appendix 1 environment court decision - ngati makino heritage

APPENDIX 1

Environment Court Decision - Ngati Makino Heritage

Trust v Bay of Plenty Regional Council 14 November

2014

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APPENDIX 2

Environment Court Decision - Motiti Rohe Moana Trust

v Bay of Plenty Regional Council 14 November 2014

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File Reference:

7.00285

Significance of Decision: Receives Only - No Decisions

Report To: Regional Direction and Delivery Committee

Meeting Date: 09 December 2014

Report From: David Phizacklea, Regional Integrated Planning Manager

District Plans Update

Executive Summary

An update is provided on Regional Council’s involvement in the nine district and city plans in the region. Council is involved in a number of ongoing district plan processes.

Much of the focus has been hearings on the Proposed Rotorua and Whakatāne district plans, along with Environment Court appeal hearings for the Motiti Island Environment Plan and Matakana Island plan change to the Western Bay of Plenty District Plan.

Hearings on the Proposed Rotorua District Plan concluded on 29 August 2014 with Council’s decisions released on 17 November 2014. The decisions cover all parts except transferable development rights (TDRs) with hearings on these held over to next year. Council staff are currently considering whether an appeal is required on the decisions.

The Proposed Whakatāne District Plan hearings started in April and continue through to May 2015. The independent commissioners’ decisions relating to the proposed marina precinct and Piripai Structure Plan area were released in June. Regional Council joined three appeals by Hopper Developments Ltd, Whakatāne Marina Ltd and Royal Forest & Bird Protection Society. Environment Court facilitated mediation occurred on 13 and 14 October and 19 November 2014 with an agreement in principle reached between the parties.

A final Environment Court decision on the Motiti Island Environment Plan was issued on 31 October 2014.An Environment Court hearing for the Matakana Island plan change commenced in November and was held over 10 days with Regional Council presenting its case in support of the plan change and giving ecological, landscape and planning evidence. The hearing was adjourned until March 2015.

Tauranga City Council recently released decisions on their Proposed Plan Changes 1 to 11. Regional Council submitted on two of the changes relating to earthworks and the Wairakei Urban Growth Area. The decisions addressed Regional Council’s concerns.

1 Recommendations

That the Regional Direction and Delivery Committee under its delegated authority:

1 Receives the report, District Plans Update.

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2 Purpose

This report updates the Committee on Regional Council’s involvement with district and city plan changes region-wide. The last update was provided on 15 May 2014.

3 District and City Plans

The Bay of Plenty region contains eight territorial authorities and nine district and city plans. District and city plans must ‘give effect’ to regional and national policy statements and they cannot be ‘inconsistent’ with regional plans. Regional Council provides input into all city and district plan changes in the region to ensure they recognise our regional plans and policy statement.

3.1 Proposed Motiti District Plan

Regional Council originally submitted on the Proposed Motiti Island Environment Plan in 2006. Three Environment Court appeals were lodged to the decisions released in December 2009. Regional Council joined the appeal by Motiti Avocados Limited as a section 274 interested party in March 2010. The substantive Environment Court hearing took place in August 2012. David Phizacklea (Regional Integrated Planning Manager) gave planning evidence on behalf of Regional Council. An interim Environment Court decision was released on 20 December 2012.

The interim decision directed further investigation, mediation and consultation to be undertaken. A subsequent Environment Court hearing was held in December 2013 with the final outstanding appeal matters now limited in scope to: the preamble, access (esplanade reserves), the ecological zone extent and provisions as they relate to Appendix 3 (containing cultural sites, waterways and archaeological sites).

A final Environment Court hearing was held from 17-19 September 2014 with the final decision issued on 31 October 2014 (copy attached as Appendix 1). Regional Council’s concerns have been satisfied with the plan’s contents since early 2014 and our involvement thereafter has primarily been to keep a watching brief and ensure the plans’ contents give recognition to our higher order regional plans and policy statement.

3.1 Proposed Whakatane District Plan

On 28 June 2013 the Proposed Whakatāne District Plan was notified. Regional Council lodged original and further submissions. Hearings commenced in April 2014 and are scheduled to continue through until April 2015. Regional Council staff have presented at most hearings in support of our submissions.

Independent commissioners’ heard submissions to the Whakatāne Marina proposal and Piripai Structure Plan area were heard in May with decisions released in July. Regional Council joined three appeals (as a Section 274 interested party) by Hopper Developments, Whakatāne Marina Society and Royal Forest & Bird Protection Society.

Environment Court assisted mediation was held on 13 and 14 October 2014, with a second round of mediation held on 19 November. It is noted that the Whakatāne District Council is both the respondent and an appellant to these decisions.

3.1.1 Whakatāne Marina Appeals

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At reconvened mediation for the Whakatane marina related appeals a settlement agreement was reached by all parties except Te Rūnanga o Ngāti Awa and Ngāti Hokopu ki Wairaka. In summary the agreement states:

Appeals can be settled by way of consent order from the Environment Court to which all parties will do all things and sign all documents to give effect to the agreement reached in submitting a consent order to the Environment Court in final settlement of this appeal;

The parties acknowledged the views expressed in the ecologists caucus statement concerning the values of the Orini Canal area and agree that any future resource consent process will be notified, robust, and provide the opportunity for full consideration of ecological values including mitigation and off-setting proposals; and

The parties agree that a minor mapping correction is necessary to reflect the factual situation on the ground.

The ‘minor mapping correction’ relates to an area of water identified as land in planning maps.

3.1.2 Hopper Development Appeal (Opihi Structure Plan Area)

Earlier mediation called for the parties’ planners to clarify plan provisions relating to the height of development in the landscape sensitivity and reserve areas. A landscape architect experts’ caucus statement was subsequently prepared and submitted to parties at mediation on the 19 November 2014 to inform discussion about building height provisions. At reconvened mediation a settlement agreement was signed and agreed to that detailed a number of amendments to the plan’s provisions relating to activity status resource consent triggers in relation to the height of buildings and to address matters relating to the criteria applying with the sensitive areas identified within the structure plan area.

The settlement agreement included obligations the parties’ planners caucus on amended planning provisions and report back to parties on 28 November 2014. Whakatāne District Council will report the outcome to the Environment Court by 12 December 2014 with a view to the Court then issuing the signed consent order.

3.2 Proposed Rotorua District Plan

The Proposed Rotorua District Plan was notified on 31 October 2012. Regional Council made both original submission and further submissions focused primarily on: water quality improvements, geothermal resources, matters of national importance and natural hazard risks.

A series of sixteen hearing slots were held between March and August 2014. Regional Council staff presented statements of position on thirteen occasions, in support of our submissions. Rotorua District Council’s decisions were released on Monday 17 November.

Regional Council has a key interest in the Transferrable Development Rights (TDRs) provisions in the proposed Plan. TDRs are a mechanism for enabling land use change to achieve nutrient reductions within the Rotorua lake catchment

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Through the hearings process RDC made a commitment to remove the rules for TDRs from the proposed Plan, and progress these via a plan variation at a later date. Regional Council advocated for this, as a means to better promote an integrated approach with the broader package of regulatory and non-regulatory mechanisms for nutrient reduction currently being developed.

RDC’s position has now changed. They have advised they intend to progress TDRs through the proposed plan, and hold a hearing specifically on TDR’s early next year. There is still some uncertainty regarding timing but it is possible the hearing will be held off until the proposed Regional Water and Land Plan change has been notified for submissions. A TDR discussion document has been prepared by the Lakes Water Quality Society and drafting of the TDR rules is still to occur.

3.3 Western Bay of Plenty District Plan

3.3.1 Variation 2 / Plan Change 46 (Matakana Island)

Variation 2 / Plan Change 46 (Matakana Island) was notified on 28 September 2013. It includes amendments to sections 18 (rural), 5 (natural environment), 6 (landscape) and the planning maps. Decisions were notified on 19 April 2014. Regional Council made submissions generally in support of the plan change. Majority landowners of the forested sand barrier part of the island, Blakely Pacific, Scorpians, TKC and Carrus Corporation, lodged appeals seeking more liberal development and subdivision provisions. Regional Council joined these appeals as a section 274 interested party.

An Environment Court hearing for the Matakana Island Plan Change was held from the 4 – 12 November. Cases for Western Bay of Plenty District Council, Bay of Plenty Regional Council, Heritage New Zealand, Carrus Corporation and tangata whenua parties were heard. Regional Council presented landscape, planning and ecological evidence. TKC’s case was partly heard and Blakely Pacific Ltd unheard when Court adjourned due to lack of time.

Judge Smith directed any additional evidence from counsel be submitted by 24 December 2014 and that a caucus of legal counsel is arranged in January 2015. Legal caucusing is required to clarify matters relating to vegetation clearance in production forestry prior to the reconvened hearing, to be scheduled in March 2015. The Court’s decision is expected shortly thereafter.

3.3.2 Plan Change 45 (Waihī Beach Floodable Areas)

Plan Change 45 was notified in October 2013. Regional Council lodged a submission in November 2013. Council’s decisions were notified on 19 April 2014. The decisions incorporated Regional Council’s substantive engineering requests (on minimum floor levels). No appeals were lodged to the Plan Change.

3.3.3 Future Plan Changes

The plan change relating to Te Puke Floodable Areas is on hold as remodelling work is being carried out. The Esplanades for Access plan change has recently been notified, along with several other technical Plan Changes. BOPRC staff will review the Plan Changes and form a submission if required.

3.4 Tauranga City Plan

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The Tauranga City Plan became operative on the 9 September 2013. Outstanding appeals still unresolved at that time became changes to the Operative Tauranga City Plan. Regional Council’s only outstanding appeal matter related to the identification of Te Tumu Pā (situated at the mouth of the Rangitāiki River) as a Significant Maori Area and Significant Archaeological Site. This matter was heard by the Environment Court in November 2013 with Nassah Steed presenting planning evidence for Regional Council. The Environment Court decision was released on 27 February 2014 confirming the city plan’s identification of Te Tumu Pā as both a Significant Māori Area and Significant Archaeological Site.

As reported in the May 2014 update plan changes 1 to 8 and 11 were notified in October 2013. As reported in the May 2014 update Regional Council submitted on Plan Changes 5 (Urban Growth Areas) and 11 (Earthworks) and further submissions were lodged Plan Change 2 (Wairakei Urban Growth Area) and Plan Change 11. Decisions on Plan Changes 5 and 11 have since been released and are generally consistent with Regional Councils submissions. Consequently no appeals are considered necessary.

A suite of 11 new city plan changes (12 - 22) are anticipated to be notified for public submission in late January/ early February 2015. Of these pending changes the following are potentially of interest to Regional Council:

Plan Change 12 – Transport Network: new criteria for vehicle access onto the Strategic Roading Network, and amending the road hierarchy to be consistent with the NZTA ‘One Road Network Classification’;

Plan Change 19 – Structures in the Coastal Erosion Risk Zone (CERZ): currently new structures are prohibited in the CERZ within the Coastal Hazard Erosion Plan Area (CHEPA). However there’s an issue where a cantilevered structure (e.g. deck or balcony) may be technically within the CERZ but is not physically located in the CERZ at ground level. City Council staff have indicated this Plan Change may be placed on hold until the Proposed Regional Coastal Environment Plan process is completed.

Plan Change 18 – Tauriko Industry Zone: amendments to sequencing and staging requirements, visual amenity buffers and extending the location of the Bulky Goods Scheduled Site (whilst retaining Gross Floor Area Limit).

3.5 Ōpōtiki District Plan

Ōpōtiki District Council have recently commenced a full district plan review. Initial staff level discussions occurred on 17 October 2014 and a second meeting is scheduled for 12 December 2014. Early discussions have concentrated on identifying resource management issues to consider during the district plan review and gaps identified with the existing operative district plan. Staff are using the opportunity for the dual purpose of consulting on the implementation of the Operative Regional Policy Statement.

Nassah Steed Programme Leader (Statutory Policy) for Regional Integrated Planning Manager

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1 December 2014 Click here to enter text.

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APPENDIX 1

Environment Court Decision - Motiti Island

Environment Plan 31 October 2014

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BEFORE THE ENVIRONMENT COURT

Decision No. [2014] NZEnvC 22 g

IN THE MATTER of appeals pursuant to Clause 14(1) of the

BETWEEN

AND

First Schedule of the Resource

Management Act 1991 (the Act)

G&SHOETE

(ENV-201O-AKL-000119)

NHAUA

(ENV-2010-AKL-000120)

MOTITI AVOCADOS LIMITED

(ENV-201 O-AKL-OOO 124)

Appellants

MINISTER OF LOCAL

GOVERNMENT

Respondent

First Hearing: Mt Maunganui, 5 - 6 December 2013

Court: Judge J A Smith sitting alone, by consent of the parties

Issue: Subdivision issues

Second Hearing: Tauranga, 17 - 19 September 2014

Court: Environment Judge J A Smith

Issue:

Appearances:

Deputy Environment Commissioner C M Blom

Balance of Plan wording

Ms S M Hoete and Mr G Hoete for themselves

Mr R Gear for Te Runanga 0 Ngati Awa - Section 274 party

(NgatiAwa)

Mr N Swallow for Motiti Avocados Ltd (Motiti Avocados)

(Appellant)

Ms K M Barry-Piceno for Mr V Wills - Section 274 party (Mr

Wills)

Mr J M Pou for Motiti Rohe Moana Tmst - Section 274 party

(Rohe Moana Trust)

Hoete & Ors v Minister of Local Government (Final Decision & Directions).doc (rp)

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Date:

2

Mr U Matahaere and Mr H Sayers for the Motiti Sub-Committee

of Motiti Marae - Section 274 party (Motiti Marae)

Ms M H Hill for the Bay of Plenty Regional Council - Section

274 party (the Regional Council)

Mr K G Stephen and Ms J S Andrew for Minister of Local

Government ( the Minister)

31 October 2014

FINAL DECISION AND DIRECTIONS OF THE ENVIRONMENT COURT

A. We confirm the provisions of the Plan as annexed as A, C, E and F with

the changes required in this decision.

B. We direct:

1. The Plan is to be amended by the removal of cluster Wills 2 Area

C.

2. The Preamble of Motiti Rohe Moana Trust (Rohe Moana Trust) is

to be adopted with the following wording added at the end in

English under both issues:

This Motiti Island Environment Plan does not reflect issues of mana whenua or cultural relationship to the Island.

3. Rule 3.4.15(c)(ii)(2) is to apply to new shelter belts or artificial

shelter within Area B (not just south side).

4. The extent of the Ridge in Area B is to be widened to 10 metres.

5. Any other minor amendment required by this decision.

The Minister is to:

1. Circulate an updated Plan within 10 working days incorporating

these alterations.

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2. Parties are to provide comments back to the Minister within a

further 10 working days.

3. The Minister is to provide its updated Plan, with parties'

comments and its response, to the Court within an additional 10

working days.

The Court will then finalise and approve the Plan

D. Tentatively, we are of the view that this is not a case on which costs are

appropriate.

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INTRODUCTION

Titiro whakamuri kia totika ai te haere whakamua

To reveal the past and lay the pathway into the future

[1] This is the final decision on a Plan for Motiti Island (Motiti). It builds upon

earlier decisions and directions as follows:

[a] Interim Decision and Directions of the Environment Court dated

20th December 2012;1

[b] High Court Decision dated 31 st May 2013;2

[c] Hearing by Judge Smith alone by consent of the parties as to

subdivision issues 5th and 6th December 2013. This dealt with

subdivision matters on the island, including Lot size, and subdivisional

rules;

[ d] The Directions issued as a result of the December hearing dated 19th

December 2013. These matters dealt with the subdivision matters on

the island including lot size and subdivisional rules; and

[ e] The hearing of 17-19 September 2014 to settle the final form of the

plan and remaining issues.

BACKGROUND

[2] This Decision needs to be read together with the original Interim Decision and

the High Court Decision, which sets out the background to the Resource Management

Act (the Act) for the island (the Plan). As a result of the High Court Decision, the

Court held a further pre-hearing conference at which the remaining issues were

addressed.

Throughout the course of this hearing, and particularly after the initial

I AU,.,V~,~~VJ", the Court has been at pains to:

S Hoete & Ors v Minister of Local Government, [2012] NZEnv 282 voc'aal1S Limited v Minister of Local Government, [2013] NZHC 1268, Andrew J

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[a] Attempt to have the parties deal constructively with the Issues

surrounding a plan for Motiti; and

[b] Develop a Plan that is appropriate for the unique character of Motiti.

[4] The initial hearing of2012 confirmed the need for an Island Plan, and we do

not propose to reiterate that background. Since that time, enormous effort has been

expended; firstly on the question, If there is to be a Resource Management Plan for

Motiti, what form should it take?, and thereafter in delivering the document (now

entitled the Motiti Island Environmental Management Plan; MIEMP or the Plan).

[5] Motiti Avocados appealed several aspects of the Interim Decision of the

Court, and several matters were subsequently remitted to the Court for correction.

Given that the Court made no final decisions on the content of the Plan, the Court was

particularly anxious to ensure that the Plan properly encapsulated the concerns of both

the Environment Court and as modified by the High Court.

[6] It would also be fair to say that the Court envisaged an attempt, at least, to see

if there could be an incorporation of the Hapu Management Plan within the resource

management plan for Motiti, and had hoped that a collaborative approach might be

adopted in the resolution of the matter. Notwithstanding many attempts to have a

collaborative approach, in the end the Court was faced with complaints of lack of

consultation by the Minister, and lack of cooperation by various parties. Although

much of the Plan was agreed, Mr and Ms Hoete still held concems as to the concept

of the Plan itself, which we will discuss in due course, and Mr Matahaere had filed

evidence raising concems also as to the process and lack of consultation.

Unfortunately, Mr Matahaere was not well enough to attend much of the hearing.

The Personalities

[7] Since these appeals were filed in 2010, a considerable amount of time and

effort has been put into them by a number of parties, and we wish to acknowledge that

at this stage. Mr Frentz was responsible for the drafting of the Plan and has been

involved in the various iterations of it, in consultation with many parties. He has also

... sought to respond to the concems of the Environment Court and the High Court by

//cf~\\modifying the Plan. Almost all criticisms of the Plan have been addressed in some ,1 "\

~ay by Mr Frentz seeking to either incorporate the views of the parties, or modify the C) 1 ;~~lan. We recognise the hard work that Mr Frentz has put into this Plan and have not

~"'e" fj

"';;Jbeen able to detect in any of the documents provided, or the evidence given, any " /' Page 219 of 274

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desire to evade resolution of the issues, or ignore the views of various parties. It is

unfortunate that the breakdown in communications between the parties has not

enabled all of the parties to take full benefit from Mr Frentz's expertise.

[8] Mr Hoete and his daughter have both been present at every hearing the Court

has held and have, in a polite and respectful way, advanced their views strongly. The

Court observes that they have advanced clear and concise arguments for their

position, and out of a real concern for the future of Motiti.

[9] Mr Matahaere, a respected kaumatua on the island, has held firm views on the

subject of whether there should be a Plan, and the lack of process. Nevertheless, he

has advanced those views patiently and respectfully towards the Court and other

parties.

[10] Motiti Avocados, similarly, has a very strong view of these proceedings, and

what the contents of the Plan should be. Mr Pepper for the company has been present

throughout the hearing and has maintained a relationship with all parties through the

course of the hearing.

[11] We recognise the frustration ofMr Wills and others with both the length of the

process and its complexity. Nevertheless, the Court has attempted, wherever possible,

to avoid unnecessary hearings or delays. We have recognised that this process has

taken some time, and that the Minister has been involved in a significantly longer

process than they would have envisaged at the commencement.

[12] There have been allegations from both sides as to the procedure adopted and

cooperation, or lack of, at various points. It is not our intention to enter into that

debate between the parties, but we now recognise that this matter needs finality.

Notwithstanding that we would have preferred to see a Plan more integrated with the

Hapu Management Plan, we recognise that this has not been accomplished and we

must finalise the Plan. We also recognise that this has not been an easy process for

the tangata whenua of Motiti, but nor has it been simple for the General Title owners

or the Minister.

[13] The Plan has now been the subject of three substantive hearings, and

augmented by intense mediation and Court direction, as well as processes initiated by

the parties themselves. Although not going as far as this COUli had hoped, the Plan

now integrates elements of the Island's Hapu Management Plan. Consequently, the

MIEMP now integrates provisions relating to (amongst other matters) emergency

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access and lifelines, as well as a comprehensive cultural heritage and archaeological

inventory (completed since the last hearing). The MIEMP and the Hapu Management

Plan are not, of course, mutually exclusive and we return to this later.

OUTSTANDING ISSUES

[14] In December 2013 Judge Smith alone, with the consent of the parties, heard

the issues of:

[ a] Development intensity;

[b] The location and extent of cluster areas; and

[c] The general extent of Ecological Areas;

[15] Rather than issuing a Decision at the time, on 19 December 2013, the Court

issued a Minute indicating the need to finalise Schedule 3 and matters pertaining to

Maungaroa Ridge. It also directed the Minister consider the appropriate wording for

aircraft fields; reasons for esplanade reserves; and the access provisions to show the

reasons for the lack of access on the island. The Preamble had not been resolved in

December 2013, and was still not resolved by the time of this latest hearing. The

Court considered it had sufficient evidence to consider the cluster development and

intensity issues, and given that the parties had not agreed on that in the meantime, a

Decision is still required on that. Similarly, section 32 evidence was produced by Mr

Frentz and Mr Whittaker, and the Court only allowed further submissions rather than

further evidence on this issue. For the hearing in September 2014, in addition to the

issues already identified the following issues remained at large:

[a] Preamble to the Plan;

[b] Explanations clarifying certain matters such as the identification of

airfields, why there are to be no Esplanade Reserves or provision of

public infrastructure or public access;

[c] Site W21;

[d] Provisions relating to Maungaroa Ridge;

[ e ] Schedule 3; and Page 221 of 274

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[f] Internal access issues.

[16] At the commencement of the hearing itself, Schedule 3 and Site W21 had been

resolved. The parties seem to have agreed as to the provisions on Esplanade

Reserves, but there were still concerns about airfields, provisions for public

infrastmcture, and internal access.

[17] In addition to consideration of matters under Sections 32, 29A and Part 2,

there were several broader issues of concern the Court needs to consider:

[ a] Continuing complaints as to the process and engagement by the

Minister through the process; and

[b] The issues expressed by Mr Hoete as set out in his appeal document:

[i] A District Plan that recognises and provides for the relationship

of Nga Hapu 0 te Moutere 0 Motiti with their ancestral lands,

water, springs, sites, waahi tapu and other taonga (all

submitters);

[ii] Integrated management of resources recognising and providing

for the following principles:

1. Tino Rangitiratanga

2. Te Kawanatanga

3. Te Manaakitanga

4. Te Whanaungatanga

5. Te Kotahitangi.

[18] Judge Smith will deal shortly with the development intensity cluster areas and

general ecological areas. The matter of section 32 will be dealt with in respect of both

that aspect and the final aspect later in the Decision. We have combined these

decisions for the sake of clarity for the pruiies, and no party raised any objection to

such a process. Moreover, the Plan as proposed by the Minister at the commencement

of the Hearing on 17 September 2014 is annexed hereto as A. This incorporates the Page 222 of 274

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Minister's proposals in respect of the cluster matters together with those in respect of

the matters the subject of the September hearing. It was amended subsequent to the

hearing and includes all modifications accepted during the hearing.

Preliminary Issue - scope of evidence

[19] This related to a brief of evidence from Mr Lawrence, and in particular his

discussion of landing areas, a view shaft from Karioi track back to the mainland,

views from the Maungaroa track, and proposed changes relating to restoration and

remediation. Motiti Avocados, Mr Wills and the Bay of Plenty Regional Council

contended that these introduced new issues beyond the scope of the hearing.

[20] After hearing from the parties, the Court concluded that it should proceed with

the substantive hearing on the basis that it reserved to those parties the right to seek to

call further evidence if necessary. A minute was issued to this effect, which is

annexed hereto as Annexure B.

[21] Some progress with outstanding issues was made during the course of the

hearing. The Minister provided some new material to be included within the Plan and

this is annexed as Annexure C. The Minister has amended the Plan but we do not

attach this given that it has not been subject to comment. Except where discussed, we

assume these changes will give better effect to the Plan.

JUDGE ALONE MATTERS

[22] As noted, the Court made Directions on 19 December 2013 in respect of

issues. The matters of development intensity, cluster areas, and the extent of

Ecological Areas, together with Sections 32 and 290A as it affects those matters, is to

be considered before turning to consideration of Part 2. The Court acknowledges, of

course, that this cannot be a full assessment as the Court as a whole will need to

assess all matters of the Plan to reach a final conclusion.

ISSUES - Judge Smith December 2013

Development Intensity

\[23] The development intensity issue appears to have been addressed in three , r;;specific ways: " 1

I

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[a] By the use of development clusters. This cluster requirement also

reqUIres Issues of site suitability under section 1, landscape and

integration;

[b] By requiring detailed information on rainfall, roof area catchment,

intended occupancy, contingency and backup storage solutions;

building water management design solutions and any residual water

take requirement; and

[ c ] Density yield.

[24] The Court suggested that its preference is for a one-lot-per-15 hectares average

over the whole island. Mr Whittaker, the planning witness for Motiti Orchards,

prepared a comparison of dwelling unit equivalent-yields (DUEs) between 10

hectares and 15 hectares. This was annexed as Attachment 1 to the Section 32 Report

and we duplicate it here as Annexure D. Essentially the Environment Court Decision

identified 93 existing parcels that would qualify for the construction of a home.

[25] Mr Whittaker does not dispute this, but notes that he calculates up to 91

existing parcels. The Court calculated 22 additional DUEs and 7 existing worker

DUEs to a total of 122. Again, Mr Whittaker comments on this but does not dispute

the calculation for the purpose of the table. That would yield a total of 122 DUEs.

Mr Whittaker then goes on to examine the lot sizes and identifies that using 15

hectares per lot, an additional 11 lots would be created at 15 hectares and 22 at 10

hectares. The two large lots, being Lot 1 DP78765 at 85 hectares is the V Wills lot.

Lot 1, 119 hectares, is Motiti Orchard's. This enables an increase from 4 to 7 in

respect of Lot 1, DP78765 i.e. increase of3. On Lot 1 DP78765 an increase from 6 -

10 (increase of 4). The increase for all the other properties is to one extra DUE. This

is less than the figure suggested by the Court. Mr Whittaker and Mr Frentz suggest

that a 10 hectare minimum size for both the donor and recipient lot is appropriate.

[26] What appears to have occurred is that Mr Whittaker has assumed that the

existing utilisation of lots does not affect the calculation of DUEs into the future.

This may have caused the confusion with the understanding of paragraphs [179] and

[183] of the Decision. In its calculation, the Court has allowed one house per lot. It

\p.as then incorporated, as part of the calculation for DUEs, the extra houses which are

(Already provided on some lots, including the workers' accommodation. :".~ 1 "<I /

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[27] Assuming that further subdivision rights exist on every lot of an appropriate

SIze, ie ignoring existing development, I have also examined whether or not 12

hectares yields a significantly different figure. It would mean that, in respect of

Motiti Al block there would be no further development right, but lot 4 DPS78765 and

lot 2 DP414360 would remain entitled to a further 1 DUE each. Lot 1 DPS787 would

be entitled to a further 6 DUE and lot 3 would remain unchanged on 2. In respect of

lot 1 DP78765, this would be one less than if it was 10 hectares. The biggest change

would be in lot 1 DP414360, which would drop from 10 entitlement to 8, and a total

of 115 additional DUEs on the island. Put another way, a 15 hectare minimum lot

size would give 11 additional DUEs on Motiti; 12 hectares an additional 18; and 10

hectares an additional 22 DUEs.

[28] When I look at the rationale of the Section 32 Report, it relies not only upon

the density rule, but upon controls over landscape through the use of clustering and

other mechanisms, and over water and wastewater through detailed technical

information requirements. I note that the analysis under section 32 examines the

benefits and costs of these matters. The major concern of the Court beyond cultural

issues relate to the capacity of the island to absorb further development. The

clustering attempts to ensure that this is constrained within a very limited area, with

appropriate ecological and other steps are taken.

[29] So far as the question of effect upon the water table and water balance on the

island, these matters would need to be specifically addressed by any subdivision

application. In examining, under Section 32 of the Act, what is better, I recognise that

the additional homes do have an ability to introduce conflict between residential and

rural activities on the island. They also have the potential to exacerbate cultural

differences, given that new owners may not have a detailed understanding of the

history or cultural dimensions to Motiti.

[30] We are discussing potentially an additional 11 homes over a 15 hectare rule,

focussed in particular areas. I keep in mind that there are already a significant number

of lots on this island, which each permit construction of a home. The yield from that

would be significantly higher than from an additional 22 houses. Most of the actual

potential for new homes is focussed in the northern area of the island given the

existing smaller lot sizes, many of which do not have houses upon them.

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Conclusion as to yield

[31] As has been identified, the differences between the various calculation figures

yield a difference of some 11 lots. I have concluded that that is only a small

proportion of the total number of lots that could be realised on this island on the basis

of one dwelling per lot. In practical terms, the existing intensity of development is

highest on the northern part of the island, and a number of existing sections could be

developed without any subdivision. Similarly, the lots in Motiti B Block could

sustain another five or six houses on those lots that currently have no dwellings.

Therefore, the real question is the appropriate additional intensity that could be

allowed within the Motiti A Blocks. In the end I have concluded that the ratio of 1 lot

per 10 hectares DUE is an appropriate approach, keeping in mind the other controls

on land development and the requirement for cluster development. The issue really

turns upon where these clusters should be placed.

Location and Extent of Cluster Areas

[32] In principle, the concept of cluster areas is supported by the parties and the

Minister now proposes five cluster areas:

[ a] As shown on the annexed map marked Annexure E, Karioi Area A is

focussed around the Karioi Pa, and the housing associated with it. It

covers much of the existing housing, although some parties have

criticised the exclusion of a number of houses closer to the Pa site. I

will discuss that issue shortly.

The other cluster areas are Wills 1 Area B, close to the home bay and

existing dwellings on the Wills property. In respect of this area, no

party raised any adverse comment and it appears appropriate that that

is an area in which further development should be permitted.

Wills 2 Area C is an area between the cliffs of Te Hurihi Point and the

restored Ecological Area just south of the airfield take-off and landing

point. It is a very small area, as can be seen, and access is difficult.

One assumes it would have to be accessed through the Ecological Area

at the bottom of the airfield. I note that the landing site access road is

incised deeply into the earth at the point where it could access this site.

Page 226 of 274

Karioi

13

[b] Motiti Avocados 1 Area D is the area around the existing buildings and

workers' accommodation. Again, no party raised any query in respect

of this, and this is an appropriate area for cluster development.

Motiti Avocados 2 Area E is an area just to the north of Wairere Bay

and close to the access points both in Wairere Bay and on the western

coast of the island operated by Motiti Avocados. It is back from the

coastal edge and relatively protected. It is likely to be the area along

with Wills 1 Area B in which most development will occur. Again,

there was no specific concerns addressed to this area, and it does not

appear to me that it would involve limiting or affecting any questions

of access to cultural sites.

Both Wills 1 Area Band Motiti Avocados 2 Area E are closest to

access points to the island by water, and are also reasonably well

connected to a relevant air field. They are unlikely to create any visual

intrusion and are well away from key features such as Mangaroa

Ridge. Of course, any application for consent will require detailed

information as to how ecological restoration and the like would occur.

[c] We are left with two potential cluster areas of concern. These are

Karioi Area A and Wills 2 Area C. I acknowledge that the Section 32

Report and the Court's decision reflect the reasons for this approach.

We are referred to Objectives 2.1.1, Policies 2.1.1.1 and 2.1.1.2.

Reference can also be made to Policy 2.1.1.4, 2.1.1.5 and 3.5.1.2.

However, these objectives and policies are generic. While giving a

basis for clustering as an approach, they do not specify sites beyond the

need for water and air access. Mr Whittaker's planning evidence

addressed the issues surrounding the Motiti Avocados site, but did not

discuss either Karioi or the Wills clusters.

[33] Mr Frentz discusses the Karioi cluster development area as follows:

The Karioi cluster development area has been identified as being a papakainga area within which there is no limit as to intensity. Development within Karioi for papakainga is also a controlled activity. Mr Matahaere was concerned that certain properties with houses on them were omitted from the Karioi cluster area, while other areas were included within it.

Page 227 of 274

14

[34] There was criticism about the Karioi cluster, that it potentially omitted several

properties on Block D and Block B that are already constructed. The cluster follows

whole titles and the houses not included are parts of larger titles. The intention is to

enable the existing homes within the cluster, and to encourage the placement of new

homes into this area.

[35] There has been some criticism of the name, as it relates to the Pa. No

alternative name was suggested to us, and in those circumstances I am unable to

suggest an improvement. Although the cluster itself need not be named it is based

around that area, and of course does not need to be specifically identified by name. I

note the other clusters are not named.

[36] In viewing the cluster area, the intent appears to be to cover the smaller lots

based around the Pa; those lots that have been excluded are larger lots than those on

which development has already occurred. I have concluded that the approach of

Mr Frentz is appropriate in this case, and that it is difficult to begin drawing cluster

area lines through parts of titles. The reason for selection of these titles is largely

because they are small lots grouped around the existing housing, and I have concluded

that that is an appropriate approach.

[37] In terms of the appropriate test under Section 32 of the Act, it is clear that the

cluster development approach is the preferred alternative to ensure that density on the

island is focussed around existing development and is appropriate. It is clear on

Motiti that there is a need to provide for the islanders to promote their iwi and hapu

affiliations by grouping housing around the existing infrastructure, particularly the

Pas. The provision for papakainga, and the lack of any limit of intensity within that

area, is an appropriate approach. It balances the lack of infrastructure on Motiti with

the desire to ensure that the resident tangata whenua can maintain an appropriate

lifestyle and provide for future requirements. Nothing within this limits other titles,

which are entitled to one house pel' lot, and this would already lead to a significant

increase in the number of houses on Motiti.

[38] The Karioi cluster. would encourage clustering around the existing

development, and may enable a common approach to issues such as wastewater, water

supply and access to beaches and airfields. I note in particular that Wairanaki Bay is

accessible by the Maori roadway from the cluster, and that the Maori roadway would

also give access to the Hoete Airfield and the Wills Airfield, currently the main air

access point. In particular it reflects:

Page 228 of 274

15

[a] Marae-based community activity - Policy 2.1.1.1(b);

[b] Clustered housing typified by the Karioi and Wills homestead blocks -

Policy 2.1.1.1(c); and

[c] Papakainga development - Policy 2.1.1.10).

[39] I conclude that the existing form of the cluster development at Karioi is the

most appropriate in terms of the settled provisions of the Plan.

Wills 2 Area C

[40] I was also particularly concerned about a potential cluster at the end of the

main airfield (Wills 2 Area C) above an area consented for an accessway to the water

between an improved stream and the cliff face. I have tried to understand how this

area would be accessed without compromising the existing rehabilitated water area or

the access to the sea the subject of the earlier resource consent. I also wonder at the

safety of this area given its proximity to the take-off area for the airfield.

[41] Nevertheless, I recognise that the area already has a number of large

pohutakawas, and only a small portion of the area was identified for the construction

of homes. Even then it would have to obtain approval, having regard to the other

factors I have identified.

[42] This is a small area and I assume would only be suitable for one house. It is

close to an important Pa site (Huruhi Pa) and to the as-yet-undeveloped accessway to

Te Huruhi Bay. Any access to the site would require development across the

ecological area. In his commentary, Mr Frentz suggests that two additional dwellings

could be located on the Wills property, and it seems to be intended that one is located

within Area C and one within Area B.

[43] I have concluded that Wills 2 Area C IS not appropriate for cluster

development for the following reasons:

[ a] The site is small and seems to be appropriate for only one dwelling;

[b] It is proximate to an important Pa site and ecological area;

Page 229 of 274

16

[ c ] It is not proximate to existing housing and access to it is likely to

compromise the ecological zones and/or require significant earthworks;

and

[ d] No detailed evaluation of this site is provided in terms of the evidence

of Mr Whittaker or Mr Frentz, and there is no clear reasoning for its

inclusion.

[44] When examining this area under Section 32, significant issues arise in relation

to costs and benefits. Given the importance of the ecological zones, and the margins

and cultural sites on the island, the concept of a stand-alone area of this size is

difficult to follow. There appears more than sufficient room on the Wills 1 Area B to

provide for further cluster housing, including at DUE intensity of IOha per lot. The

reason for its inclusion, in the same title but in a further position, is difficult to follow.

[45] I have concluded that the costs, in cultural, ecological and access terms, are

simply too great in respect of this area, and it does not serve the objective of the Plan,

which is to only allow cluster development (i.e. buildings to be grouped together with

other buildings). It is in fact a greenfields area, but with only one site. As such,

issues of sporadic development and Policy 6(1)( c) of the NZCPS arise.

[46] This is to be contrasted with the Wills 1 Area B, which is proximate not only

to the existing farm development on the Wills property, but other buildings, houses

and access points. We also note that the Wills 2 Area C site in this case would be

relatively visible to all visitors to the island who approach by air, given that the Wills

airfield is the main access point.

[47] Although it might be argued that the Motiti Avocados Area B is in a

greenfields area also, that does not have the constraints in respect of ecological areas

or in respect of multi-point access to water.

Conclusion as to Cluster Areas

[48] Accordingly, we confirm all of the cluster areas, with the exception of Wills 2

Area C which is to be deleted. It appears that sufficient area to accommodate the

development potential on the Wills property is already included within Area B.

Page 230 of 274

17

THE GENERAL EXTENT OF ECOLOGICAL AREAS

[49] This was an issue left open at the earlier hearing that was not addressed in any

particular detail during the later hearing. The two zone approach was not contested by

the parties and follows from the Court's original decision. It includes not only the

coastal fringe, but most of the ephemeral waterways and water courses within Motiti.

It is correct that Ms Absolum, in her mapping, suggested extensive ecological areas

within Motiti. However, the major difference between her map and that of the Plan is

the issue of the Maungaroa Ridge, which was the subject of the later hearing. In the

end, the question of the extent of these ecological areas is a matter on which we rely

on the expertise of the parties.

[50] Mr Frentz notes that the definition includes the extension of the zone to

include cultural heritage and archaeological sites identified in the MIEMP. Almost all

sites on Motiti are included within these zones, and in my view this reinforces the

appropriateness of the dual-zoning on the island and its benefits under s32 of the Act.

The rules do permit existing access and services to cross or remain within the zone,

and includes access tracks, water take, storage and pipelines. Nevertheless, generally

the Plan recognises the importance of these areas and provides limits on development

within them.

[51] Given that the list of cultural and significant sites is amongst the most

comprehensive I have come across in any district plan, I have concluded that there is

an appropriate provision by way of this zoning, especially when taken in combination

with the provisions for the cultural sites of significance. I have concluded that the

approach of the Plan to identification of ecological areas is appropriate. I have also

concluded that separation of the ecological areas from Maungaroa Ridge is an

appropriate approach. That, however, is a matter that is identified more directly by

the Court in its consideration of the Maungaroa Ridge provisions.

[52] In reaching that conclusion I take into account that the sites of significance

have been resolved, and are now included within the Plan. When one looks at the

way in which various provisions inter-relate, I conclude that there is an appropriate

approach to sites of significance, ecological factors, and rural uses on the island.

Page 231 of 274

18

SCHEDULE 3 in December 2013

[53] It is clear that the parties have undertaken a substantial amount of work in

completing Schedule 3 to the MIEMP. 3 The Schedule integrates and develops

infOlmation contained within the Hapu Management Plan.

[54] Two site specific issues with the Schedule were raised at the subsequent

hearing, which we address later. However, notwithstanding concerns subsequently

raised by Mr and Ms Hoete, and Mr Matahaere regarding process (which we

acknowledge and also discuss later), a comprehensive approach to developing the

Schedule has nonetheless been adopted. That approach has been to include all

cultural heritage and archaeological sites, including those that fall outside the

jurisdictional boundaries of the District. This is relatively unusual in the context of a

district's regulatory or planning framework, but one that is appropriate to this context

and the context of Motiti. To address matters of scope, the Minister has annotated

sites that fall outside the jurisdiction of the Plan for information only, and the Plan

clearly establishes that there is no regulatory function associated with those sites

under the MIEMP.

ISSUES THE SUBJECT OF THE FINAL HEARING - September 2014

[55] We have already identified these issues as:

[ a] Preamble to the Plan;

[b] Explanations clarifying matters such as identification, airfields, why

there are no esplanade reserves or provision for infrastructure or public

access;

[ c ] Schedule 3;

[d] Internal access on Motiti; and

[ e ] Maungaroa.

Page 232 of 274

19

PLAN RELATED ISSUES

Preamble

[56] Two different versions of the Maori Preamble were presented. The Court's

clear preference had been that this matter be resolved between tangata whenua. The

difference between the parties appears to relate to what degree of description should

occur in respect of various iwi and hapu having an interest in Motiti. The parties

proposed to the Court that they would seek to resolve the matter and file a further

memorandum.

[57] Subsequent memoranda filed by Ngati Awa and Rohe Moana Trust make it

clear that agreement cannot be reached. Ngati Awa acknowledge that the whakatauki

proposed by the Rohe Moana Trust could be included.

[58] We have looked at the Plan with both Preambles included. The concern of

Rohe Moana Trust is that inclusion of the N gati A wa Preamble asserts the relationship

of some hapu and iwi with Motiti to the exclusion of others (Maumoana, Ngai Te Ahi

Hapu, and Te Arawa are examples given).

[59] We have concluded that the purpose of the Preamble is not to assert or

establish cultural mana whenua or relationships. It is to set the Plan in context. The

Hapu Management Plan is much more detailed on the history and cultural

relationships to Motiti.

[60] We have concluded that the purpose ofthe Act is better achieved by the Rohe

Moana Trust's Preamble. We confirm the final version to be included in the Plan as

set out by the Rohe Moana Trust. We direct that at the end of the Preamble the

following words are to be added in English at the end:


[61] Accordingly, the proposed Preamble ofNgati Awa is to be deleted.

Explanations clarifying certain matters

[62] In the December 2013 Directions of the Court, a range of matters were

identified that would assist the understanding of the MIEMP. These included the

identification of airfields, why there are to be no Esplanade Reserves, or provision of

Page 233 of 274

20

public infrastructure or public access. The Minister has since responded to this within

the Explanation and Principal Reasons to Section 1.4 of the MIEMp4, and specifically

subsection (d) - Transportation and Access.

[63] In the course of the hearing a minor modification to the proposed text was

agreed between the planners, but no other issues were raised by the parties. These

changes help clarifY the overall approach to transportation and access, and usefully

assist in the stitching together of other minor changes put to and agreed by all the

planners over the course of the hearing. These changes, and others, are included in

Annexure C and we proceed on the basis that these minor changes are to be included

in the final wording.

SCHEDULE 3

[64] Two of the outstanding issues associated with the substance of the Schedule

itself related to site W21 and Maungaroa.

[65] Site W21 is a small spring located to the south of Motiti near the approach to

both the Motiti Avocados south-western barge landing areas.5 Accordingly, Motiti

Avocados was seeking greater clarity of the extent of the spring and site of cultural

significance.

[66] Changes to the MIEMP were included within the hearing version of the Plan,

which now includes a more detailed description and delineation of the site. The

Minister, the Regional Council, and Motiti Avocados told us that this now

appropriately resolves their concerns in this regard.

[67] The issue of Maungaroa is rather more complex and considered in more detail

below. However, one of the earlier issues was that Maungaroa had not been included

within Schedule 3. There was some discussion as to the most appropriate means of

providing for the feature. However, the MIEMP has since been amended to now

include Maungaroa, and to also include the cultural assessment completed by Mr

Kawe. This is now shown in three parts, A and C being the western and eastern

sections not subject to Plan Rules. Area B is intended to be subject to rules, but only

Page 234 of 274

21

as to Sm each side of the centre line of the track, whereas the feature in Schedule 3

was to be ISm each side.

[68] For reasons we go into later we have concluded Area B should be co-extensive

in Schedule 3 and Rule 3.1S at ISm each side of the centre line of the track.

[69] A further issue arising ofNga Whenua Topu/Reserves was also identified by

Mr Matahaere, who was concerned a number of reserves established by the Maori

Land Court had not been included in the Schedule:

[a] 1867 Motiti North G - Wairanaki Landing Reserve;

[b] 1894 Motiti N oth F - Oromai Urupa / Cemetery;

[ c ] 1909 Motiti North B20 - Te Ruakopiha Maori Reservation;

[ d] 1914 Motiti North E 10 - Karioi Marae Reservation;

[e] 1920 Motiti North B21 - Church Reserve;

[f] 1976 Motiti North Bl - School Reserve; and

[g] 1997 Taumahi Island Maori Reservation.

[70] We also heard that all the Maori Reserves listed have already been included in

the Schedule. We· are therefore given to understand that no other issues remain with

the extent or wording of the Schedule.

[71 ] We wish to point out to the parties that this does not, of course, preclude

changes to the Schedule 3 at a later date. Schedule 3 may need to be updated if

further information becomes available such as a new site being identified (for

example). We also concur with the Hoetes' wish that further workshopping might

still occur. 6 Although we would not go so far as to suggest that this encompass the

entire Plan so soon after its development, it does strike us that there would be wider

oete, Final submission at [8] Page 235 of 274

22

INTERNAL ACCESS

[72] As we have already noted, the question of access to and around Motiti, was the

subject of a Decision in the High Court. There are good reasons why access to and

around the island needs to be restricted. It is certainly not traditional that members of

the public have been able to access the coastal margin. Islanders themselves wish to

be able to visit their sites of cultural interest. There has been some direct recognition

of this by the Environment Court i.e. in conditions imposed on the Wills subdivision. 7

Largely, however, access to these cultural sites is a matter of accommodation by the

various landowners.

[73] More problematic is the question of internal access. As we have already noted

there are Maori roadways at the northern end of Motiti. Access to those roadways is

not clear, but they are clearly shown as Maori roadway reserves. If they are not

subject to any particular control we assume they can be used by members of the

public if they have access to them. In practice we understand that the Maori road

ways to the north are only used by residents of Motiti A Block. There is an informal

access way from those roadways across land in Maori Title to the Wills airfield.

[74] We commented in an earlier resource consent decision on a right-of-way

across the narrow portion of the Wills land near the airfield to the Motiti B Block.

There also appears to be an informal accessway again along the inside of the Motiti B

Block, but that has not been formed.

[75] Beyond that, access on Motiti, particularly on the titles owned by B & V Wills

and Motiti Avocados, is by an informal accessway, relying on permission from the

landowner. In practical terms Motiti Avocados tends to use their own airfield for

access and their own water access. Thus they would rarely cross the Wills' land to

use their airfield. The Wills and the residents of the northern portion of the Island

meet at the Wills airfield, and those workers at Motiti Avocados who reside on the

northern part of the island appear to have permission to cross the Wills land to access

the Motiti Avocados land.

[76] Overall, it appears to us that there is a suggestion within the Plan that the

Minister was responsible for infrastructure. Mr Frentz observed that this was

inconsistent with the clear intent that there would be no provision of general

7 Burkett v Minister of Illtemal Affairs, A6/97 Page 236 of 274

23

infrastructural roading, or for that matter, any other form of public infrastructure on

the Motiti. However, there is a requirement that any new subdivisions must have

access to both airfields and water access and these would need to be formalised in

some way; however that is likely to be by right-of-way rather than dedication of

roads.

[77] In the end we have concluded that the costs and practicalities of providing

internal access within the island would be difficult, given that there is no intention by

the Minister to either require roading or infrastructure or to pay for the cost of this.

Our concern extends to the practicality of Mr Lawrence's suggestion that the Plan

include current arrangements or preferred routes.

[78] In this regard we recognise the clear intent of all Motitians that they not be

rated and accordingly, the financial basis to pay for such infrastructure is not in place.

Our view is that this matter should be properly recorded within the Plan so that there

can be no expectation. This has now been incorporated in the changes provided to the

Court.

[79] We conclude that given the significant costs of providing internal access, no

further provisions should be made beyond the clarifications suggested. Under Section

32 of the Act we also conclude that the costs of such provision would significantly

outweigh any potential benefit. Therefore no provision is necessary or more

appropriate. This is now to be clarified in amendments proposed to the Plan in

Annexure C.

MAUNGAROA

[80] The Minister and all parties appear to now accept that there should be

provisions relating to Maungaroa - a ridgeline running in an east/west direction.

There was some criticism that these were not included as part of the ecological area.

From our perspective we have concluded that the appropriate approach is to have

separate provisions. The specific reason is that it is an area that is already utilised for

rural purposes, and in particular for the growing of avocados. Accordingly, it is

important that the controls in relation to it are readily available to the persons

operating in that area, and they understand the particular constraints there are.

The other major reason for this approach is that the ecological areas are ones

which it is not intended that there be general rural activity. One reason for its

Page 237 of 274

24

identification separately is as an indication that it is intended to be treated in a

different way to the general rural area.

[82] A similar concern was a perceived failure to provide for the cultural

significance of the feature. The inclusion of Maungaroa within Schedule 3 went some

way towards this, and consequently, most of the provisions in respect of Maungaroa

appear to have been settled. Issues about depth of soil and the like appear to have

been significantly scaled back and the issues are:

[a] Delineation of Maungaroa;

[b] Views and their protection, including trees; and

[ c ] Maintenance and cultural reports.

The delineation of Maungaroa

[83] In order to understand the questions remaining in respect of Maungaroa, it is

important to understand the cultural evidence that was given in relation to it. Mr

Frentz records Mr Ranapia as referring to Maungaroa as an aukati or boundary line.

Mr Kawe giving evidence for Motiti Avocados also refers to the ridge as being a

boundary line: 8

The literal translation of Maungaroa is the "long mountain" and the second meaning refers to "Maunga" being the people of Motiti and the action of "holding on" as in the term "kia mau" and "roa" referring to "line" therefore Maungaroa refers to "holding onto the line" and refers to this purpose.

An "aukati" is a customary resources management tool used by kaitiaki to restrict the access to and use of the resources in an area. ... . .. The reason for the aukati at Maungaroa was to ensure that the resources beyond this line were sustained and maintained for the use and benefit of the whole Island.

[84] Given that there are a number of important waterways and low-lying areas

south of the ridge, it is likely that it was particularly utilised in relation to these

resources.

~ [85] The highest point on the ridge is at A14 (Tohu 0 Punui), which is at around /CO~~l VI- rl-t("""

.I....~~ \ 55m above sea level. There are several other high points in the island, including

8Kawe, EiC at [12] - [14]. See also Lawrence, EiC at [3.1] Page 238 of 274

25

Karioi, and the Rangitahua Pa, further to the north, but the ridgeline itself is a distinct

feature on the otherwise undulating island. Whilst it is not so obvious from the north

of the Island, the height of the ridge is more pronounced when moving south from the

top of the ridge, and in the south of the Island.

[86] The first point that was made on a cultural basis is that the aukati would have

little meaning if it does not go from coast to coast. Furthermore, the various concerns

as to how it is delineated, managed and viewed to and from Maungaroa become

relevant.

[87] Ms Absolum's assessment of the extent of the Maungaroa Ridge was

essentially from coast to coast and connected with the ecological areaslzones on each

side of the Island. This was subsequently revised to limit the feature to site A14 Tohu

o Punui (also the Trig point) to the east, and the airfield to the west.

[88] It is now intended that the feature be identified in Schedule 3 in three parts:

[ a] Area A - Western to Airfield

[b] Area B - Eastern from Tohu 0 Punui; and

[c] Area C - being the Central G Section to which Rule 3.4.15 would

apply.

[89] However, Annexure C intends Area B be 15m either side of the track centre

line (i.e. 30m wide) in Schedule 3, but only 5m either side of the track centre line in

terms of Rule 3.4.15.

[90] The proposed relevant Rule 3.4.15 makes it clear that the width of the track is

defined by the centre of the farm track and incorporates an area of five metres to

either side of that centre line. We do have some significant concerns with this.

[91] The intent of the Plan is clearly to interfere as little as possible with the

operation of the farm, but we consider that the cultural significance of the track needs

a broader recognition and protection. The question is, how far is appropriate? Some

'tnesses suggested that it should be the whole of the feature from its base to its top.

Page 239 of 274

26

protect the cultural and other values of the feature. In the end we conclude that we do

not need to undertake any particular protection of the feature as a whole as it is

unlikely to be removed. Rather the focus should be on ensuring that the uses to which

portions of it are put recognise and reflect its cultural value.

[93] Given the feature largely occupies area within 55m - 45m contours, and that

the important area that the ridge covers is the central area, we have concluded that an

area of ISm either side of the centre line would recognise an appropriate balance

between cultural and other uses for this ridge. We choose ISm because that would

include approximately Sm of contour on each side. We say approximately because

the width of the ridge does vary and there are portions where the drop off is steep and

others where it is more measured. Five metres would tend to include only the very

top of the ridge, whereas ISm includes a portion of the crown of the ridge. The other

major reason is to monitor consistency with Area B in Schedule 3.

[94] In practical terms, little turns on the difference in width. As we will discuss

shortly, existing shelter belts continue under Section 10 of the Act (existing use) and

the extra width is to include the Crown area rather than major works.

[9S] In addition to the question of the width of the shown area, other parties also

disputed the length of the ridge. On the one hand, Motiti Avocados was concerned

with the overlap with the end of their airfield, and on the other, tangata whenua were

concerned that it did not adequately reflect the cultural relevance and extent of the

feature. Motiti Avocados was in tum concerned that any proposal to extend the length

of Maungaroa would have implications on their existing use of the area.

[96] From the evidence that was provided to the Court, we accept that the feature

does continue to the east towards Te Huruhi and to the west to the south of Point A13

Ngaroto. The most pronounced section of the ridge is in terms of the drop away to the

south. Nevertheless, we acknowledge that beyond both ends of the feature

Maungaroa becomes broader and less discernable. Nonetheless, the landform still

clearly falls away to the south ofthe ridge at its western end.

[97] We acknowledge that in the round, Maungaroa does continue both to the east

and to the west across the entire width of Motiti. We have also concluded there is a

visual connection between Karioi, where the people lived, and Tohu 0 Punui and we

~, consider this next. This has now been resolved by the proposal to include Areas A

~ ~; and B of Maungaroa as cultural features but not subject to Rule 3.4.1S. We agree this

%~ ~~J(;, is an appropriate solution . . ~~ ~ ~ " .. ""r ('f")IJP,' ()

Page 240 of 274

27

[98] During the course of the hearing, further changes to the Schedule 3 entry were

proposed that enabled these differences to be better reconciled. The Maungaroa entry

within Schedule 3 now describes the wider cultural extent of Maungaroa, which

includes its range from coast to coast. However, the Schedule explains that activity

controls relate only to portion B of this. These three areas are appended within

Annexure E, with Areas A and C cultural feature while Area B as a cultural area and

with Rule 3.4.15 applying. The proposed changes to the provisions to accommodate

this are attached as Annexure F.

Protection of views

[99] There is acknowledgement within the MIEMP that Tohu 0 Punui was part of

the Maramataka to mark the March equinox, Tuputerangi when the sun sets on top of

Mauao. Accordingly, it was proposed that there be a view shaft provided for this,

which Mr Coombe suggests be between 260° and 273°. This would enable a view of

Mauao in relation to the southern end of Tauranga Moana and Matakana Island.

There is also another view shaft suggested from Tohu 0 Punui to the south, being an

arc from 163° to 13°. The view shaft to the west is Rule 3.4.16; that to the south is

Rule 3.4.17.

[100] The parties did not seem to dispute the appropriateness of this. Nevertheless,

Mr Laurence suggested that there were two aspects which were not protected. These

are views from:

[a] . Karioi to Tohu 0 Punui, and of the ridge itself; and

[b] The track when moving down from Tohu 0 Punui to the west.

[101] There is a considerable amount of intermediate land between Karioi and Tohu

o Punui that would be subject to controls if views to that area were to be protected.

Given the difference in height between the two is not significant, it would constrain

many activities including avocado production activities and the like, which would

otherwise be generally pe1mitted in the rural area .

. ~ [102] During the hearing, the matter of view shaft protection was eventually focused

~V::-~ I'~on the question of shelter belt trees which could impact long views of the island. To

ahis end there was discussion about control over the existing trees. Eventually Motiti z·

J'1'\ . ~l vocados proffered a condition that would control the height of trees above the Z . JJj

~ '\t o~ .. ~ "~~ x ~ " tv.,. ('f)UP" 0 .

Page 241 of 274

~

28

ridgeline. The final Plan version was also to include a control over the height of trees

and structures above the existing ridge line at Maungaroa.

[103] This would, of course, mean that the height of the trees would effectively

follow the ground contours. We see this as significantly preferable to an RL level,

which would essentially draw a line in the air and not reflect the general contour of

the Maungaroa Ridge itself. In our view this adequately balances the interests of

farming and providing avocado shelter, but at the same time recognising issues of

visual significance to tangata whenua.

[104] This raises then the question of artificial shelter. There was some concern

about this, but in the end our view is it should be controlled to the same height rules as

trees themselves. The benefit of artificial shelter is that it can be removed simply

when it is no longer required and has, overall, less impact on the soils than trees.

[lOS] Annexure C contains changes in relation to the ridge and new shelter belt or

artificial shelter. It professes no new shelter belt or artificial shelter in an east/west

direction in Area B south of Maungaroa ridge.

[106] We conclude that this control should apply to all of Area B. We accept the

other rule should only apply south of the ridge. This is so views from north of the

ridge are not further interrupted and those from the ridge itself are preserved from

further intrusion.

[107] With that minor extension of Rule 3.4.1S(c)(ii)(2) to all of Area B we are

satisfied this issue is addressed.

Maintenance Rule 3.4.15

[108] The final issue is the question of maintenance. Particular provisions related to

the creation of tracks, which is currently listed as a permitted activity, and the digging

up of pipes to a depth of SOOmm below ground level. In brief, our conclusion is that

both any new roads or accessways, maintenance involving earthworks, or digging of

pipelines, should be subject to Rule 3.4.1S(3).

'<- £ " '"x- \ [109] This does require an extra step to be taken to either obtain an exemption from

cultural monitoring or to provide for it. What it does recognise is that earthworks on

Page 242 of 274

29

[110] In practical terms, we suspect that it is unlikely that much works would be

necessary within these areas. But where they are we are unable to see a basis upon

which consultation should not occur. In many cases this may be very simple, ie

skimming the existing track to flatten the surface for putting down metals or placing

irrigation pipelines underground. In that case, Rule 3.4.15(3)(d) provides that if

cultural monitoring is not recommended then a letter can be supplied to that effect.

Section 32 of the Act

[111] In relation to these matters, we are looking for the most appropriate provision

that balances the cultural and physical significance of this ridge, with its utilisation

over many decades as productive rural land. It is currently planted in avocados, but

there is also a planting of protective shelter along the edge of the ridge in pines

(acknowledging that these are growing at a relatively high rate, and in their position

on the ridge could affect views to the south from Karioi).

[112] We consider that under Section 32 we must consider the costs on further

continuing use of the land owned by a single landowner. There is also an imposition,

by virtue of the extension into A14, that this may have the impact of constraining a

portion of that land suitable for housing. That landowner of the Hurihi area has not

participated in the hearing process. More particularly, the extent of the imposition is

unclear, given it is a broader, flatter feature.

[113] The parties have proposed a layered approach for Maungaroa; whilst

describing its wider extent, controls are imposed on only part of this. We have

however found that applying the controls to 10m either side of the centre line is

. required to adequately recognise the cultural significance of Maungaroa whilst not

unduly impacting on the existing avocado farming activities. The approach enables

the multiple needs of the parties to be reconciled and appropriately addressed. In our

view the Plan now also appropriately provides for the cultural landscape and views to,

from, and beyond Maungaroa.

[114] We have concluded that it is not appropriate to continue the planning controls

for Maungaroa Ridge beyond the Trig, being the highest point. In relation to the

western end of the ridge, the first major issue is that it would create an imposition

over the end of the runway al"ea, at which people wait for planes and planes turn and

taxi. Although the ridge feature could accommodate this, and the avocado growing

occurring elsewhere, in the end we agree with the evidence of Mr Frentz and Mr

Whittaker that the extension into this area is unnecessary given the identification of Page 243 of 274

30

the feature in Schedule 3 and the rules applying to the central section including its

total width being 30m co-extensive with the Schedule 3 feature.

[115] While we recognise that there would be benefits in having Maungaroa as a

whole subject to controls, there are also benefits in ensuring that the feature covers the

key matters and does not lead to general disruption of the rural activity. Overall, we

consider that the approach now proposed by the Minister is the most appropriate for

this site. Our amendments ensure this balance is appropriate by increasing the width

to all of the Schedule 3 feature and with the controls intended.

PROCESS AND ENGAGEMENT

[116] In this section we give further consideration to Sections 32, 290A, and Part 2

matters, along with the two broader issues of concern which the Court also needs to

consider:

[ a] Matters of process and engagement; and

[b] The issues expressed by Mr Hoete as set out in his appeal document.

[117] As Mr and Hs Hoete succinctly state:

Full consultation has been difficult, challenging, and trying with relationships being strained between Whanau and non-Maori landowners, whilst moving towards a vast change for tangata whenua, and general land owners.

[118] Mr Matahaere's submissions also talk to issues around the level of

engagement between tangata whenua and the Crown, and the exclusion of ahi ka from

the Plan development process.

[119] Despite these views, all of the parties before us acknowledged the exhaustive

effmi that had gone into the Plan, including by the Minister's planner, Mr Frentz.

Furthermore, the majority of the parties expressed the desire not to point fingers at

this stage of the proceedings. This was an extremely heartening and a positive step.

[120] Subsequently, some parties wished to record that a range of outstanding issues

emained with the process that had delivered the MIEMP to this point. Those issues

h

The Court acknowledges those issues and

Page 244 of 274

31

that all the parties to these proceedings have worked towards the resolution of the

MIEMP.

[121] We also wish to draw attention to Mr Matahaere's observation that neither the

Hapu Management Plan nor the MIEMP have been presented on the Island. Whilst

the Court cannot now direct that this occur, we would strongly urge both the Minister

and the parties on the Island to work together to now make this happen; to celebrate

what has been achieved, and, as Mr Pou submitted, to look to the future of this taonga.

HOETE APPEAL

[122] Returning to the issues expressed by Mr Hoete in his appeal document:

[a] A District Plan that recognises and provides for the relationship ofNga

Hapu 0 te Moutere 0 Motiti with their ancestral lands, water, springs,

sites, waahi tapu and other taonga (all submitters);

[b] Integrated management of resources recognising and providing for the

following principles:

[i] Tino Rangitiratanga,

[ii] Te Kawanatanga,

[iii] Te Manaakitanga,

[iv] Te Whanaungatanga,

[v] Te Kotahitangi.

[123] In the end we believe Mr and Ms Hoete acknowledge the need for finalisation

in respect of this Plan. They remain convinced that a Plan was unnecessary and that

the process adopted by the Minister has not been consultative.

[124] We need not revisit this issue. Suffice it to say it is most unfortunate that the

arties have not been able to find an accommodation in order that the Plan could be

p sented on Motiti.

Page 245 of 274

32

[125] Insofar as the form of the Plan itself, we acknowledge that it does not integrate

the Hapu Management Plan as far as we would have liked, nor does it express

planning issues in an overly accessible way. It tends to follow the format of most

district plans on the mainland. We had hoped to see a greater integration between the

Hapu Management Plan and this Plan.

[126] Nevertheless, we have given an exhaustive period of time to try and attempt

this course and agree with all the parties that fmality is now required. We would hope

that with the finalisation of this Plan the parties can now find a basis on which the

Minister could present the Plan to the ahi ka on the island and recognise and celebrate

what is a historic moment for Motiti.

SECTION 32 OF THE ACT

[127] We have dealt with Section 32 issues as this matter has progressed and need

not repeat we have concluded that the provisions now included in the Plan are the

most appropriate. These recognise the cultural and ecological features of Motiti,

while at the same time providing for a reasonable level of rural development and for

the rural production activities that occur on it. In some ways this Plan contains

provisions that are leading-edge (including Schedule 3 cultural areas of significance)

and also complements a significant and detailed Hapu Management Plan.

[128] The changes that have been made to the Plan are ones that essentially improve

the Plan and refine the cost benefit analysis originally undertaken under s32. To that

end the Section 32 analyses undertaken for the initial plan, and later in respect of the

intensity of development, remain pertinent. We acknowledge that the additional

matters we have addressed simply give greater details to the s32 analysis rather than

fundamentally change it.

[129] As part of the 2013 hearing process, the Minister and Motiti Avocados

planners produced Section 32 assessment reports to augment their assessment of

development intensity and clustering. These are included as part of the overall

assessment.

~ [130] The need to update these Section 32 reports was canvassed. We note the "'/"~"'l Of: r'~i

I..,x-Y.. s. 0 • ,y \ \es agreed that:

[a] The distinction between ecological and rural areas is well explained in

our original Decision. Page 246 of 274

33

[b] The reasons for the intensity argument have been addressed in detail

earlier in this Decision.

[c] The Commissioners themselves recognised the need for both a Hapu

Management Plan and for detailed information on areas of

significance. These have both now been provided.

[131] Overall, we conclude that the provisions, with the further amendments in this

decision, are the most appropriate.

COMMISSIONERS DECISION (Section 290A)

[132] The Court's preceding Interim Decision (December 2012) gives consideration

to the Commissioners decision. We concluded in this regard that:

[511 ... By the time of this hearing, matters had moved on somewhat in terms of agreements reached and redrafts of the Plan.9

[133] The production and subsequent integration of elements of the Hapu

Management Plan have further removed the MIEMP from the document before the

Commissioners.

[134] We keep in mind that this Court has adopted a different approach to that

adopted by the Commissioners. We are required to consider the Section 290A,

nevertheless. The approach of rural and ecological areas, and cluster development, is

a matter which was addressed by this Court in its primary decision and appealed. The

reasons for the difference in approach is clearly explained through that process, but

for the sake of clarity we note that we have considered the Commissioner's decision

and concluded that the approach now adopted by the Plan more appropriately meets

the requirements of Section 32 and the Act's provisions.

CONSIDERATION OF PART 2 OF THE ACT

[135] In the end we must be satisfied that this Plan meets the purpose of the Act as

set out in Part 2.

NZEnvC 282 at [51] Page 247 of 274

34

[136] We recognise that it now more directly addresses the ecological features of

Motiti and those of cultural significance. Although it does not provide for public

access as suggested under Section 6, the reasons for this are now set out in the Plan,

and it provides something of an exception for the reasons we have discussed. Clearly,

the questions of historic heritage have been addressed in significant detail through

Schedule 3 to the Plan and this is a particularly detailed approach to the matters of

cultural and historic significance. Maungaroa Ridge has been expressly addressed in

the Plan.

[137] When it comes to issues of amenity, these are recognised in a number of

provisions in the Plan, but particularly in respect of view shafts and controls now

accepted in respect of the activities that can be conducted within the rural area. We

particularly recognise a need to provide for the construction of papakainga housing

and for further general intensification at the northern end of Motiti. This is achieved

by both accommodation of lack of intensity rule within the cluster area, and the ability

to develop on the already-subdivided sections one house per lot.

[138] In the end we have had to balance issues of wider development against the

capacity of the island to provide water and absorb waste. We consider that overall the

MIEMP now represents a comprehensive approach to matters under Part 2, with

appropriate checks and balances. Overall we are satisfied that this Plan now meets the

purpose of the Act.

DIRECTIONS

[139] Given our conclusion we confirm the provisions of the Plan as annexed as A, C, E and F with the changes required in this decision. We direct:

[a] The Plan is to be amended by the removal of cluster Wills 2 Area C;

and

[b] The Preamble of Motiti Rohe Moana Trust (Rohe Moana Trust) is to

be adopted with the following wording added at the end in English

under both issues:


Page 248 of 274

35

[c] Rule 3.4.l5(c)(ii)(2) is to apply to new shelter belts or artificial shelter

within Area B (not just south side);

[ d] The extent of the Ridge in Area B is to be widened to 10 metres; and

[ e ] Any other minor amendment required by this decision.

[140] The Ministeris to:

[a] Circulate an updated Plan within 10 working days incorporating these

alterations;

[b] Parties are to provide comments back to the Minister within a further

10 working days; and

[c] The Minister is to provide its updated Plan, with parties' comments

and its response, to the Court within an additional 10 working days.

[141] The Court will then finalise and approve the Plan.

COSTS

[142] Tentatively, we are of the view that this is not a case on which costs are

appropriate.

SIGNED at AUCKLAND this 31st day of October 2014

For the Court:

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36

SCHEDULE OF ANNEXURES

A Proposed Motiti Island Environmental Management Plan

B Minute to proceed to sUbstantive hearing, parties have right to call further

evidence if necessary

C Material from the Minister, to be included within the Plan

D Comparison of dwelling unit equivalent-yields (DUEs) between 10 hectares

and 15 hectares (Whitaker EiC)

E Map

F New Maungaroa written provisions

Page 250 of 274

File Reference:

4.00209

Significance of Decision: Receives Only - No Decisions

Report To: Regional Direction and Delivery Committee

Meeting Date: 09 December 2014

Report From: Eddie Grogan, Deputy CE & GM Regulatory and Customer Service

Rotorua Geothermal Compliance Report: January 2012 to October

2014

Executive Summary

This report summarises compliance with geothermal take and discharge consents in the Rotorua geothermal field. The reporting period covers inspections undertaken between January 2012 and October 2014.

Overall, 88 consents were inspected during the period. 61% of consents inspected complied fully with their requirements. Only seven of the 88 consents inspected demonstrated a serious non-compliance.

1 Recommendations

That the Regional Direction and Delivery Committee under its delegated authority:

1 Receives the report, Rotorua Geothermal Compliance Report: January 2012 to October 2014.

2 Notes staff actions to follow up cases of non-compliance.

2 Background

Compliance monitoring of geothermal consents in Rotorua is undertaken according to Council’s Compliance Monitoring Policy 2001 (Compliance Policy), which currently requires all geothermal sites to be inspected on a three yearly basis. Monitoring is undertaken in the winter months to coincide with the period when flow and temperature data can be obtained.

The Rotorua Geothermal field is shown on Map 1.

Eighty-eight individual consents were monitored during the period 1 January 2012 through to 30 October 2014. These related to 85 sites. Fifty nine sites held consents for both the take and discharge of geothermal fluid. A further 25 sites are authorised to take heat through down hole heat exchangers. The remaining site held two separate consents for the taking and discharging of geothermal fluid.

Page 251 of 274

Rotorua Geothermal Compliance Report: January 2012 to October 2014

2

Two of the sites had their consents expire during the period, with their replacement consents also being monitored i.e. four consents monitored related to two sites.

The consented sites varied in form from down-hole heat exchangers to multiple production/disposal bore systems.

The production bore systems can be either free flowing (artesian) bores or pressure aided systems (e.g. using an air compressor). These types of systems are generally large volume and are able to supply numerous users. Historically, these systems have discharged the spent geothermal fluid into shallow soak holes; however, geothermal fluid is now required to be discharged into reinjection bores that discharge to a similar depth to that of the production bore. If this is not technically possible the fluid is disposed of to the Rotorua District Council sewer.

Map 1 Rotorua Geothermal Field

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3

3 Method

The current Compliance Policy requires the sites to have a routine inspection once every three years. Additional inspections for non-complying sites are carried out as required until the site is back to full compliance. In total, 111 inspections were carried out over the reporting period.

The reported compliance ratings in Table 1 are based on the rating at the first visit.

During the reporting period compliance grades have transitioned from the High, Moderate, Poor rating system, to the Complying, Low Risk Non-Compliance, High Risk Non-Compliance, Major Non-Compliance rating system. Appendix 1 details the correlation between the old 3 grade system and the new 4 grade system.

For the purpose of this report the following categories have been combined:

Complying: High and Complying

Low Risk NC: Low Risk NC

High Risk NC: High Risk NC and Moderate

Major NC: Major NC and Poor

For each category the following definitions apply:

Complying: Indicates compliance with consent conditions as inspected on the day.

Low Risk NC: Indicates compliance with all or most consent conditions. Any non-compliance is of a low risk to the environment. This includes missing records.

High Risk NC: Indicates compliance with most conditions and the environmental consequence of the non-compliance is deemed to be minor, but has the potential to result in moderate environmental effects.

Major NC: Indicates a failure to comply with a number of consent conditions and/or the environmental consequences of non-compliance is deemed to be significant. Includes sites where the consent has expired but they are still abstracting.

Monitoring compliance generally involves an inspection of the bore and associated infrastructure at the take and discharge points. Staff note any maintenance that may be required, as well as checking on specific condition requirements such as whether a pressure gauge is installed and operating, access, records being supplied as required, consistency with the consented plans and checking the disposal of geothermal fluid is undertaken as prescribed.

Staff also ensure records are being kept and submitted as required by the consents. The late submission of records continues to be a key reason for sites receiving a Low Risk non-compliance rating.

Page 253 of 274


4

During the monitoring period staff worked closely with consent holders to improve their compliance levels. At the time of writing this report, staff were still working with several consent holders to improve their compliance.

4 Compliance Results

Table 1 summarises the compliance results for consents within the Rotorua Geothermal field. As discussed above, the compliance rating for this period is based on what was observed at the first inspection.

Table 1 2012-2014 Rotorua Geothermal Field compliance results

Number of Consents Major NC High Risk

NC Low Risk

NC Complying

Fluid Take Only 2 0 0 1 1

Fluid Discharge Only 1 0 0 0 1

Both Fluid Take & Discharge 60 1 5 21 33

Down Hole Heat Exchangers 25 1 0 5 19

2012/14 reporting period (%) 88 2% 6% 31% 61%

Table 2 Summary of previous Rotorua Geothermal Field compliance results

Poor Moderate High

2008/11 reporting period (%) 4% 20% 76%

2005/07 reporting period (%) 1% 19% 80%

In both the 2007 and 2011 Geothermal Compliance reports the main reason for non-compliance was highlighted as a lack of flow and temperature readings being submitted.

In addition, maintenance issues were also a key reason for non-compliance during the previous reporting periods.

Page 254 of 274


5

5 Discussion on 2012-2014 Non-Compliances

5.1 Major Non-Compliance

Both of the Major NC rated sites related to consent holders who were operating without consents, as their previous consents had expired and a replacement had not been sought.

One of the consent holders has since reapplied and been granted a new consent. The owner of the other site had not applied for a replacement consent at the time of writing this report; however, they have temporarily ceased using their down-hole heat exchanger. Staff are currently working through consenting options with the owner’s consultant.

5.2 High Risk Non-Compliance

Four of the five sites rated as High Risk NC required maintenance works to be carried out on their system to ensure their systems operate to an acceptable level. Leaks, problems with pipework and a fractured casing for a reinjection bore needed to be addressed.

The fifth site rated as High Risk NC was abstracting over their consented limit.

5.3 Low Risk Non-Compliance

A variety of issues contributed towards sites being rated as Low Risk NC. The majority of sites receiving a Low Risk NC did so in relation to a lack of self-monitoring or reporting of flow and temperature measurements, as required by the consents. While this is a low risk compliance issue, it does contribute to Council’s inability to build a comprehensive picture of the use of the Rotorua geothermal resource.

There were also a number of sites where minor maintenance works were required, such as replacing valves or pressure gauges. There were also some minor leaks which required attention.

Several sites were set up differently to that authorised by the consent. Although these do not cause an effect on the geothermal resource, it is important for the management of the resource to have an accurate picture of connections, pipeworks and plumbing associated with the geothermal field. Therefore consent holders are required to provide updated information to clarify this.

6 Conclusion

Although only 61% of the consents inspected were found to be fully complying with their consents, only 8% of the consents inspected (7 consents) were found to be in serious non-compliance with their requirements (combination of Major NC and High Risk NC).

Two sites were found to be operating without consent, as their consents had expired during the reporting period. One of those sites has now obtained a new consent, while the other has ceased abstracting.

Page 255 of 274


6

Non-compliance with conditions requiring submission of records continues to be a key reason for the majority of the Low Risk non-compliance. Staff are looking to find a longer term solution to improving the quality of this data.

7 Next Steps

Staff currently monitor the Rotorua Geothermal sites on a three yearly basis (a third of the sites are visited each year). A review of compliance monitoring frequencies is currently being undertaken across all the consented activities that Council monitors to ensure best use of available resources. The review is taking a risk-based approach to compliance monitoring and may result in routine inspections for Rotorua Geothermal consents becoming less frequent. Additional inspections for non-compliant sites will still be undertaken, as occurs currently.

Steve Pickles Pollution Prevention Team Leader Whakatane for Deputy CE & GM Regulatory and Customer Service

1 December 2014 Click here to enter text.

Page 256 of 274

APPENDIX 1

Geothermal Compliance Categories

Page 257 of 274

of 274

High

Moderate

Poor

Complying

Low Risk NC

High Risk NC

Major NC

Complies with conditions of consent at time of inspection

Paperwork missing, low risk maintenance issues, no observed effect, etc

More serious maintenance breaches where

effect is minor OR there is a high risk of moderate to significant effects, multiple Low Risk issues, slight exceedance of take limits

Maintenance breaches where effect is significant, multiple High Risk issues,

significant breach of take limits, abstracting under expired consent, breach of Abatement

Notice

Geothermal Compliance Ratings: Correlation between the two rating systems

Old Rating System New Rating System Explanation/Examples

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appendix 1 environment court decision - ngati makino heritage

Documents