest at the 1903 Square opposing the Nelson City Council's draft City Amenity Bylaw.

Nelson's new bylaw remains too wide and could lead to expensive litigation, a defence lawyer says.

The Nelson City Council adopted its controversial City Amenity Bylaw on Wednesday, introducing a ban on rough sleeping overnight on footpaths and roads in the CBD.

The bylaw stemmed from issues related to long-time Trafalgar St "occupier" Lewis Stanton and while an earlier suggested requirement for permits to protest has gone, a ban on rough sleeping remains.

People must not occupy a road or footpath for two or more continuous hours during the "hours of darkness".

*Nelson's city amenity bylaw passed, banning sleeping rough in CBD

Councillors to make call on controversial bylaw
Bylaw debate causes council chaos
Bylaw to ban overnight sleeping in city
Protest to highlight freedom of speech threats
Council drafts bylaw to deal with Stanton

Lawyer Steven Zindel, who has represented Stanton, said while the council had made amendments to the bylaw he still had concerns.

"It's still potentially very wide and I'm surprised that the council have all voted, apart from one, in favour of something which is just going to lead to more litigation."

"If someone is prosecuted they will look for a defence and one defence will be the uncertainty of the bylaw," he said.

"That can be dealt with either through a judicial review through the High Court or could be dealt with as a defence in the District Court."

Zindel questioned whether it could apply to people in cars, those working as bouncers outside bars and said it was "curious the bylaw applies only to night-time" given retailers' concerns during business hours.

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How it played out

The council had 11 votes in favour, one against, and one absence, and the bylaw will take effect on September 11. 

Councillor Kate Fulton voted against as she didn't support the aspects related to rough sleeping. Cr Matt Lawrey was absent from the vote as he'd left to take part in a general election debate.

The 'permits for protests' clause was replaced by a notification process, to accurately reflect Wellington City Council's approach.

While the rough sleeping ban remained, a new recommendation said the first response by the council in terms of enforcement would be to work with social agencies to try and assist the person in getting support. 

If people refused help, they would need to move themselves to an area not covered by the bylaw - that is, anywhere not a CBD street or road.

Nelson Bays Police Area Commander Mat Arnold-Kelly said he hadn't spoken with the council since the bylaw's passing.

"I need to do an assessment before I go into what role we'd have in enforcing it, but it would be like any other bylaw, like the breach of liquor ban," he said.

"'s a council bylaw so the responsibility for enforcement sits with the council but we would assist if required."

The homelessness issue

Mayor Rachel Reese and acting chief executive David Hammond announced a "mayoral summit" with stakeholders would be held to address homelessness.

Hammond said he'd met with agencies including the Ministry of Social Development, Nelson Marlborough District Health Board, Salvation Army and police, and understood there were around 100 people homeless in Nelson. 

"Broadly we are going to continue to meet as a collective and scope [issues related to homelessness] further, particularly looking at some of the very successful models around New Zealand that are working quite well," Hammond said. 

Voice Nelson's Mary-Ellen O'Connor said they were "delighted" to see the permit to protest clause removed, but still had reservations about other aspects.

"I'm fairly worried about the people on the street being moved on, especially during the hours of darkness if they're forced to retreat into the shadows, where there are no lights," O'Connor said.

"What I know of emergency housing... is that there's very little of it."

She was pleased the "mayoral summit" stakeholder meeting was on the cards, however.

"Better late than never, and good that the message has finally got through about the need to get all players around the table and try and sort out some priorities for Nelson housing."

 - Stuff


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