before a board of inquiry east west link project in …...jun 27, 2017 · relevant statutory...
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Barristers and Solicitors Auckland
Solicitors Acting: Pat Mulligan / Vanessa Evitt
Email: [email protected] / [email protected] Tel 64 9 358 2555 Fax 64 9 358 2055 PO Box 1433 DX CP24024 Auckland 1140
BEFORE A BOARD OF INQUIRY EAST WEST LINK PROJECT IN THE MATTER OF the Resource Management Act 1991 (RMA)
AND
IN THE MATTER OF a Board of Inquiry appointed under section 149J of the Resource Management Act 1991 to decide notices of requirement and resource consent applications by the New Zealand Transport Agency for the East West Link Project
OPENING LEGAL SUBMISSIONS ON BEHALF OF THE NEW ZEALAND
TRANSPORT AGENCY
27 June 2017
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TABLE OF CONTENTS
PART 1 1
1. Introduction 1
2. Structure of submissions 5
3. The Transport Agency's statutory role 5
4. The purpose of the EWL Project 6
5. Project development 11
History of the Project Area 11
Strategic direction 13
Corridor selection 15
Project Objectives 18
6. Mana whenua 18
7. Pre-Lodgement Processes 22
8. Documentation 24
9. The designations and resource consents sought 24
The Notices of Requirement 24
Notice of Requirement 1 24
Notice of Requirement 2 25
Applications for resource consents 25
10. Statutory framework 26
Board of Inquiry's jurisdiction 26
Notices of requirement and section 171 27
Alterations to designations 27
Adequate consideration of alternatives 28
Reasonably necessary for achieving the objectives 28
Outline Plan of Works – section 176A 28
Resource consents 29
Bundling and activity status 29
Gateway tests - Section 104D 29
Section 104 assessment 30
Section 105 and 107 considerations 30
Part 2 Provisions 31
11. Overview of issues - Structure of remaining submissions 31
PART 2 33
12. Alternatives 33
Case Authorities 33
Alternatives Process for EWL 34
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Alternatives – Preferred Corridor 37
Preferred Alignment 38
Preferred Alignment Foreshore Sector 39
Preferred Alignment – Anns Creeks and Great South Road 40
Grade Separation of Great South Road intersection 41
Preferred alignment – State Highway 1 41
Preferred alignment – Neilson Street 43
Benefit Cost Ratio 44
13. Transport and traffic – Project wide 46
Walking, Cycling and Connectivity 48
Submitter concerns 49
Benefits of improvements to the transport system 51
14. Mana whenua issues 53
Iwi claims in respect of the foreshore 55
Response to specific concerns raised by NWO 57
Response to issues raised by Te Akitai 59
15. Reclamation 60
EWL road embankment - contaminant containment function 64
Foreshore stormwater treatment 64
Foreshore Stormwater - consenting approach 66
Access, recreation and rehabilitation 66
Coastal process issues 67
Ecological effects of the reclamation 67
Submitter concerns 68
Universal access/carparking 69
16. Neilson Street Interchange area 70
Outstanding issues 71
Te Hōpua 71
Te Hōpua's geological values 72
Te Hōpua's legibility 73
Severance of Te Hōpua from Manukau Harbour 74
Connectivity and amenity between Onehunga and the Wharf and Harbour 74
The land bridge 75
Pedestrian and cycle route between Onehunga Town Centre and
the Wharf/Old Māngere Bridge 76
Connectivity and amenity between the Wharf and Taumanu Reserve 78
Panuku's aspirations for the Wharf 78
Undergrounding of the transmission lines 79
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Built heritage 79
Aotea Sea Scouts building 79
The Landing and Onehunga Wharf 80
Mana Whenua's association with the area and the cultural landscape 82
17. Waikaraka Park and Cemetery 83
Alfred Street connection 84
Waikaraka Park South 87
18. Biodiversity and natural features – Anns Creek and Māngere Inlet 88
Natural Features 92
19. Key infrastructure 93
Transpower assets 94
Southdown Substation 96
20. Dredging 96
21. Construction impact 98
Construction traffic 99
Construction noise and vibration 100
Air discharges 101
Social impacts during construction 102
22. Managing effects of the Project 103
PART 3 106
23. Specific submitter issues 106
Land acquisition and property access 107
Public Works Act 1981 and RMA interface 108
Auckland Council 109
Outstanding issues 111
Trench and lid – Neilson Street 115
Reclamation 116
Dredging 117
Transmission line undergrounding 117
Auckland Transport 118
Aotea Sea Scouts 119
Onehunga Mall Cul-de-sac residents 120
EnviroWaste (Chemwaste) 121
Ports of Auckland Limited 123
Auckland Helicopters 124
Mercury's Southdown Site 126
Outstanding issues 129
Dust 129
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Access 130
Risk 131
TR Group 134
Stratex/Tram Lease 137
Turners & Growers (T&G Global) 139
TOES, OBA, Re-Think EWL and Manukau Harbour Restoration Society 142
PART 4 144
24. Policy and planning documents 144
NPS on Renewable Energy Generation 146
New Zealand Coastal Policy Statement 147
Auckland Unitary Plan (Operative in Part) 149
Reclamation provisions 150
Infrastructure, Use and Development 151
Biodiversity 152
Outstanding Natural Features 152
25. Statutory assessment 153
Existing and Future Environment 154
Notices of requirement – section 171 matters 154
Assessment of Effects 154
Relevant statutory planning documents – section 171(1)(a) 155
Adequate consideration of alternatives – section 171(1)(b) 155
Reasonably necessary to achieve objectives – section 171(1)(c) –
case authority 156
Other matters – section 171(1)(d) 159
Gateway Tests – section 104D – Case Authority 159
Gateway Tests – section 104D – Assessment 160
Assessment of Effects – section 104(1)(a) 161
Statutory Planning Documents – section 104(1)(b) 162
Permitted Activities 162
Part 2 of the RMA 162
Orthodox approach to Part 2 162
King Salmon 163
Puhoi to Warkworth Board of Inquiry 163
Basin Bridge – Notices of Requirement 164
RJ Davidson Family Trust 165
Application of these cases to this Project 167
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Attachment A: Key components of the Project (Figure 1-1 from
the Assessment of Effects on the Environment) 169
Attachment B: List of the transport agency's witnesses 170
Attachment C: Minister's reasons for referral to this board 171
Attachment D: Proposed management plan structure 173
Attachment E: AUP(OP) reclamation objectives and policies 174
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PART 1
1. INTRODUCTION
1.1 The East West Link (Project or EWL) is one of Auckland's top priority
transport projects. The Project area comprises the areas of Onehunga-
Penrose, Mt Wellington and Ōtahuhu and is the main industrial, transport
and distribution hub for Auckland and the upper North Island. It is a
regionally strategic location due to the important interface between road
and rail freight at the Westfield/Southdown terminal.1 The Project will
relieve traffic congestion in the area and support local and regional
economic growth. The Project area currently faces increasing congestion,
with poor east-west connectivity adversely impacting the key transport and
logistical functions of the area and constraining economic potential.
1.2 EWL will provide a new four lane arterial road on the northern side of the
Māngere Inlet, providing improved connections between SH20 in Onehunga
and SH1 at Mt Wellington but also within and around the Project area. It
provides transport connections for freight and general traffic, supported by
improvements in local road connections and a widening of SH1 between Mt
Wellington and Ōtahuhu.
1.3 The Project will provide significant positive outcomes regarding travel time
and reliability accessing the Onehunga-Penrose area, and also positive
effects on the wider road network.2 This will improve the efficiency of the
public transport network in the area. Traffic is predicted to move onto the
EWL, relieving congestion on the local roads such as Neilson Street,
Church Street and Great South Road.3 This will enhance the amenity of the
local area and allow easier access to properties and local streets.
1.4 An integral part of the Project is an improved cycle and pedestrian network.
This in tandem with reduced local road traffic will enhance the area's
multimodal connections. The Project will develop a new network of cycle
and pedestrian paths between Onehunga and Sylvia Park, along with
upgrades to existing paths and improved connections to the coast.4 This
will improve safety and accessibility for cyclists and pedestrians travelling
1 Williamson EIC, paragraphs 1.2 and 1.3. 2 Murray (Traffic and Transportation) EIC, paragraph 1.5. The key components of the Project are shown on the diagram in Attachment A. 3 Murray (Traffic and Transportation) EIC, paragraph 1.6. 4 Nancekivell EIC, paragraph 6.4.
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within the local communities and as part of the development of the wider
walking and cycling network in Auckland.5
1.5 The Project alignment is constrained by many built and natural features:
such as well-established urban and industrial development, significant
ecological and natural features, built heritage features, a range of network
utilities, existing transport infrastructure and proximity to the coast.
Additionally, the northern shore of the Māngere Inlet, which the proposed
EWL will traverse, is an area extensively modified through past landfilling
activities.
1.6 In addition to constraints, however, this complex urban and natural
environment presents a number of opportunities. The Project's coastal
setting at the narrowest part of the Auckland Isthmus allows it to deliver not
only critical transport outcomes but also additional environmental benefits.
The Project provides unique restoration opportunities, which are only
possible because the EWL sits on or near the coast. These opportunities
were pursued in response to input from Project partners, particularly Mana
Whenua, during the corridor selection process.6
1.7 The Project provides a platform to transform a coastal environment that has
had over 100 years of neglect and to create a renewed sense of place. In
addition to transport outcomes, the proposed foreshore works will better
contain existing discharges from the closed landfills into the Māngere Inlet,7
and rehabilitate the foreshore to provide open space8 and to reflect and
respect the cultural, historical and geological values of the area.9 Enhanced
public access to the foreshore will reconnect the community with the Inlet,10
and proposed stormwater wetlands will treat discharges, not just from the
EWL, but the wider Onehunga-Penrose area.11
1.8 The EWL is not a motorway on the coast. The foreshore section of the road
corridor has been carefully designed to give due respect to its coastal
setting, creating a quality urban harbour frontage.12
5 Murray (Walking and Cycling) EIC, paragraph 1.7. 6 Wickman EIC, paragraph 8.6(b). 7 Allison EIC, paragraph 11.2. 8 Linzey EIC (Social Impact), paragraph 10.13. 9 See for example Linzey EIC (Cultural Values), paragraph 1.5. See also Smith EIC, paragraph 1.5. 10 Lister EIC, paragraph 1.7 and Hancock EIC, paragraphs 12.9 – 12.15. 11 Allison EIC, paragraph 9.2. 12 Lister EIC, paragraph 8.27.
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1.9 The historic Kāretu portage underlies today's urban road structure in the
Project area, linking Anns Creek with Kāretu, south of Panmure Basin. It is
the foundation of today's east to west movement across the isthmus. Over
time these portages have been vital for east-west trade and for supporting a
strategic network of pā and kāinga from the far north to the South Island
through the Project area. The Project has taken the opportunity to
celebrate the cultural and heritage values of the Kāretu portage, by
proposing to construct a prominent, elevated and eye-catching structure
called the "Kāretu Portage Path", envisaged as the "Light Path"13 of the
Project area.
1.10 Towards the eastern end of the Project area, SH1 crosses over Ōtahuhu
Creek which is the route of Te Tō Waka Ōtahuhu portage, a site of
significance to Mana Whenua.14 The existing box culverts, installed when
SH1 was constructed in 1959, will be removed and replaced with a bridged
crossing to acknowledge the significance of this historic portage.15 This
new crossing will open up the creek, to better reflect the Ōtahuhu portage
and allow for some declamation in the estuary and low to mid-tide access
under the bridge.16
1.11 As with all projects of this size and magnitude, there will be adverse effects,
particularly during construction. The Transport Agency acknowledges that
the Project affects the interests of members of the community and industry
in the area, and will address their concerns and these adverse effects in
more detail later in these submissions (Part 3) and in the Transport
Agency's evidence.
1.12 Through the choice of alignment, the design of the Project, the coastal
rehabilitation works and the development of a comprehensive suite of
conditions, the Transport Agency has sought to avoid, minimise, mitigate
and offset actual and potential adverse effects.17
1.13 The land requirements for the Project also raise a number of site specific
issues and challenges. The New Zealand Transport Agency (the
13 The Light Path is situated between Canada Street and Nelson Street, as described in Lister's EIC at paragraph 8.54. The Kāretu Portage Path runs along where the EWL is on structure from Anns Creek, along Sylvia Park Road past Hamlins Hill to Mutukawa (sectors 3 and 4, as described at page ii of the ULDF addendum). 14 Mana Whenua in this instance includes Ngāti Whatua Orakei, Te Rununga Ngāti Whatua, Ngāti Paoa. 15 Nancekivell EIC, paragraph 7.18. 16 Nancekivell EIC, paragraph 15.25. 17 Hopkins EIC, paragraph 1.5.
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Transport Agency) has been working proactively with affected landowners
and business owners to manage these property issues.
1.14 While this Project gives rise to a wide range of issues and considerations,
key issues for the Board's determination are:
(a) Adequate consideration of alternatives;
(b) Transport and traffic benefits and site specific issues;
(c) Reclamation including its size and extent;
(d) Project design for the Neilson Street interchange area;
(e) Urban design and social issues relating to the Waikaraka Park and
Cemetery area;
(f) Anns Creek and ecological values;
(g) Effects on key infrastructure;
(h) Dredging;
(i) Construction impact;
(j) The policy gateway test for the consents (section 104D(1)(b)); and
(k) Ultimately, whether the applications for the Project should be
approved.
1.15 The purpose of these submissions is to provide an overview of the
Transport Agency's case and the evidence to be called in support of it and
to outline the relevant legal framework for the consideration of Project. The
Transport Agency is calling 36 witnesses in support of the Project (listed in
Attachment B). The Transport Agency's case is that the Project meets the
relevant statutory considerations and that the Notices of Requirement
(NoRs) should be confirmed and the resource consent applications should
be granted.
1.16 To assist the understanding of the Board and parties, the Transport Agency
has prepared a Project overview using a computer generated "flyover" as a
visual aid.
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2. STRUCTURE OF SUBMISSIONS
2.1 These submissions are structured in four parts.
2.2 Part 1:
(a) Explains the Transport Agency's statutory role;
(b) Sets out the purpose of the Project;
(c) Provides an overview of the Project's development;
(d) Describes the statutory framework for the Board's decision;
2.3 Part 2 outlines the Project wide or specific area based issues raised by
submitters.
2.4 Part 3 outlines site specific issues raised by individual submitters.
2.5 Part 4 assesses the Project against the relevant statutory framework.
3. THE TRANSPORT AGENCY'S STATUTORY ROLE
3.1 The Transport Agency is a Crown entity whose purpose is to deliver
transport solutions for a thriving New Zealand including investing in public
transport, local road networks and the construction and operation of the
State highway network on behalf of the government.18 The Transport
Agency's statutory objective under the Land Transport Management Act
2003 (LTMA) is:
To undertake its function in a way that contributes to an effective, efficient, and safe land transport system in the public interest.19
3.2 Land transport system is broadly defined in the LTMA as including
"transport on land by any means" and "coastal shipping and associated
infrastructure".20 The functions of the Transport Agency include:21
(a) to contribute to an effective, efficient, and safe land transport system in the public interest…
(c) to manage the State highway system, including planning, funding, design, supervision, construction, and maintenance and operations,
18 Government Roading Powers Act 1989, section 61 provides the Transport Agency with the sole power of control for all purposes, including construction and maintenance, of all State highways and has the power to do all things necessary to construct and maintain in good repair any State highway 19 LTMA, section 94. 20 LTMA, section 5. 21 LTMA, section 95.
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in accordance with this Act and the Government Roading Powers Act 1989…
3.3 In meeting its objectives and functions, the Transport Agency is required
under section 96(1) of the LTMA to exhibit a sense of social and
environmental responsibility and use its revenue in a manner that seeks
value for money.22
3.4 The above functions reflect the Transport Agency's general duty to ensure
that all forms of land transport (not just State highways) operate in an
effective and integrated manner. For this reason the Transport Agency is
an approved requiring authority not only for the construction and operation
(including the maintenance, improvement, enhancement, expansion,
realignment and alteration) of State Highways, but also cycleways and
shared paths.23
4. THE PURPOSE OF THE EWL PROJECT
4.1 The Project has been designed to respond to a number of existing and
future traffic and transportation issues that were identified in the Project
area during the Project's business case and pre-lodgement assessments
phase. In summary, these issues are:24
(a) Highly congested, unreliable and inconsistent journey times
accessing SH1 and SH20 from this area;
(b) Internal road networks operating at capacity across the working day,
with congestion experienced throughout the corridor;
(c) Poor accessibility for local businesses, with conflict between through
and local access traffic on Neilson Street, Church Street and Great
South Road;
(d) Congested and unreliable journeys for buses accessing Onehunga
from SH20;
(e) Use of residential streets to access the industrial areas due to
congested strategic connections; and
22 LTMA, section 96(1)(a) and (1)(b). 23 Resource Management (Approval of Transit New Zealand as Requiring Authority) Notice 1994; Resource Management (Approval of NZ Transport Agency as a Requiring Authority) Notice 2015. 24 Murray EIC (Traffic and Transportation), paragraph 2, 9.3 and 9.44.
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(f) An incomplete walking and cycling network, with a lack of reliable
and quality connections, including to Onehunga town centre and
from Onehunga to Sylvia Park Town Centre.
4.2 The current issues faced by the network constrain opportunities for growth
in public transport access, business development and rail freight
distribution.25 These access problems will be exacerbated in the future due
to the significant growth projections for Auckland and the pressures this will
place on the transport network.
4.3 The Project will deliver improved connectivity across a range of travel
modes, being motorway to motorway, local roads to the new arterial, shared
paths to local roads, and walkways to shared paths.26 The Project also
enhances public access to the coast.
4.4 The Transport Agency expects the following specific transport benefits to be
delivered by the Project: 27
(a) More reliable roading connections to SH1 and SH20 from the
industrial areas of Onehunga and Penrose, increasing the efficiency
and reliability of journey times to and from the area to greater
Auckland;
(b) A reduction in the amount of freight traffic on local roads, including
Neilson and Church Streets, thereby increasing the efficiency and
reliability of journey times between destinations within the area;
(c) Greater separation of heavy freight traffic from public transport and
private vehicles in around the local road network and as between
Māngere Bridge and Onehunga town centre, a key public transport
route;
(d) Improved freight distribution efficiency and the interaction of rail and
freight; and
(e) Improved journey time reliability for buses between SH20 and
Onehunga Town Centre and other improvements to the public
transport network in the area.
25 Murray EIC (Traffic and Transportation), paragraphs 1.2(f) and 9.44(e). 26 Hancock EIC, paragraph 12.2. 27 Murray (Traffic and Transportation) EIC, paragraph 1.5 – 1.7 and section 10.
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4.5 The Project also creates a more extensive, better connected and more
accessible movement network, with around 25 kilometres of new or
upgraded walking and cycling paths, as well as extended and new local
roads.28
4.6 These Project-wide transport benefits are not disputed by the transport
experts for the submitters.29 There are also a number of submitters
including Auckland Transport30 who support the Project as a whole.31
4.7 The travel time reductions will have economic benefits for business and
support development of the economic potential of this area as Auckland’s
(and the upper North Island’s) main industrial, transport and distribution
hub.32 The economic activity within the Project area is not disputed.33 The
Council economist acknowledges that the economic benefits of the Project
are substantial.34 A range of economic benefits, including increased
business productivity and reduced costs will flow from the transport
benefits.35 These economic benefits will in turn support the land use
patterns of the area, including by maintaining an industrial focus in the
industrial areas as well as supporting the growth of Onehunga and Sylvia
Park and Onehunga Town Centres.
4.8 However, as signalled earlier EWL is more than a State highway. The
northern foreshore of the Māngere Inlet has been severely affected by
historic reclamation and landfill activities. Some parts of the current coastal
environment are degraded and its form bears little resemblance to the
natural coastline of the past. At an early stage in the development of the
Project, the Transport Agency and its Project Partners (particularly Mana
Whenua) identified that the creation of new roading infrastructure also gave
rise to the unique opportunity to undertake restoration, transformation and
enhancement of this coastal environment and people's connections to it.
4.9 The proposed route along the foreshore of the Inlet provides unique
opportunities for major environmental improvements to be made, including:
28 Hancock EIC, paragraph 12.2 and Murray (Walking and Cycling) EIC, paragraph 1.6. 29 Murray rebuttal, paragraph 6.1. 30 The initial phases of the Project were defined and developed with Auckland Transport, see AEE, section 3: Project Development. 31 94 submitters support the Project either in full or in part. 32 Williamson EIC, paragraphs 7.1-7.7. 33 Joint Witness Statement on Economics, paragraph 1.6. 34 Norman EIC, paragraph 3.2. 35 Joint Witness Statement on Economics, paragraph 1.8.
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(a) Improving the quality of groundwater discharge into the harbour
coming from historic landfills;
(b) Rehabilitating the natural character of the foreshore which is
affected by historic reclamation. The foreshore will be transformed
by a naturalised and landscaped shoreline, enhancing the setting of
the Inlet itself and creating new views and vistas across the water to
the surrounding volcanic cones;36
(c) Enhancing the community connection to the Inlet through creating
recreational spaces, improving the road and pedestrian network and
making the foreshore safe and accessible to a wide range of people;
and
(d) Using the coastal rehabilitation areas to improve stormwater water
quality.
4.10 The sector of the EWL along the Māngere Inlet has been designed to have
a different character from the balance of EWL, namely the character of an
urban arterial.37 An urban arterial has particular design parameters,38 and
will convey that Māngere Inlet is a quality urban harbour frontage, will
connect Onehunga’s street grid to the inlet, and be readily crossed at
appropriate places.39
4.11 It is highly unlikely that these improvements to the coastal environment
could feasibly be undertaken as a standalone project by any other entity at
the scale and timeframe offered by the Transport Agency.
4.12 The Project therefore presents an important opportunity to achieve
significant transport benefits but also effect real change and secure
environmental benefits that are unlikely to occur otherwise.40 These
broader benefits tie in to the Transport Agency's wider responsibilities in
terms of social and environmental responsibility under the Land Transport
Management Act.41 The Transport Agency is required to consider these
36 Hancock EIC, paragraph 10.6. 37 Lister EIC, paragraph 8.27(a). 38 Following the Transport Agency "Bridging the Gap" guidelines. 39 Lister EIC, paragraph 8.27(a). 40 Gliddon EIC, paragraph 5.13. 41 Section 96(1)(a) of the Land Transport Management Act 2003 provides that the Transport Agency must exhibit a sense of social and environmental responsibility.
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wider issues and work towards providing environmentally and socially
responsible outcome within the context of a particular project.42
4.13 While transport outcomes and the proposed foreshore works are important
components of this Project, it will also provide numerous other benefits:
(a) Landscape and urban design transformation – the Project has been
designed to deliver strong urban and landscape outcomes
supportive of enhanced character, context and connectivity in and
around the EWL corridor;43
(b) Facilitating community aspirations for Onehunga Wharf - trenching
the EWL alignment at the Onehunga Wharf and creating a 70m wide
land bridge over the trench which together will enhance community
connections to the Onehunga Wharf area and facilitate Panuku's
regeneration aspirations for this area. The additional road capacity
will also provide for increased traffic from the Wharf, in the event of
its redevelopment;44
(c) Town centre and local amenity - reductions in traffic volumes along
local roads in Onehunga and Ōtahuhu which will improve local
amenity and in particular air quality for residents and sensitive
activities along local roads in Onehunga and Ōtahuhu;45
(d) Improvements in connections from Te Hōpua to Anns Creek East
provide opportunities to increase the public's awareness and
knowledge of the area's volcanic heritage;46
(e) Provision of a prominent elevated shared path structure Kāretu
Portage Path, in recognition of the cultural and historic significance
of the Kāretu Portage;47
(f) An overall reduction in existing traffic noise for residents along SH1
with the construction of new noise barriers;48 and
(g) Replacement of the box culverts at SH1 over Ōtahuhu Creek with a
bridge. This will restore the tidal channel and improve coastal
42 Gliddon EIC, paragraph 4.6. 43 Hancock EIC, paragraph 16.2. 44 Linzey (Social Impact) EIC, paragraph 8.9(b). 45 Needham EIC, paragraph 1.7, Linzey (Social Impact), paragraph 1.4. 46 Smith EIC, paragraph 1.4. 47 Lister EIC, paragraph 8.54-8.57. 48 Wilkening (Traffic Noise) EIC, paragraphs 1.3 and 1.4.
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connections between creek and the Tamaki River in
acknowledgement of the historic Ōtahuhu portage.49
4.14 As with all projects at this scale, there will be adverse effects, particularly
during construction. Construction effects include noise, vibration, traffic and
changes to property access and operations. During the longer term, the
primary adverse effects stem from the loss of threatened ecosystems and
vegetation in Anns Creek and lava flow vegetation along the coastal edge
of the Māngere Inlet, the permanent loss of intertidal mudflats, the loss of
other habitat that may be used by threatened bird species and changes in
the amenity and context of historic heritage features.50
4.15 As indicated earlier, these adverse effects are addressed in more detail
later in these submissions and in the Transport Agency's evidence. The
Transport Agency has sought to avoid, minimise, mitigate and offset actual
and potential adverse effects through a range of design measures and a
suite of conditions.51
5. PROJECT DEVELOPMENT
History of the Project Area
5.1 As discussed previously, an important part of the Project is how it will
transform the coastal environment and improve people's connections to it.
In order to put that transformation in context and to assist the Board's
understanding, this section of the submissions sets out an overview of the
history of the Project area.
5.2 While Onehunga is a strategic geographic location, Mr Lister aptly
describes the Project area as one that has been treated for the past 100
years as an "industrial backyard and dumping ground".52
5.3 In pre-European times the area's strategic location was evidenced by the
Kāretu and Ōtahuhu portages providing important routes from the Manukau
Harbour across the isthmus to the Waitematā Harbour. In early Pākehā
years Onehunga was Auckland's port on the Manukau Harbour and
Ōtahuhu a strategic settlement on the Great South Road to the Waikato.53
49 Priestley EIC, paragraphs 8.20-8.24; Lister EIC, paragraph 11.1(e), Linzey (Cultural values) EIC, paragraph 7.11(c). 50 Hopkins EIC, paragraph 1.4. 51 Hopkins EIC, paragraph 1.5. 52 Lister EIC, paragraph 7.1. 53 Lister EIC, paragraph 7.1.
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A fencible settlement was established at Onehunga in 1847, and
infrastructure such as jetties, wharfs, port facilities and industries were
further developed during the nineteenth century.54
5.4 This historically important landscape has been degraded over time
through:55
(a) Ad hoc reclamation and straightening of the Māngere Inlet's northern
shoreline (including by substantial dumping of municipal solid
waste);
(b) Convergence of substantial road and rail transport infrastructure as
well as other infrastructure such as electricity transmission and gas
pipe lines and major water and wastewater facilities;
(c) Industrialisation of the area;
(d) Severance of Onehunga from the Manukau Harbour, reclamation of
Te Hōpua's former tidal lagoon, industrial development and
construction of SH20; and
(e) Uncontrolled/unmanaged discharges to the Māngere Inlet.
5.5 Historical photos show that in 1949 the Māngere Inlet northern shoreline
was a mixture of headlands and embayments, with intertidal mudflats and
islets, reefs and fingers of lava.56 There were three main lobes of lava
sitting amongst inlets as far in as Neilson Street in the east, and Princes
Street in the west.57 Following reclamation of the inlets and straightening of
the shoreline by landfills, these lobes are no longer visible with the
exception of the outermost remnants of two lava flows at Pikes Point and by
Waikaraka Cemetery.58 The Project aims to rehabilitate and restore this
shoreline.
5.6 The strategic importance of the Ōtahuhu isthmus' for north-south and east-
west movements has seen key infrastructure being located in the area,
including Great South Road, the North Island Main Trunk Railway and
54 Matthews EIC, paragraph 7.3. 55 Lister EIC, paragraph 7.2. 56 Priestley EIC, paragraph 8.17. Figures 4 and 4b in Mr Priestley's evidence show the 1949 foreshore and a 1954 view from Māngere Inlet looking towards Sylvia Park. 57 Lister EIC, paragraph 7.9. 58 Lister EIC, paragraph 7.9.
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Southern Motorway (SH20). There are Transpower lines and major gas
lines within the area.
5.7 The industrialisation of the area has led to development which "turns its
back" on the Māngere Inlet.59 Te Pāpapa and Southdown were developed
in large lots for large scale industry with a coarse, non-permeable street
pattern.60 With the exception of the Waikaraka Cemetery and Park, the
current relationship of land uses with the Māngere Inlet is poor or non-
existent.61
5.8 Local roading infrastructure followed by the construction of SH20 in the
1970s also changed the landscape substantially. Te Hōpua was previously
a tidal lagoon suitable for shallow draught boats, later reclaimed in the
1930s for playing fields and then bisected by SH20 in the 1950s. The
historic sandy, west-facing beaches along Beachcroft Avenue were also
cut-off from the harbour by SH20. The Onehunga Foreshore project
responded to this separation by recreating a naturalised shoreline on
reclaimed land seaward of SH20, now referred to as Taumanu Reserve. As
Mr Lister explains similar design principles are proposed within the Māngere
Inlet as part of the Project.62
5.9 The approval and subsequent development of the Taumanu Reserve
provides an infrastructure case study for this Project. It demonstrates how
a well-designed reclamation can coexist with significant roading
infrastructure and provide a positive environmental outcome.
Strategic direction
5.10 The Project was identified as a priority by the Government in June 2013
and again in January 2016.63 The Government recognised the importance
of the economic contribution made by industrial and transport/logistics
businesses within Onehunga and Mt Wellington to support the wider
Auckland (eg East Tāmaki and CBD) and national economy (eg Hamilton
and Tauranga).
59 Hancock EIC, paragraph 10.6. 60 Lister EIC, paragraph 7.10. 61 Hancock EIC, paragraph 11.12. 62 Lister EIC, paragraph 7.6. 63 Through addresses given by the former Prime Minister, the Rt Honourable John Key to the Auckland Chamber of Commerce in 28 June 2013 and 27 January 2016.
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5.11 The need for a transport link between SH1 and SH20 to support economic
growth has been recognised for a long time, with such a link first being
proposed in the 1960s and reflected, in part, in subsequent planning
documents including the current Auckland Unitary Plan (Operative in Part)
(AUP (OP))64 (albeit in a different form to the current proposal).65 The need
for a link has been documented more recently in a number of planning and
strategic direction documents, as set out in further detail in the evidence of
Mr Gliddon.66 These include:
(a) The Auckland Plan (2012), which identifies the Project as having
high strategic importance in addressing congestion and freight
movements.67 Importantly, the Auckland Plan recognises that the
EWL is an overdue response to pressures on the Auckland transport
system and that the benefits of the Project are best realised through
the delivery of a complete project rather than incremental roading
improvements;68
(b) The 2015 – 2018 National Land Transport Programme, which
identifies the Project as a key investment route to provide more
efficient, predictable and safe freight journeys and also improved
movement of freight between road and rail;69 and
(c) The Transport Agency's Statement of Intent 2015 - 2019, which
identifies the Project as part of the Accelerated Auckland Transport
Programme (a package of works to improve congestion and safety
outcomes and support economic growth for Auckland and the
country); and
(d) The Auckland Transport Alignment Programme (2016) recognises
the EWL as part of Future Strategic Network and as a committed
project.70
5.12 In addition to these directions, the Project has been developed in
accordance with the Transport Agency's statutory functions and objectives
64 Auckland Transport Designation 1700. Mr Carter's planning evidence (Appendix 35 dated 22 October 2015) for Auckland Transport in the Topic 074 Designations as part of the Auckland Unitary Plan hearing considers that the designation will complement or partially deliver elements of the East West Connection. 65 Wickman EIC, paragraph 4.2. 66 Gliddon EIC, section 8. 67 Auckland Plan, pages 322 and 325. 68 Auckland Plan, pages 330 and 332. 69 National Land Transport programme, Auckland Regional summary. 70 Statement of Intent 2015-2019, page 26.
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and the Government Policy Statement 2015/16 - 2024/25 on land transport
funding.71
5.13 The importance of the identification of the Project within the Auckland Plan
cannot be understated. The Auckland Plan is the region's foremost
strategic spatial planning document and is intended to guide transport and
land use planning over a thirty year time period. The Project is a direct
response to the directives in the Auckland Plan and addresses a clearly
articulated transport problem. It seems that few submitters are opposed to
the need for new road infrastructure in this area. The question is not
whether new infrastructure should be built, but rather where and how it
should be built.
Corridor selection
5.14 In response to the directions provided by the strategic documents, the
Transport Agency together with Auckland Transport began the process of
confirming the need for transport investment in the EWL project area in late
2012.72
5.15 These investigations formed the East West Connections business case, a
series of iterative assessments undertaken by the Transport Agency and
Auckland Transport focused on potential investments and new projects.
The process took a broader "one network" view of the transport issues and
range of potential solutions in the wider area.73 The East West Connections
business case process and steps are explained in further detail in the
evidence of Mr Wickman.74
5.16 In summary, a business case approach to making investment decisions
involves:
(a) All relevant agencies identifying together whether there is a
transport problem and the benefits to be gained from addressing
that problem (this included a Strategic Business Case and a
Programme Business Case);
71 In particular, the objectives and functions of the Transport Agency as set out in the Land Transport Management Act 2003. 72 Wickman EIC, paragraph 4.8. 73 The East West Connections area included Onehunga, Māngere Bridge, Ōtahuhu, Penrose and Highbrook. 74 Wickman EIC, section 4.
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(b) Identifying one or more projects that address the problem (Indicative
Business Case);
(c) Detailed consideration of preferred options (Detailed Business
Case); and
(d) Each individual agency progressing individual projects (the current
Project).
5.17 During the Business Case phase the Transport Agency continuously tested
whether an investment was necessary and worthwhile. The consistent
conclusion was that the transport problems of the area could not be solved
by "doing nothing", ie by relying on other new roading projects and relying
on public transport. There clearly needed to be new roading infrastructure
– either an upgrade of the existing roads, a new route, or a combination.75
5.18 During the business case process, the Transport Agency engaged closely
with three "Project Partners"; Auckland Transport, Auckland Council and
Mana Whenua.76 The Transport Agency also worked with a number of "key
stakeholders" that represented groups/individuals with interests in the
Project and the Project area, including government, community groups,
business groups, landowners and network utilities. These key stakeholders
included Transpower, KiwiRail, the Auckland Business Forum and The
Onehunga Enhancement Society to name a few.77
5.19 Engagement with affected landowners and the public occurred during the
later stages of the East West Connections business case from mid-2014 to
late 2015 in relation to the preferred transport solutions. Ms Linzey's
evidence describes in further detail engagement undertaken at this stage in
the process.78
5.20 During this time the issues, objectives and opportunities for transport
investment in the project area were assessed and refined in an iterative
manner taking into account the feedback received.79
75 Wickman EIC, paragraph 4.14. 76 Which includes the 10 Mana Whenua Organisations that form part of the Project Mana Whenua Group, the Southern Iwi Integration Group and Mataawaka (Māori not affiliated with the Mana Whenua of Auckland). See the AEE, section 9, page 167. 77 Linzey EIC (Engagement), paragraph 8.3; AEE, Table 9-3. 78 Linzey EIC (Engagement), section 7. 79 Wickman EIC, paragraph 4.17.
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5.21 A number of alternative corridors were identified and assessed and a
Preferred Corridor identified, as explained in more detail in Part 2
section 12 of these submissions regarding alternatives. The only enduring
transport solution was provided by a new road located to the south of the
Neilson Street / Church Street Corridor.
5.22 The concept of an enduring solution was a key factor in the Transport
Agency's choice of project and Corridor and is particularly relevant to
understanding the choice of alternative corridors as explained by
Mr Murray.80
This concept of an enduring benefit is particularly important and can be easily overlooked. Enduring benefits are those that last for a number of years, typically into the medium term (10 - 20 years) rather than the short term (5 years). If a benefit is enduring then it means that future intervention or investment to solve the relevant problem can be delayed. Conversely if a benefit is not enduring it means that the problem will return in a shorter time frame. This has direct implications for how efficient and cost effective a solution is and to how well it meets the Project objectives.
5.23 The Transport Agency identified that these routes could result in adverse
environmental effects but input from Mana Whenua and number of key
stakeholders identified that a corridor for the East West Link along the
foreshore of the Inlet provided opportunities to address those effects and
restore and enhance aspects of the coastal environment.
5.24 The outcome of the East West Connections business case was the
identification of two preferred transport investment opportunities, being:
(a) The East West Link road corridor along the northern edge of the
Māngere Inlet, to be progressed by the Transport Agency. This has
developed into the current Project;81 and
(b) Frequent Network 32, which is an Auckland Transport project to
improve public transport connections between Māngere Town
Centre, Ōtahuhu and Sylvia Park. This is a separate project being
developed by Auckland Transport.82
5.25 As set out in the evidence of Mr Wickman, both of these projects were
developed to respond to and integrate with other transport projects in
80 Murray EIC (Traffic and Transportation), paragraph 6.10. 81 Wickman EIC, paragraph 4.24. 82 Wickman EIC, paragraph 7.6.
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Auckland, in particular the Western Ring Route and Auckland Manukau
Eastern Transport Initiative (AMETI).83
Project Objectives
5.26 At the conclusion of the Detailed Business Case the scope and nature of
the EWL was confirmed and the Transport Agency developed specific
Project Objectives to be used for the RMA process.
5.27 Three objectives were identified which matched the transport problems and
potential benefits identified during the business case phase.84 The
objectives align with the Transport Agency's statutory mandate and
requiring authority status.85 The Project objectives are:
(a) To improve travel times and travel time reliability between
businesses in the Onehunga–Penrose industrial area and SH1 and
SH20;
(b) To improve safety and accessibility for cycling and walking between
Māngere Bridge, Onehunga and Sylvia Park, and access into
Ōtahuhu East; and
(c) To improve journey time reliability for buses between SH20 and
Onehunga Town Centre.
6. MANA WHENUA
6.1 Mana Whenua have been a key partner in the development of the Project.
6.2 The water body of the Manukau Harbour (Te Manukanuka o Hoturoa),
including the Māngere Inlet, is of great spiritual importance to Mana
Whenua (taonga). The Māngere Inlet has a long history of Mana Whenua
use and development, including important portages between the Manukau
and Waitematā harbours.86
6.3 Intensive industrial growth in the late 18th and 19th centuries resulted in
large amounts of untreated human and commercial waste being discharged
into the Inlet.87 In addition, the development of Auckland has erased the
83 Wickman EIC, section 7. 84 Wickman EIC, section 5. 85 Gliddon EIC, section 4. 86 Cultural Values Report for the East West Link, paragraphs 1.1-1.2. 87 Cultural Values Report for the East West Link, paragraphs 1.3-1.4. This was documented in the 1985 Waitangi Tribunal Report and the resulting 1990 Manukau Harbour Action Plan.
BF\57040744\1 Page 19
visibility and legibility of their cultural landscape elements. As such, the
exercise of kaitiakitanga of the area has been limited.88 Over the last two
decades, there has been a programme to restore the life force (mauri) of
the Manukau Harbour including the Māngere Inlet.
6.4 Early engagement with Mana Whenua enabled identification and the
inclusion of values and aspirations, and where practicable, the avoidance of
adverse cultural effects through the Project design. This engagement led to
preparation of the Cultural Values Report, which Ms Linzey explains was
drafted under the direction of and endorsed by the ten Mana Whenua
groups that make up the Project Mana Whenua Group.89 The Cultural
Values Report specifically sets out the importance of the Project in
enhancing the mauri of the Māngere Inlet.90
6.5 As Ms Hancock explains in her evidence, the Transport Agency has worked
closely with Mana Whenua to embed Mana Whenua objectives in the
design vision for the Project. The three over-arching urban and landscape
themes for the Project are:91
(a) Respect the place;
(b) Restore the whenua; and
(c) Reconnect the people.
6.6 In addition to informing Project design, Mana Whenua identified a number
of potential adverse effects of importance to them. These matters have
been documented in the Cultural Values Report and include:92
(a) Increased sedimentation from earthworks;
(b) Increased stormwater discharge;
(c) Impacts on sites and values of significance;
(d) Damage to archaeological sites; and
(e) Impacts on ecology.
88 AEE, Section 12.6, page 258. 89 Linzey EIC (Cultural Values Assessment), paragraph 1.3. 90 Cultural Values report for the East West Link, paragraphs 1.7-1.14 inclusive. 91 Hancock EIC, paragraph 10.3. 92 Cultural Values Report for the East West Link, paragraph 13.3.
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6.7 The cultural values and potential effects identified by Mana Whenua have
given specific consideration in the corridor and option assessment process
and in the Project design.93 Specific examples of design responses are:94
(a) The alignment and road design for SH1 in Mount Wellington has
sought to minimise the extent of impact on the site Te Apunga o
Tainui (in the vicinity of SH1 at Mt Wellington Road and around
Panama Road);
(b) The alignment has avoided any impact on Mutukāroa – Hamlins Hill,
an Outstanding Natural Feature;
(c) The design of the road provides for a contamination containment
bund and improved collection and treatment / management of
leachate from managed and unmanaged land fill areas;95
(d) The design of the stormwater wetlands on the foreshore seeks to
better manage the quality of stormwater discharging from the wider
Onehunga catchment, while also minimising the extent of
reclamation proposed;96
(e) Acknowledging the importance of the area to Mana Whenua in the
Urban Landscape Design Framework (ULDF). This includes the
manner in which the Project is informed by Mātauranga Māori
including design processes informed by and referencing to Māori
cultural and heritage values, and alignment of the ULDF with Te
Aranga design principles;97
(f) Design of the foreshore restoration to provide for public access and
to visually integrate the coastal edge with the Manukau Harbour;98
(g) Further design work (post-lodgement) has been undertaken for the
Kāretu path, recognising the cultural and heritage values of the
93 Linzey EIC (Cultural Values Assessment), paragraph 1.5. 94 Linzey EIC (Cultural Values Assessment), paragraph 7.16. 95 Wallis EIC, paragraph 8.49 (leachate) and Williams EIC, paragraph 10.17 to 10.21 (groundwater entering the Manukau Inlet). 96 Paice EIC, paragraph 10.4 and Allison EIC, paragraphs 1.4 and 1.5. 97 Hancock EIC, paragraphs 6.3 and 7.2. 98 Lister EIC, paragraphs 8.20, 9.5 and 10.33.
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Kāretu portage (from the Māngere Inlet to Mt Wellington highway);99
and
(h) Recognising the significance of Te Tō Waka Ōtahuhu Portage by
rehabilitating Ōtahuhu Creek as a culturally important natural
waterway and acknowledging the Portage in the design of the
bridge.100
6.8 In addition to these design elements, the conditions recognise and provide
for the kaitiaki role of the tangata whenua in various ways, including:101
(a) Processes for ongoing engagement with Mana Whenua and input
into design processes, including the development of the Urban
Design and Landscape Plans;102
(b) Proposals for interpretative signage and naming, recognising
cultural heritage and values in the area;103
(c) Cultural monitoring for construction activities in areas identified by
Mana Whenua to provide appropriate methods for the ongoing
identification, assessment, management and/or protection of sites of
significance and special value to Māori, including identification of
undiscovered heritage;104
(d) Implementation of Accidental Discovery Protocols for the works;105
and
(e) Measures to monitor the environmental outcomes anticipated from
the Project and specifically monitoring of cultural values, to ensure
they are delivered in a manner that reflects cultural understanding of
the natural resources of the Māngere Inlet.106
99 The outcomes for this design and the reflection of the identified cultural and heritage values in this area are set out in the evidence of Mr Lister and Ms Hancock. These outcomes are delivered through the requirements of the Urban and Landscape Design Plans (put forward in the Conditions presented by Ms Hopkins). 100 Cultural Values Report for the East West Link, paragraph 14.5(d). 101 Linzey EIC (Cultural Values Assessment), paragraph 1.6; Linzey Rebuttal (Cultural Values Assessment), paragraph 6.4(d)(v) – 6.4(d)(vii). 102 Proposed designation condition LV.3(iii). 103 Proposed designation conditions MW.2 and LV.5. 104 Proposed designation condition MW.3 to MV.5. 105 Proposed designation condition HH.2. 106 Proposed designation condition MW.6 – MW.10.
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7. PRE-LODGEMENT PROCESSES
7.1 From December 2015 through to lodgement of the applications for the
Project the Transport Agency has undertaken an extensive process of
investigation, design and community engagement. This has involved
staged and progressive inputs from various specialists, stakeholders, iwi,
local authorities and members of the communities within which the Project
is located.
7.2 During this period, the detailed assessment of alternative alignments and
methods for undertaking the Project (within the preferred corridor) were
undertaken, together with planning, environmental assessments, further
engagement, consultation and engineering design.
7.3 The planning and environmental assessments undertaken during this phase
included:
(a) Assessing the existing environment of the Project area, including the
values, the impact and effects of the Project, as well as the
opportunities for environmental improvement, offsetting, and
avoidance, remedying and mitigation;
(b) Assessing the directions provided by national environmental
policies, in particular the New Zealand Coastal Policy Statement
(NZCPS), and determining how these applied to the Project. An
additional layer of complexity was added to this process due to
continuing developments in case law stemming from the 2014
Supreme Court decision Environmental Defence Society v King
Salmon107 (addressed further in Part 4 of these submissions);
(c) Assessing the planning framework for the Project. This included
identifying planning features of special value within the Project
corridor, relevant objectives and policies, and the notices of
requirement and resource consents necessary for the works.
7.4 The planning assessment was undertaken within the context of the legacy
Auckland regional and district plans, as well as the evolving Auckland
Unitary Plan as this progressed through the Independent Hearing Panel
107 [2014] NZSC38.
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and Council decision making process. By the time of lodgement parts of
the AUP(OP)were treated as operative.
7.5 In addition to the planning and environmental assessments, engagement
with project partners, key stakeholders and the public continued throughout
2016, as described in section 9 of the AEE and the evidence of Ms Linzey.
This engagement occurred in three broad phases, being:
(a) Phase 1: Aspirations (January 2016-June 2016). In this phase,
engagement was undertaken with key stakeholders to inform them
of the Transport Agency's aspirations for the area and consult on the
alignment options development and assessment;
(b) Phase 2: Issues and Reports (June 2016-July 2016). Engagement
was undertaken to inform potentially affected land owners of the
Project and effects, as well as seek feedback on issues and
constraints from stakeholders and the wider public of the alignment
options; and
(c) Phase 3: Land requirements (July 2016 – November 2016).
Engagement was undertaken with affected property owners in
relation to likely property requirements and to initiate PWA
acquisitions early where this was considered appropriate.108
7.6 The planning and environmental assessments and feedback from
engagement informed both the design and the assessment of alternative
alignment options within the preferred road corridor and the refinement of
the detailed design of the Project, as described in the primary evidence of
Ms Linzey and Mr Nancekivell.109 Some of the route designs and
alternatives considered by the Transport Agency stemmed from proposals
put forward during engagement, such as "Option 2" for the Neilson Street
Interchange put forward by community groups. This is addressed further in
Part 2 of these submissions in the context of Alternatives.
7.7 The outcome of the work done during this period was the selection of the
preferred Project design and package of works that were applied for in
December 2016. The expert assessments undertaken, alternatives
108 Linzey EIC (Engagement), section 8. 109 Linzey EIC (Engagement), section 8; Nancekivell EIC, section 8.
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assessment and designs developed for the new road corridor were included
in the AEE lodged as part of the application.
8. DOCUMENTATION
8.1 On 16 December 2017 the Transport Agency lodged applications for
resource consents, a notice of requirement for a designation and a notice of
requirement to alter an existing designation (the NoRs) (together, the
Applications) with the Environmental Protection Authority (EPA) in relation
to the Project. This was supported by an Assessment of Environmental
Effects (AEE), three reports and 17 technical reports.
8.2 On 8 February 2017, the Minister for the Environment and the Minister for
Conservation determined the Project to be of national significance and
directed that it be referred to this Board for determination (Attachment C).
8.3 The Applications were notified on 22 February 2017 and there were 689110
submissions received, comprising:
(a) 583 submitters who opposed the proposal in full or in part;
(b) 97 submitters who supported the proposal in full or in part; and
(c) Nine submitters who were neutral.
8.4 On 12 April 2017, the Transport Agency filed 34 statements of primary
evidence. On 20 June 2017 the Transport Agency filed 37 statements of
rebuttal evidence in response to evidence filed by submitters.111
9. THE DESIGNATIONS AND RESOURCE CONSENTS SOUGHT
The Notices of Requirement
9.1 To enable the construction, operation and maintenance of the Project, the
Transport Agency has lodged two NoRs.
Notice of Requirement 1
9.2 NOR 1 is for proposed works including:
110 This included four submissions which were received after the close of the statutory submission period and were accepted by the Board. The Transport Agency did not oppose these late submissions being accepted by the Board. 111 Noting that Mr Eynon Delamere's Mana Whenua Engagement rebuttal was filed one day later.
BF\57040744\1 Page 25
(a) A new four lane arterial road between the existing State
Highway 20 (SH20) Neilson Street Interchange in Onehunga and
State Highway 1 (SH1) at Mt Wellington;
(b) Reconfiguration of Neilson Street Interchange and surrounding
roads including a trench on the southern side with a land bridge
connecting Onehunga Harbour Road to Onehunga Wharf;
(c) Local road connections to and from the East West Link;
(d) Local road improvements including extensions to Galway Street,
Captain Springs Road and Hugo Johnston Drive;
(e) A new grade separated intersection at Great South Road/Sylvia
Park Road;
(f) New commuter and recreational cycle paths along East West Link
and connecting into the local communities; and
(g) Connection to SH1 via two new ramps south of Mt Wellington
Interchange.
Notice of Requirement 2
9.3 NoR 2 is for an alteration to existing Designation 6718. The proposed work
involves alterations to SH1 including:
(a) Widening SH1 to accommodate an additional lane in each direction
from Mt Wellington to Princes Street Interchange;
(b) A new bridge at Panama Road to accommodate the SH1 widening;
(c) Removal of the culverts over Ōtāhuhu Creek and replacement with a
bridge;
(d) Upgrade of the Princes Street Interchange; and
(e) Improved walking and cycling accessibility connecting the local
communities.
Applications for resource consents
9.4 The Transport Agency is seeking 24 resource consents:
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(a) Eight land use consents in relation to proposed disturbance of
contaminated soils, earthworks, vegetation alteration and removal,
stormwater detention and retention, industrial trade activities,
including consents pursuant to section 89 of the RMA;
(b) Six water permits for various works in water courses and associated
diversion activities, drilling of holes or bores, groundwater diversion
and takes and damming of surface water;
(c) Four coastal permits for a range of construction activities in the
CMA, and for occupation and associated uses of the CMA; and
(d) Six discharge permits for discharges of contaminants into or onto air,
land and water, impervious surfaces and the discharge of surface
water.
10. STATUTORY FRAMEWORK
10.1 This section sets out the statutory framework for the Board's decision on the
NoRs and the resource consent applications. Essentially, this provides an
overview or road map of the relevant provision. The application of this
assessment framework to the Project is discussed in Part 4 of these
submissions.
Board of Inquiry's jurisdiction
10.2 On 8 February 2017 the Minister for the Environment and the Minister of
Conservation decided that the Project was a proposal of national
significance and directed the Project to be heard by the Board of Inquiry.
10.3 The Board's jurisdiction in this matter is governed by Part 6AA of the RMA.
Under section 149P(1) the Board must:
(a) have regard to the Minster's reasons for making the direction
referring the Project to the Board. The Minister's reasons are set out
in Attachment C;
(b) consider any information provided to it by the EPA under
section 149G; and
BF\57040744\1 Page 27
(c) act in accordance with subsections (2) (in relation to the application
for resource consents) and (4) (in relation to the NoRs), each of
which is described further below.
Notices of requirement and section 171
10.4 Section 149P(4)(a) states that in considering the NoRs the Board "must
have regard to the matters set out in section 171(1) and comply with
section 171(1A) as if it were a territorial authority".
10.5 Section 171(1) provides that the Board must, subject to Part 2, consider the
effects on the environment of allowing the requirement, having particular
regard to:
(a) any relevant provisions of:
(i) a national policy statement;
(ii) a New Zealand Coastal Policy Statement;
(iii) a regional policy statement or proposed regional policy
statement;
(iv) a plan or proposed plan; and
(b) whether adequate consideration has been given to alternative sites,
routes or methods of undertaking the work;
(c) whether the work and designation are reasonably necessary for
achieving the objectives of the requiring authority for which the
designation is sought.
10.6 Section 149P(4)(b) provides that the Board may:
(a) cancel the requirement; or
(b) confirm the requirement; or
(c) confirm the requirement, but modify it or impose conditions on it as
the Board thinks fit.
Alterations to designations
10.7 Sections 168 to 181 of the RMA set out the procedure for applications
seeking to alter designations. Sections 168 to 171 apply to the alteration
BF\57040744\1 Page 28
application as if it were a requirement for a new designation. However, the
assessment required for an alteration is an assessment of the effects of the
proposed alteration, not the effects of the original designation.
Adequate consideration of alternatives
10.8 Section 171(1)(b) of the RMA requires a decision-maker considering a
notice of requirement, to have particular regard to "whether adequate
consideration has been given to alternative sites, routes, and methods of
undertaking the work". This requirement only arises where the requiring
authority does not have an interest in the land required for the work, or
where the Project is likely to have a significant adverse effect on the
environment.
Reasonably necessary for achieving the objectives
10.9 Section 171(1)((c) requires the Board to have particular regard to whether
the work and designation are reasonably necessary for achieving the
objectives of the Transport Agency for which the designations are sought.
Outline Plan of Works – section 176A
10.10 Under s176A an outline plan of work (OPW) must be submitted by the
requiring authority to the territorial authority (Council) to enable the territorial
authority to request changes before construction commences. The OPW
must show details of the work, such as the height, shape and bulk, location,
contour, access and parking, landscaping, and any other matters to avoid,
remedy or mitigate any adverse effects on the environment. The territorial
authority may request the requiring authority to make changes to the outline
plan, with a right of appeal to the Environment Court if the requiring
authority does not make the requested changes.
10.11 The Board has a power under section 149P(4)(c) to waive this requirement,
but the Transport Agency has not applied for a waiver. The Transport
Agency will submit an OPW to Council prior to the commencement of
construction of the Project and the Transport Agency's intent is that the
details in the OPW will be developed in consultation with a wide range of
parties, as reflected in the designation conditions.
BF\57040744\1 Page 29
Resource consents
10.12 Section 149P(P2) states that the Board must, when considering
applications for resource consent, “apply sections 104 to 112 and 138A as if
it were a consent authority”.
Bundling and activity status
10.13 A conservative approach has been taken for this project; all consents are
being assessed as a single bundle. This means the Project has an overall
activity status of non-complying.
10.14 For completeness, it is noted that a consent could be assessed individually
if it is limited in its scope and does not have overlapping or consequential
flow-on effects in relation to the exercise of other consents required for the
proposal.112 This may be relevant in the event the Board wished to focus
on a particular activity or location and understand the activity status and
provisions relating to that activity or location.
Gateway tests - Section 104D
10.15 The Project will require a number of non-complying resource consents,
including for reclamation, which trigger the application of section 104D of
the Act. This section restricts the ability to grant resource consent to
situations where the Board is satisfied that either:
(a) the adverse effects of the activity will be minor; or
(b) the activity is not contrary to the objectives and policies of the
operative (and proposed, if relevant) district and regional plans
(together, the gateway tests).
10.16 In accordance with the approach to bundling outlined above, all aspects of
the Project will be subject to the section 104D gateway tests. The Project
only needs to pass one of the gateway tests.
10.17 If the Board determines that the resource consents sought meet one of the
gateway tests, it must then have regard the s104 matters as set out below.
112 Darby v Queenstown Lakes District Council [2007] NZRMA 420 (ENC). The relevant rules in the Auckland Unitary Plan also contemplate a similar separation of activities that do not have overlapping effects.
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Section 104 assessment
10.18 Section 104 sets out the principal matters, subject to Part 2, which the
Board must have regard to (and other matters it must disregard) when
considering the application for resource consent and any submissions
received, being:
(a) any actual and potential effects on the environment of allowing the
activity; and
(b) any relevant provisions of:
(i) a national environmental standard;
(ii) other regulations;
(iii) a national policy statement;
(iv) a New Zealand coastal policy statement;
(v) a regional policy statement or proposed regional policy
statement;
(vi) a plan or proposed plan; and
(c) any other matter the consent authority considers relevant and
reasonably necessary to determine the application.
Section 105 and 107 considerations
10.19 Section 105(1)(c) requires the Board to consider, in relation to an
application for consent to discharge contaminants, possible alternative
methods of discharge, including discharge into any other receiving
environment.
10.20 Clause 6(1)(a) of Schedule 4 to the RMA requires the AEE for the Project to
include, for any activity that will have significant adverse effects on the
environment, a description of any possible alternative locations or methods
of undertaking the activity.
10.21 Section 105 does not require a consideration of alternative sites, except to
the extent that an alternative site provides a possible alternative method for
the discharge. Rather, the requirement to consider alternative sites or
locations derives from clause 6(1)(a).
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10.22 Section 107 restricts the ability of the Board to grant consent to discharge
contaminants or water into water, or discharge contaminants onto or into
land where the contaminant may enter water, if that discharge would give
rise to any of the effects listed at paragraphs (c)-(g). The restriction is
subject to only 3 exceptions, listed at subsection (2).
Part 2 Provisions
10.23 Part 2 of the RMA will be well known to the Board but, for completeness,
the purpose of the Act in section 5 is to "promote the sustainable
management of natural and physical resources".113
10.24 Sustainable management114 means managing the use, development, and
protection of natural and physical resources in a way, or at a rate, which
enables people and communities to provide for their social, economic, and
cultural well-being and for their health and safety while:
(a) sustaining the potential of natural and physical resources (excluding
minerals) to meet the reasonably foreseeable needs of future
generations; and
(b) safeguarding the life-supporting capacity of air, water, soil, and
ecosystems; and
(c) avoiding, remedying, or mitigating any adverse effects of activities
on the environment.
10.25 Sections 6 to 8 set out the relevant matters that the Board must consider.
For the EWL Project, the Board must recognise and provide for all the
matters of national importance listed in section 6. Similarly, the features of
the Project require the Board to have particular regard to all 'other matters'
in section 7 (except sections 7(ba), (h) and (j)). It must also take into
account the principles of the Treaty of Waitangi (section 8).
11. OVERVIEW OF ISSUES - STRUCTURE OF REMAINING SUBMISSIONS
11.1 This Project is complex. Numerous themes and issues have been raised
through submissions and evidence. The Transport Agency and its expert
witnesses have carefully considered the issues raised. A number of
matters have now been resolved in conferencing as outlined by the
113 RMA, section 5(1). 114 RMA, section 5(2).
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Transport Agency's witnesses. In addition, design refinements and
numerous condition changes have been incorporated into Project to
address various issues.
11.2 In terms of the principal outstanding issues, the legal submissions have
been structured as follows:
(a) Part 2 provides an overview of Project-wide considerations and
issues such as alternatives and transport matters. It also deals with
area or sector based issues generally moving west to east along the
Project alignment (for example, Neilson Street interchange and
Waikaraka Cemetery and Park);
(b) Part 3 provides an overview of submitter specific or site-specific
issues. This section has also been ordered moving from west to
east along the alignment;
(c) Part 4 sets out the Transport Agency's application of the statutory
assessment framework to the Project.
11.3 The Transport Agency anticipates that further site-specific matters will be
raised during the course of the hearing. It has not been practical to
canvass all issues raised in these submissions. As outlined above
however, submitter concerns have been considered by the Transport
Agency and its experts in the course of evidence preparation, conferencing
and leading into this hearing.
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PART 2
12. ALTERNATIVES
12.1 Section 171(1)(b) of the RMA requires a decision maker considering a
notice of requirement to have particular regard to "whether adequate
consideration has been given to alternative sites, routes, and methods of
undertaking the work".
12.2 This requirement only arises where the requiring authority does not have an
interest in the land required for the work, or where the Project is likely to
have a significant adverse effect on the environment. Both of these limbs
apply to the EWL.
Case Authorities
12.3 Under section 171(1)(b), the decision maker evaluates the process followed
by the requiring authority in considering alternatives:115
(a) The focus is on the process, not the outcome: whether the requiring
authority has made sufficient investigations of alternatives to satisfy
itself of the alternative proposed, rather than acting arbitrarily, or
giving only cursory consideration to alternatives. Adequate
consideration does not mean exhaustive or meticulous
consideration;
(b) The question is not whether the best route, site or method has been
chosen, nor whether there are more appropriate routes, sites or
methods;
(c) That there may be routes, sites or methods which may be
considered by some (including submitters) to be more suitable is
irrelevant;
(d) The Act does not entrust to the decision maker the policy function of
deciding the most suitable site, route or method; the executive
responsibility for selecting that site route or method remains with the
requiring authority;
115 Final Report and Decision of the Board of Inquiry into the Upper North Island Grid Upgrade Project, Ministry for the Environment, Board of Inquiry, 4 September 2009 at [177]. Cited with approval most recently in Pukekohe East Community Society Incorporated v Auckland Council [2017] NZEnvC 027, at [21].
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(e) The Act does not require every alternative, however speculative, to
have been fully considered; the requiring authority is not required to
eliminate speculative or suppositious options.
12.4 The meaning of section 171(1)(b) and its correct application has been
considered and developed further by the High Court in the Queenstown
Airport116 and Basin Bridge decisions.117 These decisions establish the
following principles relevant to the Project:
(a) The adequacy of the consideration of alternatives will be influenced
to some degree by the extent of the land requirements or level of
significant adverse effects, and may require a more careful
consideration as the level of either of these consequences is
increased;118 and
(b) Section 171(1)(b) does not require a full evaluation of every non-
suppositious alternative with potentially reduced effects.119
12.5 The Basin Bridge decision also addressed the approach of using a Multi-
Criteria Analysis (MCA) to evaluate alternatives. The High Court supported
an approach that provides the following:120
(a) An MCA analysis of alternatives should be transparent or replicable;
(b) If any weightings are applied to the "raw" MCA scores, it may be
necessary for those weightings to be available to the decision maker
in order to be satisfied that adequate consideration has been given
to alternatives;
(c) If weightings are used in an alternatives assessment (such as an
MCA) they should be "infused" with Part 2 matters and decisions to
allocate weight to different evaluative criteria is subject to Part 2.
Alternatives Process for EWL
12.6 The alternatives process for the EWL has been robust, consistent and
replicable.121 It has been iterative, based on an evaluation of options in
116 Queenstown Airport Corporation Limited v Queenstown Lakes District Council [2013] NZHC 2347. 117 New Zealand Transport Agency v Architectural Centre [2015] NZHC 1991. Also known as the Basin Bridge decision. 118 Queenstown Airport Corporation Limited v Queenstown Lakes District Council, at [121]; Basin Bridge, at [140]. 119 Basin Bridge, at [152] to [156]. 120 Basin Bridge, at [175] – [198]. 121 Linzey (Alternatives) EIC, paragraph 1.5.
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increasing detail as the design detail has progressed and with greater
understanding of the effects of each option.122 It has been a collaborative
process involving specialists assessments, consultation with landowners
and involvement of Mana Whenua and key stakeholders such as Auckland
Transport.123
12.7 The detailed explanation of the assessment of alternatives for the corridor
and alignment options is set out in Part D Consideration of Alternatives of
the AEE, along with the supporting material in Report 1 of the AEE.124
Ms Linzey's evidence summarises the process used and responds to
certain submissions and evidence.
12.8 The consideration of alternative sites, routes and methods commenced
once the Transport Agency identified the need for new transport
infrastructure. This new roading, walking and cycling infrastructure is the
"work" against which alternatives needs to be consideration by the requiring
authority.
12.9 The identification of the preferred route for the EWL and the assessment of
alternative routes involved a number of key steps:125
(a) Long-List Corridor Options, evaluating 16 corridor options to identify
a short list of 6 corridor options;
(b) Short-List Corridor Options, evaluating the 6 short list corridor
options to identify a preferred corridor;
(c) Amendments to the Preferred Corridor; and
(d) Alignment Options (within the Preferred Corridor).
12.10 At each main stage of the process, MCAs were undertaken to consider the
options. At each stage of the process a suitable range of options was
considered.126
12.11 The MCA assessments used 22 different criteria and related measures,
which were then scored by the people with appropriate expertise on a
122 Linzey (Alternatives) EIC, paragraph 1.2. 123 Linzey (Alternatives) EIC, paragraph 5.7. 124 AEE Report 1, Supporting Material for the Consideration of Alternatives. 125 Linzey (Alternatives) EIC, paragraphs 1.2 and 1.4. 126 Unless it was clear that there were no other feasible alternatives, this included consideration of the alignment through Sylvia Park Road and onto the connection with SH1.
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consistent 11-point scoring guide to accompany the MCA matrix.127 Those
criteria identified a wide range of relevant matters.
12.12 The purpose of the MCA assessment was not to identify a particular option
but to inform the decision makers (ie the Transport Agency) of the relevant
merits of competing options.128 The MCA process was therefore a tool to
gather information and not a substitute for decision making. The process to
identify a preferred option (especially in relation to the Preferred Corridor)
included consideration of "contextual factors", which were important factors
or desirable outcomes that might have been "lost" within the detail of the
MCA analysis.129
12.13 The options assessed in each MCA, the criteria used and the scoring that
each option received are outlined in detail within the AEE, along with a
description of why certain options were recommended over others. The
process is transparent and could be replicated.
12.14 In addition the process involved:
(a) Consultation and engagement with Mana Whenua, key stakeholders
and landowners, where possible, to gain information on the impacts
of certain options; and
(b) Reconsideration and even redesign of options in light of that
consultation (including working with community groups like The
Onehunga Enhancement Society to develop specific options).
12.15 Weightings were applied to the MCA scores when the Transport Agency
considered the alignment options. This was to sensitivity-test the MCA
results and ensure that Part 2 matters were adequately identified and
assessed. A range of weightings (which emphasised different criteria) were
used, but in nearly all circumstances the weighting made little substantive
change to the outcome of the MCA.130
127 Linzey (Alternatives) EIC, paragraphs 5.7, 6.3 and 6.4. 128 Linzey (Alternatives) EIC, paragraph 1.5. 129 Murray (Traffic and Transportation) EIC, paragraph 6.5. 130 Linzey (Alternatives) EIC, paragraph 7.10.
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Alternatives – Preferred Corridor
12.16 The Short List Corridor Options included:131
(a) Option A – Upgrade Neilson Street/Church Street Corridor with
freight lanes:
(b) Option B – Upgrade Neilson Street/Church Street with new SH1
ramps at South Eastern Arterial / SH1 Interchange;
(c) Option C – This option proposed a new connection from Onehunga
Harbour Road to Galway Street, an upgrade of Neilson and Angle
Streets and Sylvia Park Road, and a new connection from Angle
Street to Sylvia Park Road (through MetroPort and Anns Creek) and
to SH1. A sub option involved a coastal route to the west of
cemetery that avoided the MetroPort area;
(a) Option D – This option proposed an upgrade at Gloucester Park
interchange with a new connection from Onehunga Harbour Road to
Galway Street. The remainder is the same as Option C;
(b) Option E – Full Foreshore route with structure across Anns Creek
estuary via Vesty Drive area to a new interchange at Panama Road;
and
(c) Option F – Partial Foreshore route with inland component through
Pikes Point, via Anns Creek East and Sylvia Park Road to SH1 at
existing Mt Wellington interchange.
12.17 Option F was identified as the preferred corridor option:
(a) A new corridor south of Neilson Street was necessary to provide
improved motorway access to SH1 and SH20 without compromising
local business access.132
(b) The project objectives would not be achieved with Options A, B, C
and D because those routes did not provide enduring transport
benefits. This means that they would become congested again
131 AEE Section 8: Consideration of Alternatives, Table 8-2. 132 Murray (Traffic and Transportation) EIC, paragraph 6.15.
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within the short to medium term and would not provide a long term
solution to the transport problems.133
(c) The MCA scores for Option C were, on the face of them, better than
Options E and F but the contextual factors were important to identify
that Option C was not a long term solution.134
(d) As a result both Options E and F, with full foreshore routes, met the
objectives.
(e) Option F was recommended for further assessment since it had
lesser overall environmental effects than Option E and modelling
showed that additional works would be required in the future.135
12.18 Before confirming the Preferred Corridor the Transport Agency reviewed
Option F to see what improvements or alterations could be made to
improve its performance and reduce the adverse effects.
12.19 The Transport Agency identified that there were potential significant
adverse effects from a coastal route (which would have applied to Options
E and F). However, key stakeholders, particularly Mana Whenua, identified
to the Transport Agency that some of those effects could be addressed and
mitigated through a fully coastal route that allowed for the containment of
leachate and improvements to water quality.136
Preferred Alignment
12.20 Various submitters have challenged the adequacy of the alternatives
assessment.137 However, most of these are concerned about the proposed
alignment on a specific site or sector. No party has challenged the process
used by the Transport Agency or suggested that only arbitrary or cursory
consideration was given to a particular option.
12.21 Once the Preferred Corridor was identified, a series of alignment options
were considered in the context of the various sectors.138 Different
133 Murray (Traffic and Transportation) EIC, paragraph 6.22. 134 Murray (Traffic and Transportation) EIC, paragraphs 6.16 to 6.18. In particular the need to have enduring benefits. 135 Murray (Traffic and Transportation) EIC, paragraphs 6.19 and 6.22, and Linzey (Alternatives) EIC, paragraph 6.11. 136 Linzey (Alternatives) EIC, page 44 (Extract from Assessment of Effects on the Environment Report) and Wickman EIC, paragraph 4.22. 137 Stratex Group Limited, T&G Global Ltd, Auckland Heliports Limited Partnership, Mercury NZ Limited, Ports of Auckland, TOES, Ngāti Whatua Orakei, Campaign for Better Transport. 138 Sector 1 (Neilson Street); Sector 2 (Foreshore), Sector 3 (Anns Creek), Sector 4 (Sylvia Park Road), Sector 5 (Princess Street).
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alignments were developed and assessed through the same MCA and
decision making process as was undertaken in respect of these corridor
options.
Preferred Alignment Foreshore Sector
12.22 The foreshore alignment included consideration of a large number of
different designs with varying amounts of reclamation and locations of
stormwater wetlands, inland alignment options and a coastal bridge
option.139
12.23 The Transport Agency has been conscious at all times of the Project's
development about carefully considering alternatives to reclamation in light
of the potential adverse effects arising from reclamation and the statutory
direction to minimise reclamation. (Options C and D within the short list
involved an inland route and a variant along the coast). During the
alignment process inland and coastal bridge options were specifically
considered to ensure that the coastal route and reclamation were the best
option.
12.24 The MCA process identified that a coastal bridge option could not deliver
the necessary connections to the local road network . Both routes had the
potential to sever large areas of economically productive land and
potentially make them unviable. Both options had significant adverse
effects related to land take, natural character and public access. The
bridge option has very limited opportunities to address those adverse
effects, while the inland option still required some ‘foreshore restoration’ to
address the adverse effects.
12.25 The Project team therefore concluded that the foreshore reclamation
achieves a number of positive environmental outcomes including
contamination containment, rehabilitation and restoration of the natural
character of the coastal environment, public access to and along the CMA
and improvement to water quality discharges.140 Inland and coastal bridges
did not have those benefits and had significant effects of their own.
12.26 After a reclamation solution was settled on, there was further design
development to shift the carriageway of the Project inland to reduce the
139 Linzey (Alternatives) Rebuttal, paragraph 4.5. 140 Linzey (Alternatives) Rebuttal, paragraphs 1.2(a) and 4.7 to 4.9.
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extent of reclamation required for the road by some 5.7ha, with the
remaining larger area providing for the restoration, access and improved
water quality outcomes of the Project.141
12.27 The design of the reclamation is discussed in more detail below under the
key issue of extent of reclamation.
Preferred Alignment – Anns Creeks and Great South Road
12.28 The Preferred Corridor of Option F involved a route between the northern
foreshore of the Inlet and Sylvia Park Road. From an early stage in the
consideration of alternatives, the Transport Agency identified that this part
of the route involved a number of constraints, including Significant
Ecological Areas, Outstanding Natural Features, infrastructure, and
privately owned, industrial land. All routes needs to connect safely and
efficiently to Great South Road and Sylvia Park Road. The Preferred
Alignment has needed to take into account all these competing constraints.
12.29 The scale and nature of the potentially significant impacts identified in the
initial Anns Creek MCA workshop evaluation resulted in further design
option development and revision, followed by a second evaluation
workshop.142 An early draft alignment was located along the northern shore
of Anns Creek Estuary but KiwiRail advised the Transport Agency that this
route significantly affected its existing designation and future development
aspirations. As a result the route was amended to cross Anns Creek
Estuary and to cross the railway line at a different location that was
consistent with KiwiRail's future development.
12.30 Further design alignment refinement was undertaken, for example through
the identification of an area in Anns Creek where construction should be
restricted.143
Mercury
12.31 Mercury's position is that the Transport Agency needs to revise its
assessment of alternatives to adequately consider the nationally significant
infrastructure it says it has within the Southdown Site. It asks the Board to
either modify the alignment to avoid the site completely, or modify in order
141 Linzey (Alternatives) Rebuttal, paragraph 4.10. 142 Linzey (Alternatives) EIC, paragraph 7.4. 143 Linzey (Alternatives) EIC, paragraph 7.6.
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to achieve sufficient clearance between the road structure and the
Southdown Power Station.144 It claims that there has been significant
shortcomings of the MCA process in relation to the site.145
12.32 As set out in the evidence of Ms Linzey and Mr Wickman, the Transport
Agency has actively engaged with Mercury in relation to the Southdown site
throughout the development of the Project, with the potential impact of the
Project on the Southdown site being a key consideration which has been
factored into the iterative stages of the alternatives assessment and project
design.146 This has included the development of options to minimise the
impact of the Project on the Southdown site (based upon input from
Mercury's representatives) and the development of a route to enable the
infrastructure value of the site to be retained, while recognising the need to
balance this with potentially significant adverse ecological and natural
feature effects identified through the nearby Anns Creek.147 The potential
impact on utilities and infrastructure have been considered at each stage of
the process.
Grade Separation of Great South Road intersection
12.33 In the same way that the draft alignment in Anns Creek was amended
following consultation, additional evaluation and MCA processes were
undertaken for an alternative Great South Road alignment that would grade
separate the intersection between Great South Road and the EWL.148 This
assessment indicated that a grade separated intersection would have
improved transport performance and overall was a better option.
12.34 Subsequent to these assessment processes, there has been more detailed
option assessment, for example for construction methods and some design
details.149
Preferred alignment – State Highway 1
12.35 The submission from T&G Global, while broadly supportive of the Transport
Agency’s objectives for the Project, has opposed the Project due to the
significant impacts on its site. In particular, it submits that there are two
144 Grala (Mercury, Planning) EIC at paragraph 6. 145 Grala (Mercury, Planning) EIC at paragraph 48. 146 Linzey (Alternatives) Rebuttal, at section 9; Wickman Rebuttal, at section 6. 147 Linzey (Alternatives) Rebuttal, paragraph 9.3. 148 Linzey (Alternatives) EIC, paragraphs 8.1 and 8.3. 149 Linzey (Alternatives) EIC, paragraph 4.3.
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alternative options that would not cause significant impacts on their site,
being Short-List corridor options A and E. It further submits that had the
impacts on the T&G Global site been adequately assessed, the current
alignment option would not have been selected.150
12.36 T&G Global's concerns regarding the selected alignment option arise from a
concern about its ability to continue to operate its business efficiently, both
during and after construction, due to the footprint required by the Project.151
12.37 Ms Linzey's evidence responds to this submission, noting that Short-List
Option A was not selected because it did not meet some of the Project
objectives or perform well from a transport perspective.152 In terms of
Short-List Options E and F, Ms Linzey acknowledges that both of these
options scored negatively for business disruption in the MCA, but the
potential adverse effects of Short-List Option E were greater due to both
potential business disruption and potential severance of established
business in the Vesty Drive area.153
12.38 The issue of business disruption, including on the T&G Global site, was
therefore assessed as part of the consideration of alternative options.
Although the outcome is opposed by T&G Global the process was sound,
and more than adequate. Option E did not have lesser effects than Option
F and in fact had many of the same types of effects, but on other
businesses. These matters were appropriately identified and evaluated in
the MCA process and this information (including potential significance of
effects on business land) informed the selection of the preferred option.154
12.39 During the consideration of the alignment options, a number of constraints
were identified within this area, including Transpower's 220kV transmission
line and the connection point to SH1.155 Minimum design requirements for
safe on and off ramps at expected speeds also limits options to completely
avoid encroaching on to T&G Global's site.156
12.40 The Transport Agency considers the consideration of alternatives in relation
to this site was sound.
150 Submission 126322. 151 Nancekivell EIC, paragraphs 15.69 - 15.70. 152 Linzey (Alternatives) EIC, paragraph 10.14. 153 Linzey (Alternatives) EIC, paragraph 10.14. 154 Linzey (Alternatives) EIC, paragraph 10.15. 155 Linzey (Alternatives) EIC, paragraph 10.14. See also Nancekivell EIC, paragraph 15.70. 156 Nancekivell EIC, paragraph 15.71.
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Preferred alignment – Neilson Street
12.41 The majority of the Short List options involved new interchanges and links
around the existing Neilson Street interchange (also referred to as
Sector 1). These works are necessary to facilitate the links between the
ELW and SH20, in both directions.
12.42 During the development of the alignment phase four options were initially
developed and considered. One of the options (Option 2) was based on a
design proposed by The Onehunga Enhancement Society (TOES). It was
labelled in the MCA process as the "TOES Option". Other options included
a design based on the Option F layout (Option 1) and two "free flow"
options which addressed some potential issues in the Option F layout
(Option 3 and 4). All the options were subject to an MCA process and then
consideration by the Project team, and Option 4 was identified as the
preferred alignment.157
12.43 Following public consultation on the draft alignment the Transport Agency
continued to consult with community groups including TOES and a further
conceptual design was proposed by OBA. This design was based on the
TOES option but had a number of amendments to improve traffic
performance and reduce adverse effects. The Transport Agency, at its own
cost, developed this to a level of detailed design, with appropriate geometric
and engineering input (this is referred to as the OBA Option). This detailed
design was developed to the same level of detail as Options 1 – 4.158
12.44 The Transport Agency then reviewed the OBA Option to identify any
differences from Option 2 and whether the OBA Option was superior to the
chosen Option 4. The conclusion was that Option 4 was still the superior
alignment.159
12.45 The OBA and TOES then raised concern that the Transport Agency had not
adequately considered that OBA Option. To address that concern the
Transport Agency:
(a) Engaged Mr Bauld to conduct a peer review of the process used by
the Transport Agency. Mr Bauld's conclusion is that "MCA scoring
criteria, weighting and scores all provided a reasonable comparison
157 Assessment of Environmental Effects section 8.4.2.3, as referred to in Linzey (Alternatives) EIC, Attachment C. 158 Linzey (Alternatives) EIC, Attachment E. 159 Ibid.
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of the options. I did not identify any areas that would have changed
the outcome of the selection process";160
(b) Undertook a further MCA on the OBA option with a range of relevant
experts.161
12.46 One of the principal concerns raised in the TOES submission relates to the
Transport Agency's consideration of the OBA Option (also referred to by
some submitters as the TOES Plan or the "Community Plan") for the
Neilson Street Interchange area.
12.47 This concern is unfounded as the Transport Agency has worked closely
with TOES to prepare not one, but two, options for consideration. Those
options have been fully and fairly reviewed by independent experts and that
process was peer reviewed by another independent expert.
12.48 The evidence for Mr Mead, on behalf of TOES,162 makes various comments
on the scores assigned to various criterion within each of the assessments
undertaken by the Transport Agency. Ms Linzey refutes those specific
matters,163 but Mr Mead does not appear to be have any concern about the
criteria and weighting used, the process undertaken or the design used for
the assessment. A difference of opinion regarding certain scores does not
make the process inadequate or amount to arbitrary or cursory
consideration of alternatives.
12.49 The TOES/OBA Option has received extensive and careful consideration
and been shown to have poorer outcomes that the EWL design. That
consideration was significantly more than "adequate".
Benefit Cost Ratio
12.50 Some submitters (such as the Campaign for Better Transport) have
questioned the selection of the Preferred Corridor on the basis of the
Benefit Cost Ratio (BCR) for the Project compared to other options.
12.51 The BCR is a tool that the Transport Agency uses to assist with the
allocation of funding.164 It is one component of the business case
approach, along with strategic fit, effectiveness and the results of the MCA,
160 Bauld EIC, para 1.4. 161 Linzey (Alternatives) EIC, Attachment F. 162 Mead EIC, paragraphs 93 102. 163 Linzey Rebuttal, section 7. 164 As noted by the Peka to North Otaki Expressway Board of Inquiry's decision, paragraph 312.
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amongst other things. Therefore any consideration of the BCR must be
undertaken in the round.165 It would be simplistic and inadequate in terms
of s171 RMA, to consider options only based on the BCR and the Transport
Agency did not do that in this situation.
12.52 Other submitters have criticised the Transport Agency for not providing an
updated BCR or have used the 2015 BCR as a measure of economic
wellbeing. Again, it must be emphasised that the BCR is not a tool
designed or intended to assess economic wellbeing.
12.53 It is a model which takes modelled traffic time savings and converts them
into Net Present Value (NPV). It then compares that to the estimated cost
of construction. Both the model and its NPV use a number of assumptions
to supply the real world conditions. The extent and limitations of the model
is intended and is indeed only used to allow a comparison between options
not to evaluate all economic and social benefits. That is for the broader
justification for government investment.
12.54 A BCR assessment is limited by the fact that it is difficult to quantify and
assign monetary value to a number of key positive environmental
opportunities present in the Project, including stormwater treatment
improvements, increased public access to the coastline and broader macro-
economic benefits. As discussed by Ms Linzey, these environmental
considerations were captured and assessed in the MCA assessments that
the Transport Agency undertook at various stages during the development
of the Project.166
12.55 The RMA does not require projects to meet any specific cost benefit
threshold before they can legitimately be designated or consented. The
High Court has held that:167
[…] decisions on the cost and economic viability, or profitability, of a project must sensibly be regarded as decisions for the promoter of the project. Otherwise, the Environment Court will be drawn into making, or at least second-guessing, business decisions. That is surely not its task.
12.56 Additionally, the High Court in Meridian held that consideration of whether a
Project is an efficient use of resources does not require the Project to be
the most efficient use of resources as follows:168
165 Wickman EIC, paragraph 4.6. 166 Linzey (Alternatives) Rebuttal, paragraph 1.2(f). 167 Friends and Community of Ngawha Inc v Minister of Corrections [2002] NZRMA 401 at 20.
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We do not think s7(b) (or Part 2 generally) was intended to give to decision makers under the RMA the power to make judgments about whether the value achieved from the resources that are being utilised is the greatest benefit that could be achieved from those resources or whether greater benefits could be achieved by utilising resources of lower value or a different set of resources.
12.57 The legal position was confirmed by the Peka to North Otaki Expressway
Board of Inquiry, which noted that, following the High Court decision of
Queenstown Airport Corporation,169 although the BCR may be a factor in
determining whether alternatives have been adequately considered and
whether a proposal amounts to an efficient use of resources (under
sections 7(b) and 171(b) of the RMA), it is not required to be considered.170
12.58 Given these constraints and the fact that Project cost to the Transport
Agency is not a relevant RMA matter, it is inappropriate to use the BCR as
a means of calculating economic wellbeing171 or the economic and
environmental justification for the Project.
12.59 In summary, the Transport Agency submits that:
(a) The RMA does not require the Project to be the "best" and most
economical option. It is for the Transport Agency to determine its
investment priorities, having regard to its statutory mandate and
obligations. In this case the Transport Agency is confident the EWL
is the best option when all factors are taken into account;
(b) The BCR is only relevant to the consideration of alternatives in the
context of the EWL;
(c) For the Project, the BCR was one factor of many in identifying the
Preferred Corridor; and
(d) The BCR is not relevant to the assessment of the Project by the
Board in any other context.
13. TRANSPORT AND TRAFFIC – PROJECT WIDE
13.1 The key transport components have been already outlined within the
description of the Project above and can be shown on the various plans.
168 Meridian Energy Limited v Central Otago District Council [2011] 1 NZLR 482 (HC) at 120. 169 Queenstown Airport Corporation Limited v Queenstown Lakes District Council and Air New Zealand Limited [2013] NZHC 2347. 170 Peka to North Otaki Expressway Board of Inquiry's decision, paragraph 311. 171 Williamson Rebuttal, paragraph 7.5.
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13.2 These works respond to a number of existing and future traffic and
transportation issues that were identified in the Project area during the
business case and pre-lodgement assessments phase. These have been
outlined in Part 1 of these submissions.
13.3 The current issues faced by the network constrain opportunities for growth
in public transport access, business development and rail freight
distribution.172 Without intervention, these access problems will be
exacerbated in the future due to the significant growth projections for
Auckland and the pressures this will place on the transport network.
13.4 A comprehensive assessment of the transport effects has been undertaken
by the Transport Agency and outlined within the AEE and the evidence of
Mr Andrew Murray. His methodology includes the use of a number of
regional level models and then area specific traffic models.173 The overall
methodology for the transport assessment, including the modelling and
associated benefits, has not been refuted by the transport experts. Some
local modelling queries or issues were raised in Onehunga and Mt
Wellington, however the results of the modelling have not been materially
disputed.
13.5 The EWL will result in significant transport improvements in travel time and
travel reliability:
(a) Significant travel time savings for business vehicles accessing the
Onehunga-Penrose industrial area to the strategic network,
including:
(i) Reductions accessing SH1 north of up to 6.3 minutes (37%);
(ii) Reductions accessing SH1 north of up to 18 minutes (68%);
(iii) Reductions accessing SH20 north of up to 4.1 minutes
(43%);
(iv) Reductions accessing SH20 south of up to 6.5 minutes
(48%);
(b) Improved journey times over a wider area are also expected,
including up to 9 minutes between SH20 and Highbrook, 3 minutes
172 Murray (Traffic and Transportation) EIC, paragraphs 1.2(f) and 9.44(e). 173 Murray (Traffic and Transportation) EIC, paragraphs 8.8 to 8.14.
BF\57040744\1 Page 48
between Royal Oak and the Airport and up to 5 minutes between
Pakuranga and the Airport; and
(c) Significant improvements in the consistency and reliability of access
is also expected, including the range of travel times (across the
directions and times of day) accessing SH1 south reducing from
16 minutes to 2 minutes. The more consistent and reliable access is
expected to allow improved and more flexible journey and logistics
planning and result in increased freight efficiency.174
13.6 Based on these benefits, Mr Murray’s conclusion is that the Project strongly
achieves its objectives, and results in substantial benefits to both the local
area and wider network.175
13.7 These significant benefits are not disputed by any other traffic experts.
Mr Tindall, traffic expert for the Auckland Council, concurs that the Project
will deliver the intended benefits and is well aligned with the Auckland
Plan.176
13.8 The Board can have a high level of confidence that the Project will deliver
significant transport improvements that will not be achieved by any other
means.
13.9 These benefits can only be achieved by constructing the entire length of the
proposed route with all the necessary connections as part of one project.
For this reason each and every part of the route is necessary to achieve
those benefits and the objectives of the Project. Although minor design
amendments can be accommodated within the designation footprint,
substantial changes or deletions could undermine the efficient and
integrated operation of the whole route and put at risk the achievement of
benefits.
Walking, Cycling and Connectivity
13.10 The Description of the Project has outlined a number of the new additional
walking and cycling connections. To recap, the Project will deliver the
following improvements to the walking and cycling network:177
174 Murray (Traffic and Transportation) EIC, paragraph 1.5. 175 Murray (Traffic and Transportation) EIC, paragraph 1.14(e). 176 Tindall (Auckland Council, Traffic) EIC, paragraphs 3.2-3.3. 177 Murray (Walking and Cycling) EIC, paras 1.4-1.7.
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(a) The Project proposes creating over 25km of new or enhanced
walking and cycling facilities, and improves connectivity on the key
links in the network, with over 3km of walking and over 5km of
cycling gaps in the network being completed;
(b) The Project will significantly improve safety and accessibility for
cycling and walking between Māngere Bridge, Onehunga Town
Centre and Sylvia Park Town Centre by providing high quality, off-
road and continuous links connecting these key destinations;
(c) New and enhanced north-south connections will improve
connectivity to the Māngere foreshore from the residential
communities north of Neilson Street, including at Onehunga Mall
and Alfred Street; and
(d) There will also be significant connectivity and safety improvements
for the communities of Ōtāhuhu East.
Submitter concerns
13.11 A number of the submissions received on the Project raised traffic and
transport concerns, although all the transport evidence relates to site or
area specific matters. Many of the issues raised were the subject of
agreement at expert conferencing and a large number of agreements were
reached.178
13.12 A number of the residual concerns from Auckland Transport, Panuku and
Auckland Council were addressed through conferencing and the exchange
of rebuttal. Of particular interest to Panuku is the road and intersection
design for the Galway Street and Galway Link area. The Transport Agency
has agreed with those parties that alternative designs for these roads will
be investigated during the detailed design phase, including whether the
roads have capacity to service any additional traffic travelling to and from
the Wharf.
178 Attendees were: Andrew Murray, Darren Wu and Noel Nancekivell (Transport Agency), David Smith (Panuku/Auckland Council), Duncan Tindall (Auckland Council), Michael Davies (Auckland Transport), Ian Carlisle (Mercury NZ Ltd), John Parlane (Kiwi Property Group Ltd), John Burgess (Tram Lease and Sanford Limited, Bryce Hall (Turners and Growers), Don McKenzie (POAL) and Kathryn King (Auckland Transport).
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13.13 The outstanding issues are addressed in detail by Mr Murray:179
(a) Precluding future development of the Mass Rapid Transit: A
number of lay submitters are concerned that the EWL precludes rail
to the Airport. Mr Murray and Mr Nancekivell confirm that the
Project will not preclude Mass Rapid Transit to the Airport and in fact
the EWL has been designed in close consultation with Auckland
Transport to ensure this can happen;180
(b) Inefficient road connections: A number of submitters suggested
that the Project provides inefficient connections to the existing
network. More direct connections were considered, but when
measured against the relevant criteria, were not favoured. In the
Transport Agency's view, the Project represents an efficient solution
due to the provision of effective connections, a separation of local
and industrial traffic, and improved local access roads;
(c) Additional road connections or design changes: The additional
road connections or design changes sought by submitters are wide-
ranging, as detailed in Mr Murray's evidence.181 Mr Murray
responds to each of these, identifying why the changes are not
considered appropriate, and/or how the concerns that have been
identified have already been addressed as part of the Project;
(d) Vehicle access to Onehunga Wharf: Submitters raised concerns
about access to Onehunga Wharf, but Mr Murray has confirmed that
safe and efficient access to the Wharf will be provided to all sized
vehicles and vehicles from all directions;182
(e) Traffic impact of EWL on Onehunga Town Centre and Local
Streets: Submitters have commented that the Project will result in
increased traffic and/or congestion in and around Onehunga. The
Transport Agency strongly disagrees with this, and as Mr Murray
has identified, one of the key design criteria of the Project was to
reduce traffic flows in Onehunga.183 The EWL and associated
179 Murray (Traffic and Transportation) EIC, section 19. 180 Murray (Traffic and Transportation) EIC, paragraph 1.4 and 1.9; Nancekivell EIC, paragraph 8.2. 181 Murray (Traffic and Transportation) EIC, section 20; Murray Rebuttal, sections 5 - 28. 182 Murray (Traffic and Transportation) EIC, paragraphs 19.20 - 19.22; Murray Rebuttal, paragraphs 5.1 - 5.2. 183 Murray (Traffic and Transportation) EIC, paragraphs 19.23 - 19.26.
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Galway Street extension provide direct access from SH20 to the
industrial area, which removes that traffic from local streets;
(f) Access movements for properties on Sylvia Park Road: A small
number of submitters are concerned with the impact of the Project
on access movements to properties on Sylvia Park Road. Mr Murray
recognises that some movements on Sylvia Park Road may result in
slightly longer journeys of typically 1 – 2 minutes.184 The worst case
scenario185 for the owners of 8 Sylvia Park road is that there could
be extra travel time of 2-7 minutes for certain movements. However,
this will be off-set by reduced travel times accessing Sylvia Park
Road from the wider network.186 The Project will also provide safe
pedestrian crossing over Mt Wellington Highway and provides a
direct path into the Sylvia Park centre.
13.14 Site-specific submissions (Stratex, Tram Lease, Sylvia Park Road owners
and occupiers, the Pacific Business Centres Association, and Kiwi Property
Group and Sylvia Park Business Centre Ltd) have raised concerns primarily
about the impact of the Project on access to their sites (both during
construction and when operational). These are discussed in Part 3 of these
submissions in response to individual submitters.
Benefits of improvements to the transport system
13.15 The Project area (Onehunga, Penrose, Mt Wellington and Ōtāhuhu) is the
main industrial, transport and distribution hub for both Auckland and the
upper North Island.187 The economic contribution of the area is regionally
and nationally significant, generating approximately $4.7 billion of output in
2012, or 7.5 percent of Auckland’s total gross domestic product.
13.16 The additional transport capacity provided by the EWL will support growth
of the economies of both the Project area and Auckland, and will deliver
economic benefits for Auckland and for regions of New Zealand. Reducing
travel times and improving connectivity between firms and markets, locally
and between regions, and between workers and jobs will support a range of
economic benefits including increased business productivity and reduced
184 Murray (Traffic and Transportation) EIC, paragraphs 19.27 - 19.30. 185 In the event that an internal accessway is removed between 8 Sylvia Park Road and 1 Pacific Rise, which would mean that the owners and occupiers of 8 Sylvia Park Road would only have left in and left out access to their property. This is explained in more detail in Mr Murray's rebuttal evidence, section 24. 186 Murray (Traffic and Transportation) EIC, paragraph 19.29. 187 Williamson EIC, paragraph 1.1.
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operating costs. These improvements can support increased returns to
business and provide incentives to increase output and investment.188
(a) In Onehunga-Penrose, improved accessibility into, through and from
the area provided by the EWL, combined with access to the rail
freight hub is expected to encourage transport and logistics firms to
further expand their activities to take advantage of this unique set of
circumstances;
(b) The area’s proximity to the industrial belt of the region which
extends roughly from the Rosebank area in the west through to East
Tamaki in the southeast, is likely to stimulate further developments
in storage and distribution;
(c) Lower traffic volumes through the Onehunga Town Centre will
provide the potential to support urban regeneration of this area, in
conjunction with improved bus travel times;
(d) For Mt Wellington, the wider level of complementary activities make
this a particularly attractive location for the development of business
services, particularly to serve the growing needs of the industries
there and possibly further west;
(e) Historic growth in this sector has been strong, and this is likely to
continue over the short-term at least. Improved access for
commuters provided by the EWL (including an expected 11%
reduction in traffic on Mt Wellington Highway) is expected to support
this pattern of growth; and
(f) Ōtāhuhu is expected to benefit from improved access to the
strategic highway network, particularly SH20, complementing access
to rail, resulting in further growth in wholesaling and transport activity
within the area.
13.17 The economic experts agreed at conferencing that the Project area
contained substantial economic activity and that the Project would reduce
travel times and improve travel reliability thus supporting a wide range of
economic benefits.189
188 Williamson EIC, paragraphs 1.8 - 1.9. 189 Joint Witness Statement for Economic Conferencing, paragraphs 1.6-1.12.
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13.18 The economic benefits arising from the travel time improvements were
quantified by the Transport Agency in December 2015, based on the design
at that time, using the Transport Agency Economic Evaluation Manual as
being $1.74 billion.
13.19 There will be economic costs to people and communities arising from the
effects of the construction and operation of the EWL. These economic
costs are relevant to the Board's consideration of the EWL. These effects
have been identified and assessed as part of the AEE. The Transport
Agency has not quantified those economic costs (or the economic benefits
of the current proposal) due to the complexity of such a task, the outputs of
which would be an "extraction of reality" rather than an exact calculation of
all economic costs and benefits.190 There is also no requirement under the
RMA to have quantified such costs and benefits and a qualitative
assessment is adequate.191
13.20 The integrated nature of the route is critical for considering the benefits of
the project alongside the adverse effects. The adverse effects (including
effects and costs on individual properties) cannot be considered in isolation
from the wider, substantial benefits.
14. MANA WHENUA ISSUES
14.1 A number of Mana Whenua groups have made submissions about the
Project, with a mixture of submissions in support and opposition. Themes
raised include:192
(a) Acknowledgment of the process of engagement and partnership
undertaken by the Transport Agency in respect of the Project;193
(b) Further acknowledgment that the process of engagement has
resulted in substantial changes to the Project (in design and
mitigation) that addresses cultural values, and as a result, some
Mana Whenua groups indicate support or partial support for the
Project (or indicate that it should be approved subject to conditions).
Reasons for this include, but are not limited to, the contamination
190 Williamson Rebuttal, paragraphs 5.5-5.8. 191 Meridian Energy Limited v Central Otago District Council [2011] 1 NZLR 482 (HC), paragraphs [111]-[117]. Also refer to Basin Bridge Final decision and Report of Board of Inquiry paragraphs 530-552. 192 Linzey (Cultural Values) EIC, section 9. 193 Linzey (Cultural Values) EIC, paragraph 9.3. Ms Linzey refers to the submissions from Ngāti Tamaoho Trust (126362), Te Rūnanga o Ngāti Whatua (126384), Ngai Tai Ki Tamaki (126383) and Te Ākitai Waiohua Waka Taua Society (126332).
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bund, stormwater treatment proposals, and harbour environmental
restoration works. However, submissions also identify the need for
conditions to deliver these outcomes.194 Amendments to the
conditions have been proposed to confirm the environmental
outcomes and intent of the Project works in respect of these matters
and to provide for Mana Whenua engagement in construction and
monitoring conditions;195
(c) Concerns about the ongoing governance and co-management of
reclaimed land, particularly in acknowledgement of outstanding
claims on the Manukau Harbour. We respond to this issue in further
detail below;196
(d) Concerns about the use of dredging materials197 for the
contamination containment bund.198 This issue was discussed
further during project hui on 2 May 2017, with the Transport
Agency’s coastal ecologist and process experts in attendance.199
Amendments to the conditions have been proposed to better
manage the effects of dredging, including provision for specific
ecological and sediment contaminant surveys and Mana Whenua
engagement and monitoring conditions;200
(e) A submission by Ngāti Te Ata which opposes the Project by
expressing support for the submission of Mr McCaffery. Based on
concerns raised at the cultural values facilitated meeting, it is
evident that Mr McCaffery’s concerns relate to the extent to which
infrastructure should be located in the CMA (as a result of the
Waitangi Tribunal recommendations of the WAI 8 Claim and
subsequent Manukau Harbour Action Plan). However,
Mr McCaffery also expressed the view that such reclamation may be
appropriate where it is undertaken for coastal restoration (as is
proposed by TOES in the extension of reclamation on the eastern
foreshore between the Onehunga Wharf and Taumanu Reserve (in
194 Examples include Ngāti Tamaoho Trust (126362), Te Rūnanga o Ngāti Whātua, Ngāti Paoa (126522) and Te Kawerau a Maki (126364), Makaurau Marae Māori Trust (126569). 195 Linzey (Cultural Values) rebuttal, paragraphs 7.1 - 7.6. 196 Linzey (Cultural Values) EIC, paragraphs 9.6 - 9.7. 197 Te Rūnanga o Ngāti Whātua (126384), Ngāti Paoa and Te Kawerau a Maki (126364), Makaurau Marae Māori Trust (126569) Ngai Tai Ki Tamaki (126383) and Ngāti Paoa (126522). 198 Linzey (Cultural Values) EIC, paragraph 9.8. 199 Dr De Luca and Mr Priestley were present to discuss these issues for the Transport Agency. 200 Linzey (Cultural Values) rebuttal, paragraphs 7.1 - 7.6.
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the Gloucester Park / Port of Onehunga area).201 The issue
therefore appears to be the extent to which the proposed
reclamation proposed reflects ‘restoration and rehabilitation’ of the
harbour. Some iwi consider that it does (eg Ngāti Tamaoho and Te
Kawerau), and others (eg NWO) do not. Prior to lodgement, Ngāti
Te Ata indicated an 'in principle' opposition to any reclamation, but
did not specifically explore this issue;202
(f) A submission from NWO in full opposition to the Project.203 NWO’s
evidence provides further details regarding the iwi’s concerns,
including a concern that construction of a highway along the
waterfront, adjacent and into the Māngere Inlet and Manukau
Harbour, will negatively affect its relationship to its ancestral lands at
Te Pāpapa, Waikaraka, and Onehunga. We respond to the issues
identified by NWO in further detail below;204
(g) Submissions from Te Ākitai Waiohua Waka Taua and Ngāti Maru
Runanga, which raised concerns about potential impacts on sites
and areas of significance, particularly Te Hōpua a Rangi, Mutukāroa
and the urupa at Tip Top Corner. We respond to this issue in further
detail below.205
14.2 Evidence has been provided on behalf of NWO,206 Te Akitai Waiohua Waka
Taua,207 and Te Kawerau Iwi Tribal Authority / Makaurau Marae Māori
Trust.208 The Transport Agency understands that other iwi groups,
including Ngāti Maru Runanga, Ngāti Paoa, Ngāti Tamaoho and Ngāti Te
Ata will also address the Board during this hearing.
Iwi claims in respect of the foreshore
14.3 Ms Wilson on behalf of Te Ākitai Waiohua Waka Taua (and a number of
other Mana Whenua submitters) seek a strategy for dealing with
outstanding Te Tiriti o Waitangi claims, and other matters in respect of the
201 JWS Cultural Values and Effects, dated 9 June 2017. 202 Linzey (Cultural Values) EIC, paragraphs 9.11 – 9.13. 203 Linzey (Cultural Values) EIC, paragraphs 9.9 and 9.10. 204 Blair EIC, paragraph 36. 205 Linzey (Cultural Values) EIC, paragraph 9.5. 206 EIC provided by Ngarimu Blair (SOE) and Andrew Brown (Planning), and rebuttal evidence provided by Mr Blair, Malcolm Patterson, and Graeme Murdoch. 207 EIC provided by Karen Wilson (General). 208 EIC provided by Te Warena Taua (SOE).
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foreshore, including claims under the Marine and Coastal Area (Takutai
Moana) Act 2011 (MACA).209
14.4 The evidence of Ms Linzey responds to this issue, acknowledging the
importance of future Treaty settlement processes and processes in relation
to customary rights.210 However, these applications and any activities
authorised by the designation and consents, are not intended to, and will
not derogate from or prejudice any existing or future claims that Mana
Whenua may have under Te Tiriti o Waitangi and any applicable settlement
legislation.
14.5 In terms of customary rights claims under the MACA, the Transport Agency
acknowledges that the coastal areas reclaimed as part of the Project will no
longer form part of the common marine and coastal area, and so to this
extent, will not be able to form part of a claim under the MACA. The
Transport Agency confirms however that more broadly, these applications,
and any activities authorised by the designation and consents, will not
derogate from or prejudice any current or future rights that Mana Whenua
have under the MACA.
14.6 Ms Linzey's evidence also notes that the future ownership of land that is
reclaimed as part of the Project is a matter that will be addressed through
the reclamation vesting process conducted by Land Information New
Zealand. That vesting process generally commences after the reclamations
are completed, and so is not a matter that can be addressed in the current
RMA process concerning the resource consents for reclamation.211
14.7 Ms Linzey's evidence provides a specific response to the concerns raised
by Ms Wilson and Mr McCaffery, as to whether the Project has properly
considered the Tiriti o Waitangi, and in particular, the future settlement
claim negotiations over the Manukau Harbour (Mr McCaffery specifically
refers to the WAI 8 claim). Ms Linzey confirms that the significance of
unsettled claims (particularly pertaining to the Manukau Harbour) have
been identified and recognised in the Project.
14.8 Ms Linzey also notes that the Mana Whenua representatives were
responsive to and reflective of the directions of the WAI 8 claim and other
209 See also Blair EIC, paragraphs 41 and 42, which confirms NWO's intent to pursue customary interests in this area. 210 Linzey (Cultural Values) Rebuttal, paragraph 6.6. 211 Linzey (Cultural Values) Rebuttal, paragraph 6.6.
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outstanding claims, which is evident in the minutes of the Mana Whenua
Group hui and in the various values and cultural impact assessments that
have been prepared in respect of the Project.212 Ms Linzey identifies the
ways in which the design of the Project has sought to respond to issues
identified in the WAI 8 claim, the Tribunal recommendations and ongoing
engagement and direction from Mana Whenua in respect of this claim and
other outstanding claims.213
Response to specific concerns raised by NWO
14.9 The evidence of Mr Blair and Mr Brown on behalf of NWO raise the
following issues:
(a) Connections with the land: NWO are concerned that the Project
will negatively impact its relationship with its ancestral lands in the
area. It also considers that the Project will cut off potential for NWO
and the wider public to enjoy access to the Māngere Inlet, without
disruption, noise and air pollution and general stress caused by
large roading infrastructure.214 The Transport Agency does not
agree with this position. As explained by Ms Hancock and Mr Lister
the Project has been designed to reconnect the community with the
coast and convey a degree of stewardship. NWO are also
concerned about the potential impacts of the Project on Te Hōpua a
Rangi, and reject the mitigation measures that have been proposed
on this feature.215
(b) Stormwater treatment: NWO are also concerned about whether
the Transport Agency can successfully treat stormwater,216 with
Mr Brown describing the stormwater treatment design as “basically
experimental”.217 It is acknowledged that the design is innovative,
and deliberately so. The Project team consider that this design was
progressed directly as a result of the concerns of Mana Whenua
(and others) regarding the extent of reclamation proposed and the
desire to minimise reclamation to the greatest extent practicable
while addressing the long-standing concern of Mana Whenua
212 Linzey (Cultural Values) Rebuttal, paragraphs 6.1 and 6.2. 213 Linzey (Cultural Values) Rebuttal, paragraph 6.5. 214 Blair EIC, paragraph 38. 215 Blair EIC, paragraph 47. 216 Blair EIC, paragraph 40. 217 Based on the EIC presented by Mr Sunich for Auckland Council.
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regarding contaminants from non-point source discharges to the
Inlet and Manukau Harbour. However, while innovative in its
combination of techniques, Mr Allison disagrees with the assertion it
is ‘experimental’, because the treatment systems proposed
(bioretention and wetland systems) have been used widely by the
Council and others and are proven successful stormwater
techniques.218
(c) Consultation and engagement: NWO have raised an issue
regarding the consultation process between Mana Whenua and the
Transport Agency, with Mr Blair raising doubts about whether the
consultation process occurred with the appropriate Mana Whenua
groups.219 Ms Linzey and Mr Delamare were both involved in the
extensive engagement process that has occurred with Mana
Whenua over a number of years, and respond to this issue in their
evidence.
Mr Delamare considers that consultation with Mana Whenua kaitiaki
in respect of this Project has been robust and meaningful, and one
of the best engagement processes with Mana Whenua kaitiaki he
has been involved in.220 Ms Linzey’s evidence provides further
details about the consultation process that occurred and how the
feedback received from Mana Whenua has informed the options
assessment, Project design and management framework. The
Transport Agency acknowledges that engagement was not intended
to commit Mana Whenua to the outcomes of the Project per se, but
rather to work with them in identifying and responding to cultural
effects and interests. While Mr Blair acknowledges that consultation
has occurred with Mana Whenua, he appears to dismiss it.
(d) Treaty of Waitangi: NWO also consider that the Project does not
adequately provide for, as a matter of national importance, the
relationship of NWO with the area, as required under the
RMA. They also consider that the Project prevents NWO from
218 Allison Rebuttal, paragraph 5.2. 219 Blair EIC, paragraph 52. 220 Delamare EIC, paragraph 1.1.
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adequately practising kaitiakitanga which must be provided for under
section 7(a) of the RMA.221
Ms Linzey’s evidence responds to this, noting that the Project team
has endeavoured to respectfully and fulsomely meet its obligations
to iwi and Mana Whenua as set out in the RMA (insomuch as it can
in this consenting / approvals process), and has sought to engage
with Mana Whenua in a manner which reflects the principle of
partnership between iwi and the Transport Agency. In this regard,
Ms Linzey notes that engagement with Mana Whenua has assisted
the Project team to understand and respond to the potential cultural
effects of the Project, as identified by Mana Whenua. These
responses seek to enhance the mauri of the Māngere Inlet, respect
the environment and maintain the relationship that Mana Whenua
have to that environment.222 This is also recognised in Ms Rickard’s
evidence, where she notes that there has been examination and
consideration of Mana Whenua issues over the early route
identification, design concepts and iteration process, having regard
to the issues set out in the Cultural Values Report and hui records.
While acknowledging NWO’s opposition to reclamation, there are a
number of other views from Mana Whenua that provide a level of
support for reclamation in this instance.223
Response to issues raised by Te Akitai
14.10 In the evidence of Ms Wilson on behalf of Te Akitai, she acknowledges the
importance of the Project for the people of Tamaki Makaurau, and supports
the intention of the Project. However, Ms Wilson is concerned that the
Project will have a significant impact on sites of significance to Te Akitai,
due to the Project requirements involving coastal reclamation and dredging
of the harbour floor.224 Te Akitai are particularly concerned about the
impact of the Project on Te Hōpua a Rangi, the Manukau Harbour and
Mutukāroa.
14.11 Ms Linzey’s evidence responds to these issues. In her evidence, she notes
that the corridor and alignment option have considered potential impacts on
221 Blair EIC, paragraph 3. 222 Linzey (Cultural Values) Rebuttal, paragraph 1.1(c). 223 Rickard Rebuttal, paragraphs 6.21 – 6.28. 224 Wilson EIC, paragraphs 1.4 and 1.5.
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these sites, and sought, where practicable, to avoid those impacts. The
cultural values of this area are also recognised in the conditions which
include requirements for Mana Whenua input to urban design development
and Mana Whenua construction monitoring.225
14.12 In her opinion, the application has adequately acknowledged the cultural
significance of these sites to Mana Whenua, recognising the need for
ongoing involvement from Mana Whenua in subsequent design and
implementation of the Project. The conditions respond to the importance of
this ongoing commitment to the principles of partnership and delivery of
environmental outcomes, with a continuing role for the Mana Whenua
Group (Condition MW.1), involvement of that Group on various matters
(Condition MW.2) and preparation of a Cultural Monitoring Plan (Conditions
MW.3 – MW.5). This will provide opportunities for Mana Whenua input and
consideration of culturally significant sites as part of the ongoing design and
development of the Project.226
15. RECLAMATION
15.1 Why does the Project involve 18.4ha of reclamation in the Māngere Inlet?
This is obviously a critical question in the assessment of this Project,
particularly in light of strong policy directives in the NZCPS as manifested in
the AUP(OP).
15.2 The answer to this question pulls together many threads and dates back to
early engagement processes during the business case phase of the
Project. As outlined previously the corridor selection process identified a
preferred route south of Neilson Street and within proximity of the
foreshore.
15.3 Option F was always likely to involve reclamation to a certain extent at the
western end of the corridor in order to provide a new link to SH20 at the
Neilson Street interchange and to ensure that the coastal edge would
support the preferred road alignment while avoiding Waikaraka Cemetery.
15.4 Proximity to the coast then gave rise to opportunities for other
environmental outcomes. The extent of reclamation evolved during the
engagement and options evaluation process, in particular after engagement
225 Linzey (Cultural Values) EIC, paragraph 9.5. 226 Linzey (Cultural Values) Rebuttal, paragraph 5.2.
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with Mana Whenua, who were keen to explore the potential for the
reclamation to incorporate mechanisms to address historic degradation of
the Inlet and other such environmental issues in the area.
15.5 This was an important point in the project development process as the
previous working assumption had been that any option requiring
reclamation would be problematic in terms of potential cultural and
environmental effects.227 Rather, it was acknowledged that this Project, if it
used reclamation, offered a unique opportunity to protect, remediate and
restore an otherwise neglected coastline. This is reflected in the Cultural
Values Report which records that:
Significantly, early on in the Project's development Mana Whenua recognised opportunities to incorporate environmental improvements into the Project design to enhance the mauri of the Inlet for further generations. This is integral to their kaitiaki role.228
15.6 The reclamation has therefore been designed to be multifunctional and the
evolution of that design (and its ongoing refinement) has been driven by
numerous objectives and sometimes competing tensions. These include:
(a) Providing a containment mechanism for contaminants currently
discharging to the Inlet;
(b) Designing treatment systems to improve the quality of water
discharging to the inlet within an efficient footprint;
(c) Rehabilitating (or at least assisting to rehabilitate) the mauri and
mana of the Inlet;
(d) Mitigating the loss of the Waikaraka Foreshore Walkway by
providing for alternate public recreation space whilst rehabilitating
the currently degraded/artificial coastline;
(e) Promoting coastal access to the Inlet and reconnecting people with
that environment by creating a frontage to Māngere Inlet;
(f) Minimising ecological effects, particularly with respect to avifauna,
while exploring opportunities to provide for ecological outcomes
within the reclamation footprint;
227 Wickman EIC, para 8.6(b). 228 Cultural Values Report for the East West Link, paragraph 1.9.
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(g) Avoiding and minimising impacts on geological heritage features;
and
(h) Mitigating the potential prominence of the EWL embankment from
Māngere Inlet with landforms that are in scale with the shoreline and
the nearby Taumanu Reserve.
15.7 The design has also been progressed in recognition of the strong policy
direction in relation to reclamation. This issue is addressed further in Part 4
of these submissions. At expert conferencing, all experts acknowledged
that, were a reclamation to proceed, there would be a need to reconcile
multiple drivers to achieve an integrated solution.229
15.8 The proposed reclamation design comprises three landforms of varying
sizes which sit perpendicular to the road linked by coastal boardwalks. The
reclamations comprise rocky headlands, pebble banks and coastal
wetlands that reflect natural features and patterns. Numerous design
techniques have been adopted to maximise naturalisation of the shoreline
while minimising the reclamation footprint.
15.9 As outlined earlier, the reclamation enables construction of parts of the road
corridor (ie its transport function) but it also enables integrated development
of:
(a) A coastal embankment and bund that will better contain and treat
contaminant discharges from landfills into the Māngere Inlet along
the foreshore;
(b) Coastal landforms to form a naturalised coastal edge to rehabilitate
the natural character of the foreshore along the northern edge of the
Māngere Inlet and provide recreation space;
(c) A boardwalk and coastal paths to improve public access and
recreation; and
(d) Stormwater wetlands, which will manage stormwater from both the
new State Highway as well as currently untreated stormwater
discharges from the wider Onehunga-Penrose business/industrial
and residential catchments.
229 Joint Witness Statement for Reclamation, paragraph 2.2(a).
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15.10 Importantly, the design has been integrated to achieve these multiple
functions whilst maximising efficiencies and minimising size. None of those
component parts can be simply "bolted on or off" without compromising
other functions and therefore the overall integrated purpose. For example,
what appear to have been perceived as extensive landscape features230 are
actually headlands designed to a scale and form that provides appropriate
aesthetic outcomes231 whilst also providing important recreation space and
coastal access outcomes.
15.11 Similarly, the stormwater design has sought to maximise efficiency within
the minimum footprint. This has been achieved through a combination of
wetlands and biofiltration beds. These are not just 'large stormwater
treatment ponds'232 but also contribute to recreation and amenity outcomes.
The wetlands have been designed to reflect estuarine marshland that sit
behind the pebble banks.233 They are accessible via a boardwalk. Their
form and scale is intended to enhance the experience of the shoreline, and
will allow the public to enjoy the harbour environment separate from the
road.
15.12 The proposed reclamation extent also needs to be considered in the
context of the Māngere Inlet as a whole:
(a) The inlet has been subject to significant change since the mid-
1800s, including some large scale industrial developments that have
reduced its surface and cross-sectional area (from an original CMA
of 7.5km2 to 5.7km2, a 24% reduction).234 This Project proposes
reclamation of 18.4 hectares over a distance of 2.9 km. This is a
change of 3.5% in area of the Inlet;235
(b) The former intricate volcanic shoreline of the Māngere Inlet has
been straightened and filled with refuse. Historic landfills across the
northern coastal edge of the Inlet continue to discharge
contaminants into the water;
230 See Memorandum of Counsel and Planner for the Board of Inquiry, dated 9 June at paragraph 69. 231 Joint Witness Statement for Urban Design and Landscape, under the "Māngere Inlet Reclamation and Naturalisation" heading. 232 See Memorandum of Counsel and Planner for the Board of Inquiry, dated 9 June at paragraph 66. 233 Lister Rebuttal, paragraph 10.2. 234 Joint Witness Statement for Coastal Processes, paragraph 2.7. 235 Joint Witness Statement for Coastal Processes, paragraph 2.13.
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(c) The Māngere Inlet is currently walled off behind industrial
development.
EWL road embankment - contaminant containment function
15.13 The design of the EWL embankment has been developed with the objective
of slowing the travel of groundwater that passes through the existing closed
landfills (leachate) to allow attenuation of contaminants that might otherwise
discharge through the existing seawall or via basalt from the Galway Street
Landfill to the Māngere Inlet.236 It will also substantially reduce saltwater
ingress to the Galway Street landfill and therefore the overall volume of
leachate generated and discharged to the Inlet.
15.14 In addition, a new leachate collection system will be developed at the Pikes
Point West and East Landfills which will allow delivery of leachate under
gravity to the EWL embankment from where it will be pumped and treated
with stormwater in the stormwater wetlands.237
Foreshore stormwater treatment
15.15 The reclamation design includes an innovative solution to address the
stormwater discharges generated by the EWL, but more significantly
existing untreated urban stormwater discharges, in a manner which
contributes to an overall positive environmental outcome.
15.16 There are currently 11 stormwater pipe outfalls discharging along the
northern foreshore of the Māngere Inlet which drains stormwater from
approximately 611 ha of the Onehunga-Penrose urban catchment.238
Monitoring assessments undertaken by Dr Allison concluded that the quality
of stormwater currently entering the Māngere Inlet is potentially detrimental
to marine ecosystems and contains landfill leachate, industrial run off and at
times, wastewater.239
15.17 The proposed naturalisation of the coastal edge combined with the
hydraulic barrier created by the construction of the EWL provides a unique
opportunity to capture and treat these stormwater discharges. Within the
coastal reclamation works, the Transport Agency is proposing to construct a
combined wetland and biofiltration system that will intercept and treat
236 Williams EIC, paragraph 1.6. 237 Williams EIC, paragraph 1.7. 238 Allison EIC, paragraph 6.1; Ms Paice EIC, paragraph 6.1. 239 Allison EIC, paragraph 6.5.
BF\57040744\1 Page 65
stormwater flows along the foreshore. As described by Dr Allison, this
treatment system will utilise the interaction of wetland vegetation and
planted filter beds to remove contaminants from the discharged stormwater
before the treated flows are discharged to the Māngere Inlet.240 The
treatment system will be transferred to Council following the completion of
the Project.
15.18 Dr Allison describes the benefits which the treatment system will have on
the quality of stormwater being discharged to the Manukau Harbour as
being significant, extending well beyond treating the stormwater discharges
from the Project.241 By reducing the contaminant load entering the harbour,
the treatment system will have a positive impact upon marine organisms
and marine ecology.242 The placement of the system along the coastal
margin also has the potential to reduce groundwater contaminant
discharges and improve resilience to accidental contaminant spills and
dumping in the wider catchment area. The treatment system has also been
designed in a manner that will be resistant to saltwater intrusion, will
capture and treat landfill leachate and minimise any residual flooding
risks.243
15.19 During stormwater conferencing, all experts agreed the key stormwater
benefits as follows:244
(a) That there are few treatment devices in the 611 hectares Onehunga
- Penrose catchment and water quality in this catchment is relatively
poor;
(b) That the additional urban catchment area treated by the Project
results in an overall significant stormwater quality benefit;
(c) The extent of reclamation is achieving multiple outcomes;
stormwater treatments is one of the considerations but not the sole
driver; and
(d) There are no plans and no opportunities for similar large devices in
the catchment.
240 Allison EIC, paragraphs 7.5 - 7.14. 241 Allison EIC, section 9 as agreed at the Joint Witness Statement on Stormwater, paragraph 3.2. 242 De Luca EIC, paragraph 9.36. 243 Allison EIC, paragraphs 7.9 - 7.10. Paice EIC, sections 7 and 9. 244 Joint Witness Statement on Stormwater, sections 2 - 6.
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15.20 At the end of conferencing, a few issues remained outstanding, including
external bund height related to potential saltwater intrusion effects and
commissioning requirements. Subsequent discussions with Council have
now resolved these matters. Both parties acknowledge that a degree of
flexibility is preferable at this point in the design process and that these
matters could be the subject of refinement through subsequent detailed
design and asset transfer processes.
Foreshore Stormwater - consenting approach
15.21 The Transport Agency has applied for a coastal permit for reclamation
which includes construction of the proposed wetlands. It is also seeking
discharge consents in relation to discharges from new impervious surfaces
created by this Project. It is not seeking consent for stormwater discharges
from the coastal wetlands from the existing catchment. This is because
there are a number of existing authorisations relevant to the catchment and
the Project does not detrimentally change these discharges (rather there is
a significant improvement). Further, as explained by Mr Sunich for
Auckland Council, this catchment will be encompassed within the proposed
region-wide network discharge consent application which is currently being
processed.245
Access, recreation and rehabilitation
15.22 Further objectives of the reclamation are to provide recreation space,
access and coastal restoration.
15.23 As Mr Lister explains, the Māngere Inlet’s northern shore was formerly an
intricate and deeply indented shoreline of basalt lava flows and tidal inlets.
Historical photos depict intertidal mudflats with a shoreline tracery of islets,
reefs and fingers of lava.246 Historical development included straightening
of the shoreline, reclamation of the former inlets, burying of the shoreline
features, industrialisation of the backdrop, discharge of contaminants, and
severance of Onehunga from the Māngere Inlet.247
15.24 The creation of the coastal landforms will rehabilitate these characteristics
and qualities, such as the former intricate and heavily indented shoreline,
and will echo the natural lava fingers that formerly characterised the
245 Sunich EIC, paragraph 4.3. 246 Priestley EIC, paragraph 8.17, Figure 4: Māngere Inlet Northern Foreshore (1949). 247 Lister EIC, paragraph 1.6.
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shoreline. It will simultaneously achieve positive outcomes such as access
to and along a rehabilitated shoreline and enhanced amenity values, and
provide a better platform for the community to exercise stewardship over
the area. As Mr Lister explains this will result in superior recreational
outcomes.
15.25 The landscape and urban design experts have reached a high level of
agreement with respect to the appropriateness of the reclamation form and
extent and the recreational and amenity benefits it provides, in particular it
was agreed:
(a) That the shoreline naturalisation will have positive effects on
landscape qualities, access along the CMA, recreational amenity,
and will create an impression of stewardship;
(b) While there is scope for design refinement and adjustment to further
integrate coastal processes and ecological matters, the landscape
and amenity aspects of the proposal must be retained along this
edge;
(c) That separation of the coastal path including "boardwalks" from the
EWL main alignment is critical to achieving an acceptable level of
amenity.248
Coastal process issues
15.26 In terms of reclamation, the coastal process issues are narrowly confined.
Dr Carpenter for Auckland Council, while supporting naturalisation of the
coast, considers that the design and scale of the Project could be reduced
to minimise potential adverse effects from deposition of sediments.
Mr Priestley considers that the effects on coastal processes from the
reclamation will be minor in relation to tidal currents, coastal morphology
and sedimentation. He does not consider the reclamation design needs to
be amended to address any effects on coastal processes.
Ecological effects of the reclamation
15.27 The area proposed to be reclaimed is roosting and foraging habitat for a
number of bird species, including threatened and at risk species. Some of
248 Joint Witness Statement for Urban Design and Landscape, under the "Māngere Inlet Reclamation and Naturalisation" heading.
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proposed reclamation area is also identified as a Significant Ecological Area
- Marine. The proposed reclamation will remove that habitat and therefore
create a significant adverse effect on those ecological values. The need to
minimise this adverse effect has been an important driver in reducing the
size of the reclamation.
15.28 There are limited means to directly mitigate or offset the loss of foraging
habitat but the Transport Agency is proposing a suite of mitigation and
offset measures that response to the effects of the Project in an integrated
manner. These effects and the proposed response are discussed below in
the section related to biodiversity of the Māngere Inlet.
Submitter concerns
15.29 As alluded to previously, while Mana Whenua are generally opposed to
reclamation in principle, a number of Mana Whenua groups have
recognised that there are extenuating circumstances which mean they are
not opposed to the proposed design for this Project. These circumstances
include the need to progress the containment, remediation and clean-up of
contamination in and around the Inlet.249
15.30 Overall, the Transport Agency understands that the Council supports the
proposed reclamation recognising the amenity, recreation and water quality
benefits that it will deliver. However, there is also a general request in the
Council's evidence that the size of the reclamation be minimised wherever
possible and that any reduction would be supported.250 The Transport
Agency agrees in principle with this aspiration, but as previously explained,
considers that the proposed design provides for that integrated use within
the minimum footprint possible. It does acknowledge that there is scope for
further refinement during detailed design.
15.31 The Council's concerns about the reclamation are threefold:
(a) The policy framework does not support reclamations in general;
(b) The reclamation will potentially increase the rate of sedimentation
and mangrove colonisation within the proposed embayments; and
(c) Loss of ecological habitat.
249 Cultural Values Report for the East West Link, paragraph 1.8. 250 Coombes EIC, paragraphs 11.62, 21.5 and 22.2.
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15.32 The Transport Agency considers that the Council's approach (at least in its
primary evidence) to the reclamation policy assessment is too narrowly cast
and fails to recognise the integrated functionality of the reclamation. The
Transport Agency's approach to the policy assessment for the reclamation
is detailed in Part 4 of these submissions.
15.33 The Transport Agency does not share the Council's sedimentation and
mangrove colonisation concerns as outlined above. Dr De Luca considers
mangrove colonisation to be a natural process and not an adverse effect.
15.34 Concerns about the size of the reclamation are principally addressed by
Mr Lister as outlined previously in this section. He considers that the
proposed landforms are in scale with the Inlet, and integrate multiple
outcomes as efficiently as possible. He notes that specific design
measures were chosen to minimise the extent of reclamation. These
include introducing the boardwalks, rather than using a bund for the coastal
path,251 and the innovative wetland design which uses a combination of
wetlands and biofiltration beds.252 While there may be opportunities for
fine-tuning, any significant reduction in scale would necessarily reduce the
positive outcomes achieved with the current design.253 Mr Nancekivell
states that the design of the road embankment has been developed, as far
as practical, to make efficient use of the coastal marine area by using the
minimum area necessary to achieve the integrated Project benefits.254
15.35 As discussed below the adverse effects on ecological values are proposed
to be addressed through an integrated package of mitigation, offset and
enhancement.
Universal access/carparking
15.36 Mr McIndoe considers that the parking proposed in the Project design does
not provide universal access to the Māngere Inlet coastal edge.255 He
seeks mitigation in the form of a coastal access area within the proposed
reclamation. Mr Nancekivell notes that while there is space to engineer a
small amount of parking within the current reclamation footprint there are
numerous issues that would need to be addressed, including that it could
251 Lister Rebuttal, paragraphs 9.14 and 10.14. 252 Lister EIC, paragraph 8.22(d). 253 Lister EIC, paragraph 9.3. 254 Nancekivell EIC, paragraph 14.1. 255 McIndoe Rebuttal, paragraph 2.2.
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increase delays on the EWL, and could create safety issues as queues
would extend onto the EWL.256
15.37 In respect of accessibility, Mr Murray has provided a detailed comparison of
existing and proposed access to the foreshore in his rebuttal evidence.257
He concludes that there are locations that would provide footpath or shared
path access from parking spaces to the foreshore paths, although these
would require crossing the EWL at one of the at grade crossings. These
are for example at Galway Street, and at the proposed Ports Link, which
would provide at-grade access across the EWL from the existing parking
within the Cemetery.
15.38 He also notes that there are parking locations on the coastal edge such as
at the Taumanu Foreshore reserve, the Landing, and Coronation Road
(south side of the Old Māngere Bridge). In addition, there will be
opportunities for parking near the Se Scouts Building along Onehunga
Harbour Road.258
16. NEILSON STREET INTERCHANGE AREA
16.1 The natural and urban landscape around Neilson Street revolves around Te
Hōpua, the volcanic explosion crater and tuff ring. However, historical
development has resulted in modification of the tuff ring’s physical landform
and reduction of its legibility. Te Hōpua has been substantially buried and
modified through landfill reclamation, urban development and state highway
construction. The area around Neilson Street is characterised by industrial
buildings and transport infrastructure, including SH20 and the interchange,
and there is poor connectivity between Onehunga and the Wharf and
Harbour. This is exacerbated by very high traffic flows.
16.2 This area is of significant interest to the local community and was the focus
of many submitter concerns. Panuku has aspirations to transform the
Onehunga area and is proposing to buy and redevelop the Onehunga
Wharf to facilitate form of mixed use development. The Transport Agency
has had discussions with Panuku regarding potential transfer. The current
planning provisions for the Wharf anticipate regeneration occurring at some
point in the future.
256 Nancekivell Rebuttal, paragraphs 5.3 and 5.4. 257 Murray Rebuttal, paragraphs 8.5 - 8.13 and Annexures 1 and 2. 258 Condition LV.5A(b) and Nancekivell Rebuttal, paragraph 7.1.
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16.3 The Neilson Street Interchange area was the subject of both a specific
facilitated meeting and an expert conference session. Subsequent to
conferencing a number of matters have been resolved. These include
agreement that the width of the shared path between the Wharf and
Taumanu should be a minimum of 4m wide, and the width of the pedestrian
connection to old Māngere Bridge should be expanded to 5m wide. These
matters have now been provided for in conditions.259 The remaining issues
are discussed below.
Outstanding issues
16.4 The issues that were discussed during conferencing mainly relate to:
(a) Effects on the values of Te Hōpua as an ONF;
(b) Urban design and landscape issues including;
(i) Connectivity and amenity (severance) between Onehunga
and Onehunga Wharf/Old Māngere Bridge, and between
Onehunga and the harbour. This includes the proposed land
bridge over the trench;
(ii) Connectivity and amenity between Onehunga Wharf and
Taumanu Reserve;
(c) Panuku's aspirations for the Wharf;
(d) Community aspirations to underground the transmission lines; and
(e) Built Heritage including the Aotea Sea Scout's Building, The
Landing and the Wharf.
16.5 Mana Whenua's association with the area and the landscape, including Te
Hōpua also needs consideration.
Te Hōpua
16.6 Parts of Te Hōpua are recognised as an outstanding natural feature in the
AUP(OP). It is a small explosion crater, with a low tuff ring enclosing the
crater. It once had an opening to the Manukau Harbour, although the
opening was closed and the crater was filled in the 1940s. The crater and
tuff ring have both been extensively modified by development, including
259 Conditions LV.5D(a) and LV.5E(a)(v).
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transport infrastructure, but also commercial and residential development
along the former crater rim. There is an intertidal outcrop of tuff in the
Harbour adjacent to the Aotea Sea Scouts Building.
Te Hōpua's geological values
16.7 Dr Smith, for the Transport Agency, and Mr Jamieson for the Council,
attended conferencing and agreed that the proposed earthworks on the
crater floor and in the trench will have minimal adverse effects on Te Hōpua
Outstanding Natural Feature (ONF).260 They also supported a number of
additional mitigation measures over and above those already proposed.261
In his rebuttal evidence, Dr Smith identifies which of the agreed measures
have been provided for in the updated conditions.262 In particular, these
relate to measures to tidy up debris from within the intertidal area of the
ONF and a requirement to undertake appropriate analyses and report on
findings, when undertaking research within the trench cut.
16.8 The matters that remain outstanding are the recommendations from
conferencing that:
(a) Visual effects could be reduced by redesigning the overbridge over
SH20 to an open structure without retaining walls.263 Mr Nancekivell
explains, in his rebuttal evidence, that it is possible to construct
another span on the southern side of the proposed overbridge.
However, this option would involve increased construction costs.264
(b) The stormwater outfall located near the intertidal tuff at Te Hōpua
could be relocated. Mr Cain for the Transport Agency, in his rebuttal
evidence, explains that relocation is not desirable or
required. However, acknowledging Mr Jamieson’s concerns about
erosion of the tuff, and considering that the Transport Agency will be
replacing the outfall at this location, he notes that it would be
possible to include erosion protection measures in future detailed
design and construction stages of the Project.265
260 Joint Witness Statement on geological heritage, paragraphs 6.1 - 6.11. 261 Joint Witness Statement on geological heritage, paragraphs 6.12 - 6.19. 262 Smith Rebuttal, paragraphs 4.3 and 4.6 - 4.7. 263 Joint Witness Statement on geological heritage, paragraph 6.15. 264 Nancekivell Rebuttal, paragraph 6.29. 265 Cain Rebuttal, paragraphs 4.1 - 4.13.
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16.9 Dr Smith's overall view is that the Project provides an opportunity to create
positive outcomes in terms of developing the connection between Te Hōpua
and Anns Creek and the opportunity to study the cut during trenching.266
The Project will also install educational signage that will enable the public to
better understand the history of Te Hōpua and the other natural features
within the Project area.
Te Hōpua's legibility
16.10 In respect of its landscape values, the experts agreed that Te Hōpua is
substantially modified, and the EWL will have further adverse effects on its
legibility and aesthetic coherence. However, the experts had differing views
about the degree and significance of those adverse effects:267
(a) One view is that the legibility and aesthetic coherence of the ONF is
already so compromised that the effects (of EWL) will be low; and
(b) The other is that, because the existing level of degradation is so
significant already, further compromise should not be accepted.
16.11 Mr Lister, in his rebuttal evidence, states that in his view, even if the EWL
were not to be built, the legibility of Te Hōpua would still be poor because
the effects of EWL are outweighed by the effects of historic
developments.268
16.12 He refers to Mr Brown’s evidence, where Onehunga’s coastal environment
is described as being fractured, and "physically riven by transport and
transmission corridor infrastructure, the existing port and a swathe of
industrial development"269 although he acknowledges that Mr Brown goes
on to express the view that "it is important to recognise that the EWL could
only exacerbate this current situation by subtly reinforcing the isolation of,
and physical encroachment into, Te Hōpua Crater."
16.13 Mr Lister's view is that, rather than saying no more development, a more
effective response is to look for measures that might address these historic
effects, such as an artwork that could be used to highlight the crater's
266 Smith EIC, paragraphs 1.4 - 1.5. 267 Joint Witness Statement on urban design and landscape, pages 4 - 5. 268 Lister Rebuttal, paragraphs 5.6 - 5.7. 269 Brown EIC, paragraph 44.
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circular form. In addition, during conferencing all experts agreed that trees
could be used to reinforce the landform of Te Hōpua.270
Severance of Te Hōpua from Manukau Harbour
16.14 A further potential effect raised in evidence is physical and visual severance
of Te Hōpua from the Manukau Harbour. Mr Lister acknowledges that the
EWL will have some adverse effects in this regard, but considers they will
be low in significance for the following reasons:271
(a) The EWL road is only moderately elevated where it traverses the
gap where the crater formerly connected to the harbour. He says
that views will still remain to the harbour from the rim of the crater as
illustrated by the photosimulation from viewpoint 2 (the entrance to
Gloucester Park North on Onehunga Mall);272
(b) The physical and visual connection between the harbour and the
northern half of the crater floor (ie Gloucester Park North) is already
blocked by SH20 and the screening vegetation planted adjacent to
the motorway;
(c) While there is a visual connection between Gloucester Park South
and the harbour, the physical connection is hindered by Onehunga
Harbour Road which operates as ramps to and from the SH20
motorway. The visual connection is hindered by the planting in the
south-west corner of Gloucester Park which is in the location of the
former gap to the harbour; and
(d) The connection was fundamentally severed by the infilling of the
lagoon and the construction of the original road around the coast.
Connectivity and amenity between Onehunga and the Wharf and
Harbour
16.15 A key issue is the connection between Onehunga and Onehunga Wharf/Old
Māngere Bridge, in particular taking into account future plans by Panuku for
redevelopment of Onehunga Wharf.
270 Joint Witness Statement on urban design and landscape, page 4. Lister Rebuttal, paragraphs 5.6 – 5.8 and 5.10. 271 Lister Rebuttal, paragraph 5.9. 272 Drawing Set 13, Photo Simulation 2, Page 11.
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16.16 The urban design and landscape experts agreed that the existing
connections and amenity are poor and that there are significant constraints
to remedying the situation.273 They agreed that EWL could provide a further
physical and perceptual barrier to such connections but recognise that
appropriate mitigation of the issue falls into two components, the ‘land
bridge’ and the pedestrian and cycle route. Mr Lister considers that the
land bridge will not just mitigate effects of the Project, but will enhance the
existing connectivity.274
The land bridge
16.17 The Transport Agency is proposing to build a land bridge over the top of the
trench effectively re-connecting the Wharf area to The Landing, with which
it had an historic association.
16.18 During expert conferencing for the Neilson Street area, experts from various
disciplines supported the proposed trenching. They also supported a land
bridge in this area, but disagreed over its appropriate length. While the
experts considered that the land bridge could in theory be extended from
the current 70m to 110m (30m to the east and 10m to the west) and still tie
in with the topography without any major change to the EWL vertical
alignment, constraints on extending the proposed land bridge beyond 80m
were identified and have subsequently been investigated.275
16.19 Mr Nancekivell identifies the constraints to extending the land bridge in his
evidence. In summary these include:276
(a) Design factors for the EWL, which are:
(i) To the east, the location of the Galway Street intersection;
and
(ii) To the west, the gradient up to the bridge over SH20.
(b) Fire safety considerations;
(c) Potential impacts on the existing Manukau Harbour Crossing
foundations; and
273 Joint Witness Statement on urban design and landscape, page 6. 274 Lister Rebuttal, paragraph 7.3. 275 Joint Witness Statement, Neilson Street area, pages 5 - 6. 276 Nancekivell Rebuttal, paragraphs 6.13 - 6.19.
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(d) Potential impacts on Auckland Transport's plans for light rail to the
Airport.
16.20 Mr Nancekivell states that if the land bridge is extended beyond 90m, it is
very likely to require additional fire suppression and ventilation equipment
increase the footprint of the trench both in width ie requiring additional land
from the Wharf area and requiring additional depth to allow for ventilation
and fire suppression in the roof of the “tunnel”.277 These additional features
would also significantly increase capital and operational costs.
16.21 The conditions currently provide for a land bridge of at least 70m length,
connecting The Landing with the Onehunga Wharf.278 The conditions also
contain design outcomes for the EWL trench and land bridge, including
consideration of acoustic treatment within the trench, where practicable.
16.22 The Transport Agency's urban design expert, Ms Hancock, considers that
the land bridge provided for within the conditions (70m), provides a
generous and usable connection and is an appropriate response to the
effects of the EWL.279 Both Ms Hancock and Mr Lister consider that there
could be merit in a small extension of the land bridge. However, its purpose
is to reconnect The Landing with the Wharf and to reduce the isolation of
these features and they both consider that a 70m land bridge would
achieve that.280
16.23 The Council's request for an extended bridge is likely driven by
consideration of Panuku's future aspirations for this area. This is discussed
further in the context of Auckland Council's position on outstanding issues.
Pedestrian and cycle route between Onehunga Town Centre and the
Wharf/Old Māngere Bridge
16.24 Access for pedestrians and cyclists between the Town Centre and the
Wharf and the Old Māngere Bridge is an important issue for the local
community. The existing connections are considered to be poor. They are
indirect, have poor amenity, poor legibility, and have CPTED issues (that is
277 Nancekivell Rebuttal, paragraphs 6.13 - 6.19. 278 Condition LV.5C. 279 Hancock Rebuttal, paragraph 5.14. 280 Hancock Rebuttal, 5.14; Lister Rebuttal, paragraph 7.3.
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crime prevention through environmental design).281 Some submitters have
expressed concern that the Project will compound these existing issues.282
16.25 The Council seeks additional mitigation measures to improve connectivity in
the area, but some submitters go further. In particular, Mr Mead for The
Onehunga Enhancement Society considers that there are significant
adverse effects in Sector 1 that cannot be mitigated and there should be a
re-assessment of the design in this area.283
16.26 However, Ms Hancock considers that the Project will at a minimum
reinstate the existing connections, and in some cases will improve
connections through a combination of measures including:284
(a) traffic reduction on Onehunga Harbour Road;
(b) replacing the existing pedestrian and cycle overbridge with a
minimum 5m wide bridge; and
(c) a new shared path and streetscaping on the northern side of
Onehunga Harbour Road.
16.27 Regarding the existing underpass under SH20, during urban design and
landscape expert conferencing, it was agreed that the underpass alignment
and configuration should optimise sight lines and be a clear connection
between Onehunga Mall and the new Old Māngere Bridge.285 Mr McIndoe,
the Council's expert, has a more specific request. He seeks that the
northern entrance to the existing underpass be splayed open to create a
more direct north-south connection with enhanced visibility to and from the
Onehunga Mall end to enhance both legibility (way-finding) and safety.286
16.28 The reconfiguration of the existing underpass was not envisaged and is not
currently part of the Project. Instead the Project is proposing a new shared
path which goes under SH20 and connects with the new pedestrian bridge
that connects to the Old Māngere Bridge over the EWL.287 During
conferencing on the Neilson Street Area it was acknowledged that there
would be severe engineering and constructability constraints to the
281 Joint Witness Statement on urban design and landscape, page 6. 282 Brown EIC, paragraphs 31 – 33, Marler EIC, paragraph 9.3 and Mead, EIC paragraph 83(g). 283 Mead EIC, paragraph 121. 284 Hancock Rebuttal, paragraph 5.10. 285 Joint Witness Statement on urban design and landscape, page 6. 286 McIndoe EIC, paragraph 14.14 and Rebuttal, paragraph 4.2. 287 See the Road Alignment Drawings, Drawing Set 3, Sheet 3.
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realignment of the underpass.288 However, Mr McIndoe was not been
present for this discussion, as he records in his rebuttal evidence, and the
Council has subsequently engaged Mr Innes Flett, a structural engineer, to
provide evidence about the feasibility of this option.289 Mr Flett states that it
is feasible but notes the following concern:290
The major concern with this proposal is that the southbound carriageway of SH20 would require to be partially closed for approximately 15 weeks and a contraflow be put in place while the construction works progress. This would reduce the capacity of the route significantly and would require consultation with NZTA.
16.29 Subsequent to Mr Flett filing his rebuttal evidence, the Transport Agency's
design expert, Mr Nancekivell is seeking to meet with Mr Flett to discuss the
constraints for such a proposal.
Connectivity and amenity between the Wharf and Taumanu Reserve
16.30 The quality of the connection between Onehunga Wharf and Taumanu
Reserve and the amenity of the shoreline is an issue. The urban design
and landscape experts agreed that the Project will have some positive
effects on connectivity compared to the existing situation, including local
traffic on Orpheus Drive, which will be separated from highway traffic.
However, they also consider that there will be adverse amenity effects on
this area because of the proximity of the Neilson Street Interchange
overbridge and ramps.291
16.31 The Project is proposing to develop a minimum 4m wide path linking the
Onehunga Wharf with Taumanu Reserve. This path will also have
occasional wider sections for lookouts and/or seating. Ms Hancock states
that this path will complete a 'missing link' in the connections past the Aotea
Sea Scouts Building to Taumanu Reserve.292
Panuku's aspirations for the Wharf
16.32 Panuku and Auckland Council have future plans to regenerate Onehunga
Wharf and this is signalled in the current planning provisions in the
AUP(OP). It has been envisioned as a new mixed use neighbourhood, with
connections to Onehunga Town Centre, rail station, and to the open space
288 Joint Witness Statement, Neilson Street area, paragraph 6.2. 289 McIndoe Rebuttal, paragraphs 4.1 to 4.5. 290 Flett Rebuttal, Appendix A paragraph 3.0. 291 Joint Witness Statement on urban design and landscape, page 3. 292 Hancock Rebuttal, paragraphs 4.1(a) and 5.3, and condition LV.5D.
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and shared path network. While there is no current commitment or
timeframe for such redevelopment, the Project has sought to optimise the
future viability of this area by ensuring the transport connections are
consistent with these proposals and by creating new, stronger connections
between the Wharf and the urban and coastal environment. (These
aspirations are discussed in greater detail in Part 3 of these submissions).
Undergrounding of the transmission lines
16.33 Undergrounding the transmission infrastructure around the Neilson Street
Interchange is a long held community aspiration. While the Transport
Agency recognises that it is desirable from a community perspective, and
particularly for Panuku's future plans for the area, it is not proposed as part
of this Project. This is discussed further in the context of Auckland
Council's outstanding issues, later in these submissions.
16.34 Undergrounding was discussed during the expert conferencing on urban
design and landscape issues, in the context of compensating for reduced
legibility of the visual connection between Te Hōpua and the Manukau
Harbour.293 While the experts generally agreed that undergrounding will
have benefits on general amenity, experts for the Transport Agency and
TOES considered this would have little benefit in enhancing the contribution
of Te Hōpua to the wider landscape. The Transport Agency's experts are
also concerned about adverse visual effects from undergrounding, due to
the need for substantially sized cable termination stations at either end of
the underground section.
Built heritage
16.35 Onehunga has a number of scheduled and listed historic heritage
buildings,294 the most relevant for the Project being the Aotea Sea Scouts
Building, The Landing (former Manukau Tavern) and the Onehunga Wharf.
Aotea Sea Scouts building
16.36 The Aotea Sea Scouts Building was built in 1911 and used by the Manukau
Yacht Club until 1972. The Aotea Sea Scouts moved into the Building in
293 Joint Witness Statement on urban design and landscape, page 5. 294 Matthews EIC, paragraph 7.7.
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April 1977. It is significant as the oldest remaining yacht club building in
New Zealand.295
16.37 Various submitters, including the Sea Scouts, have expressed concerns
about potential adverse effects on the heritage values of the Aotea Sea
Scouts Building,296 caused by a physical disconnection of the building from
its surrounding environment as a result of the Project.297 The Scouts are
also concerned about potential effects on their parking and manoeuvring
area.
16.38 Although the Building remains in its original location and is not physically
affected by Project works, Ms Matthews, the Transport Agency's built
heritage expert, concludes that there will be moderate to significant adverse
effects on the context values of the Aotea Sea Scouts building as a result of
the proximity of the alignment.298 The Building's other values will be largely
unaffected.
16.39 The Transport Agency is proposing a number of measures to mitigate these
effects, and is also in discussion with Sea Scouts about potentially
permanently relocating the Sea Scouts to an alternative location. This is
discussed further later in these submissions (Part 3).
16.40 Other submitters have also raised concerns about impacts on the outlook
from the Aotea Sea Scouts building towards Gloucester Park
South. Ms Hancock's evidence is that for the Aotea Sea Scouts Building,
the Urban Design and Landscape Framework contains measures that will
ensure design treatment of the retaining walls immediately opposite the
building to improve amenity and acknowledge and interpret the history of
the area.299
The Landing and Onehunga Wharf
16.41 The Landing (former Manukau Tavern) was originally built in 1865 in a
prominent location opposite the Government wharf, then rebuilt in 1879
295 Matthews EIC, paragraph 7.11 - 7.13. 296 For example, Heritage New Zealand Pouhere Taonga (126638) and Scouts Association of New Zealand – Aotea Sea Scout Group (126212). 297 Lasham EIC (summary of evidence), paragraph 2.7. 298 Matthews EIC, paragraph 1.3. 299 Hancock EIC, paragraphs 11.3 and 15.18 and condition LV.5A.
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after being destroyed by fire. It is significant as Onehunga's only remaining
19th century hotel in continuous operation since 1879.300
16.42 The Onehunga Wharf is scheduled as a Category B Building and is of local
significance, as the facility for (historic) international and coastal shipping
including passenger as well as cargo services. It has a history of
progressive development including a new ferro-concrete wharf completed in
1926, retaining the existing sea wall underneath, as well as
widening/extensions in the 1950s and 1960s. It was a significant part of
Onehunga’s and Auckland’s infrastructure, and a catalyst for development
in the Onehunga area, with an important relationship to the wider historical
and cultural context.301
16.43 Heritage New Zealand Pohere Taonga raises concerns about the Project
isolating The Landing from the surrounding area, and severing connectivity
with the foreshore, Māngere Bridge and Onehunga Wharf.302
16.44 Ms Matthews acknowledges that the Project will create a busier, more
complex road arrangement in front of The Landing.303 However, the new
land bridge over the trenched EWL will maintain a visual and physical
connection between The Landing and the Onehunga Wharf, mitigating the
adverse effects of the Project, by reconnecting The Landing and Te Hōpua
to Onehunga Wharf.
16.45 During conferencing, the experts discussed the effect of the trenched
section in front of The Landing, and whether it leads to a disconnection of
this building to the Onehunga Wharf. Both agreed that there will be some
adverse effects on the setting of the place and its connection to Onehunga
Wharf as a result of the trenched section of the Project.304
16.46 However, they also agreed that the land bridge is important for maintaining
visual and physical connections, and enables the building to be grounded
and maintain its setting. Both experts agreed that a modest increase in the
extent of the land bridge and/or a shift to the east enabling it to align with
the eastern end of The Landing would result in a better heritage outcome.
300 Matthews EIC, paragraphs 7.17 - 7.19. 301 Matthews EIC, paragraphs 7.26 – 7.28. 302 Heritage New Zealand Pouhere Taonga (126638). 303 Matthews EIC, paragraph 11.4. 304 Joint Witness Statement for Built Heritage, paragraph 3.7.
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They also considered that the design and treatment of the land bridge
should reflect and respond to the historic context.305
16.47 Ms Matthews concludes that the Project has been designed to avoid or
minimise impacts on historic heritage buildings and structures as much as
possible.306 Importantly, there are no direct impacts on any historic heritage
structures by the location and design of the alignment and, where it has not
been possible to avoid potentially adverse effects, measures to manage or
mitigate these effects have been proposed.307
Mana Whenua's association with the area and the cultural landscape
16.48 Te Hōpua a Rangi, is so named as the basin of Rangi Huamoa (the wife of
the first Waiohua paramount chief Huakaiwaka). It is recognised as a
culturally important place to Mana Whenua, part of the cultural landscape of
the volcanic ‘deity’ Mataoho (Ngā Tapuwae o Mataoho)308. A number of
Mana Whenua have also identified the importance of this area, for example
the former papakāinga (settlement) behind Onehunga Beach, Te Hōpua ā
Rangi and the many puna/springs in the surrounding Onehunga area (eg on
Princes Street). The former papakāinga site is recognised in the AUP(OP)
as a Site of Significance to Mana Whenua (north of Te Hōpua ā Rangi, at
the intersection of Princes Street and Onehunga Mall).
16.49 The cultural values of this area have been recognised in the following ways:
(a) Mana Whenua input to the option evaluation for Neilson Street
interchange. Ms Linzey explains in her evidence that the alignment
options around Te Hōpua involved specific consideration of the
potential impacts on Te Hōpua. The alignment chosen minimises
cutting through the tuff ring and minimises potential adverse
effects.309
(b) The area is specifically identified in the Urban and Landscape
Design Framework as an area for cultural input;310 and
(c) The cultural values of this area are also recognised in the conditions
which require both Mana Whenua input to urban design
305 Joint Witness Statement for Built Heritage, paragraph 3.7. 306 Matthews EIC, paragraph 1.2. 307 Matthews EIC, paragraph 1.8. 308 Cultural Values Report paragraphs 6.4 – 6.6. 309 Linzey (cultural) EIC, paragraph 9.5(b). 310 Urban and Landscape Design Framework, section 1.3.
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development in this area and that opportunities for artwork in this
area to acknowledge these cultural values are explored.311
17. WAIKARAKA PARK AND CEMETERY
17.1 Waikaraka Park and Cemetery is a large open space area located along the
northern shores of the Māngere Inlet, bounded by Alfred Street, Neilson
Street and Captain Springs Road. It provides a natural counterpoint to the
neighbouring commercial and industrial development.312 Waikaraka Park is
scheduled in the AUP(OP) as a Category B place. Together the Park and
Cemetery form a key reserve and recreational area within the Project area.
17.2 The site was originally set aside in 1881 for public use as a recreation
ground, rifle range and public cemetery. Today, it comprises the Waikaraka
speedway (in the north-west), Waikaraka Park (the eastern half, of which
only the northern part is developed), and the Cemetery (in the south-west).
The Waikaraka Cycleway, which provides a walking and cycling route along
the Māngere Inlet, sits on the southern boundary of the Park and Cemetery.
17.3 Currently, the Cemetery is no longer taking bookings, and once closed it will
be transitioned into a local park.313 Council has also indicated in
discussions with the Transport Agency the potential for the Waikaraka Park
South to be integrated with the Cemetery in the future.314
17.4 There are three key issues raised by submitters in relation to the Cemetery.
These are:
(a) The impact on its heritage features. Given its history, the scheduled
extent of place for Waikaraka Park and Cemetery includes a number
of historic buildings and structures;315
(b) The impact on and change to the current 'quiet contemplation'
experienced by visitors to the Cemetery; and
(c) The change in the relationship of the Cemetery to the Māngere Inlet
as a result of the Project.
311 In particular, the Urban Design and Landscape Management Plan conditions, see condition LV.3(iii), and the Mana Whenua conditions, see MW.2 and MW.3 – MW.5. 312 Matthews EIC, paragraph 7.37. 313 Joint Witness Statement – Waikaraka Park and Cemetery, paragraph 2.3. 314 Linzey (Social Impact) Rebuttal, paragraph 4.11. 315 Matthews EIC, paragraph 7.33.
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17.5 With respect to Waikaraka Park South (which does not have heritage
values), the impact on the sports fields (both existing and proposed) is the
principal issue.
17.6 The multidisciplinary expert conference on Waikaraka Park and Cemetery
involved experts across a wide range of expertise, reflecting the complexity
of the issues in this area. Waikaraka Park and Cemetery was also
discussed at the Urban and Landscape, and Built Heritage expert
conferencing sessions.
17.7 The experts agreed on several key qualities of the Park and Cemetery316
including the tranquillity of the cemetery, the existing noise environment, the
visual, spatial and physical connections with the Māngere Inlet, and
historical ambience and associations. The experts also reached agreement
on the desirability of achieving a high quality edge treatment for the
southern edge of the Park and Cemetery where it abuts EWL.317 This is
now conditioned, and the Transport Agency understands that Auckland
Council is comfortable with this approach.318 This condition is important in
mitigating the adverse built heritage effects on the Cemetery.319
17.8 Following conferencing, only two key issues remained outstanding.
Alfred Street connection
17.9 The first outstanding issue is the form (and timing) of the connection from
Alfred Street to the EWL. The proposal currently includes a pedestrian and
cycle overbridge, with no vehicle access to the EWL from Alfred Street.
The overbridge is located on a north-south orientation which aligns with
Alfred Street and reflects an expected "desire line" between the coast and
northern streets.
17.10 As with other aspects of this Project, there are competing views on this
issue. In relation to the Alfred Street connection, the tension between
disciplines is that the overbridge is preferred from a traffic and transport
perspective,320 but from a purely urban design perspective an at-grade,
multimodal connection is the optimum solution.321
316 Joint Witness Statement for Waikaraka Park and Cemetery, paragraph 4. 317 Joint Witness Statement for Waikaraka Park and Cemetery, paragraph 5.1(c). 318 Condition LV.5F, as attached to Hopkins' Rebuttal. 319 Joint Witness Statement for Built Heritage, paragraph 3.10(a). 320 Joint Witness Statement for Waikaraka Park and Cemetery, paragraph 5.2(b). 321 Joint Witness Statement on urban design and landscape, page 10 at (c).
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17.11 Mr Murray's rebuttal evidence extensively addresses why an at-grade
intersection at Alfred Street (allowing general traffic connections as well as
walking and cycling) would be less safe than the current design, inefficient,
and would lead to poorer transport outcomes and be inconsistent with the
area's operative zoning.322 His conclusion is that an at-grade connection
would not achieve the Project Objectives.
17.12 A full connection would require additional traffic signals on Neilson Street
and EWL, which would add delays (with a real and significant travel delay
cost), and increase the net intersection crash rate on EWL between Galway
Street and Captain Springs Road.323 To accommodate the changes in
turning flows, the Neilson Street intersection would also need to be
signalised, potentially requiring significant realignment to provide a safe
intersection with sufficient sight distances.324 The proposed connection
could also compromise the safety or attractiveness of the pedestrian/cycle
facility on Alfred Street, especially across and north of Neilson Street.325
17.13 A full connection at Alfred Street would negatively affect overall network
efficiency.326 An additional connection would also undermine the EWL's
function as a Limited Access Road. A limited access road has a significant
transport movement function, rather than a property access function.327
The additional connection serves only very localised areas, compromising
that separation of functions and replicating existing problems.328 As
Mr Murray notes, many of the existing problems in the Project area are a
result of the existing network being unable to accommodate conflicts
between different types of roads with different functions.329 These
outcomes would be contrary to Project Objective 1, which is to improve
travel times and travel reliability between businesses in the Onehunga-
Penrose industrial areas and SH1, and SH20.330
17.14 A direct all-vehicle connection from Alfred Street to EWL would likely
facilitate a change in land use to a more residential, commercial and retail
nature, thereby not integrating land use with transport planning.331 This
322 Murray Rebuttal, paragraphs 9.2 - 9.3. 323 Ibid, paragraphs 9.18 - 9.20. 324 Ibid, paragraph 9.22. 325 Ibid, paragraph 9.23. 326 Ibid, paragraph 9.19. 327 Ibid, paragraph 9.26. 328 Ibid, paragraph 9.28. 329 Ibid, paragraph 9.27. 330 Ibid, paragraph 9.19. 331 Ibid, paragraph 9.4.
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step would be inconsistent with the area's industrial zoning that Auckland
Council very recently confirmed in the AUP(OP).332
17.15 Mr McIndoe for Auckland Council has sought to include the full intersection
as part of the Project as mitigation for the change in relationship of the
Cemetery to the Māngere Inlet.333 However, he does concede in evidence
that “at the very least, Alfred Street should be ‘connection-ready’”.334 The
Transport Agency has confirmed that the design can accommodate such a
connection in the future if it was desirable to do so, and that a future
connection is not precluded by the Project.335
17.16 As a corollary of Mr McIndoe's desire for a full connection, he also seeks to
relocate the proposed overbridge to at or closer to the centre of Waikaraka
Cemetery.336 The Transport Agency does not support a mid-block location
for the overbridge, as the location has adverse built heritage effects and
poorer urban design outcomes.337 Both Auckland Council and the
Transport Agency's built heritage experts agreed that this location may
further detract from the outlook from the Cemetery.338 From an urban
design point of view, a position mid-block would also be more isolated from
street activity.339 The current location is preferable as it visually and
physically extends the urban grid, supporting the strong existing visual and
physical "desire line".340
17.17 Mr McIndoe also criticises the connection for not providing universal
access.341 In response, the Transport Agency notes that the Project design
provides shared path access from parking spaces along Alfred Street to the
foreshore paths, and that in detailed design universal access could be
achieved by implementing appropriate design standards.342
17.18 The Transport Agency considers that, notwithstanding the potential urban
design benefits of an at-grade connection, the adverse transport
performance of such a connection means that it should not be included at
this stage. Instead the design should, and does, ensure that a full
332 Ibid, paragraph 9.5. 333 McIndoe EIC, paragraph 13.13(b). 334 Ibid, paragraph 12.4. 335 Hancock Rebuttal, paragraph 5.20. 336 McIndoe EIC, paragraph 3.4(c) and 3.6. 337 Matthews Rebuttal, paragraph 4.14. 338 Joint Witness Statement on Built Heritage, paragraph 3.10(c). 339 Hancock EIC, paragraph 15.11. 340 Ibid, paragraph 15.11. 341 McIndoe Rebuttal, paragraph 2.6(a). 342 Murray Rebuttal, paragraph 8.11.
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connection is not precluded in the future, perhaps as part of any future plan
change for the area.
Waikaraka Park South
17.19 The second outstanding issue relates to the extent to which the
development of sports fields elsewhere is necessary to mitigate effects as
part of this Project.343 As part of its suggested mitigation for open space,344
Auckland Council considers that the Transport Agency should construct two
sports fields in Gloucester Park north to meet the capacity needs which
were to be met at Waikaraka Park South.345 In Ms Hannan's view, the
proposed construction yard in the undeveloped part of Waikaraka Park
South has, and will continue to prevent Council from meeting the needs of
the community and addressing the current under-provision of sports fields
in the area.346
17.20 The Transport Agency does not consider that this suggested mitigation is
necessary to address the social effects of the Project. Ms Linzey outlines in
her rebuttal evidence the Project's key design and mitigation responses to
accommodate and provide for the future development of the Park.347 These
include aligning the Project design with the design in the Council's draft
concept plan,348 early establishment of passive open space in Waikaraka
Park South, aligning the indicative parking area in the construction yard with
the proposed parking areas in the draft concept plan,349 and reinstating the
proposed construction yard in Waikaraka Park South to enable Council’s
planned sports fields development.350
17.21 The Transport Agency considers that these responses more than
adequately address the social effects of the Project and that the provision of
these additional sports fields is unwarranted, especially given that the
343 Joint Witness Statement for Waikaraka Park and Cemetery, paragraph 5.5(c). 344 Mr Matthew Gouge for Auckland Council notes in his rebuttal at paragraph 2.35 that "the project does not adequately respond to the social effects corresponding to an inability to develop Waikaraka Park South in particular and is therefore considered to be inconsistent with the open space policies relating to the timely provision of these facilities (Policy H7.3(1))". 345 Hannan Rebuttal, paragraph 1.6(g). 346 Hannan Rebuttal, paragraph 1.6(a). Ms Hannan's concern is that since the Project was made known, the Council has had to put on hold its planned development of sports fields in Waikaraka Park south, and that the delivery of the sports fields will be delayed by at least four years beyond the projected 2018 opening date. 347 Linzey (Social Impact) Rebuttal, paragraph 4.13. 348 Draft Concept Plan/ Development Plan approved for consultation in 2015. 349 Draft Concept Plan/ Development Plan approved for consultation in 2015. 350 Linzey (Social Impact) Rebuttal, paragraph 4.13; and Wickman EIC, paragraph 10.18.
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construction yard will not affect the existing sports fields in Waikaraka Park
north.351
18. BIODIVERSITY AND NATURAL FEATURES – ANNS CREEK AND
MĀNGERE INLET
18.1 The Project area contains a wide variety of ecological values. Some
landward parts of the Project area have been highly modified through
urbanisation and industrialisation. However, there are remaining areas of
high ecological values at Anns Creek and small remnant areas of lava
shrubland and salt marsh along the northern shoreline of the Māngere Inlet.
The coastal marine area has high ecological value for avifauna, as roosting
and foraging grounds for a number of sea bird and wading bird species.
The Manukau Harbour is internationally recognised as a habitat for
migratory birds.
18.2 These ecological values are reflected in the identification within the
Auckland Unitary Plan of a number of Significant Ecological Areas. The
Transport Agency has been highly conscious of these ecological values
during its assessment and identification of the Preferred Corridor and
Preferred Alignment. Natural environment values were a specific criterion
within the assessment of alignment options.
18.3 The Preferred Alignment, however, has had to respond to a wide variety of
constraints and will have adverse impacts on a number of the ecological
values present within the Project area. A comprehensive assessment of
those potential adverse impacts was undertaken within the AEE and
addressed the following five areas:
(a) Terrestrial ecology (Shona Myers);
(b) Herpetofauna (Katherine Muchna);
(c) Freshwater ecology (Eddie Sides);
(d) Marine ecology (Dr Sharon De Luca); and
(e) Avifauna (Dr Leigh Bull).
18.4 In addition the positive ecological benefits of the Project (primarily the
improvement in water quality) were also fully assessed. The assessment
351 Wickman EIC, paragraph 10.17.
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process used the EIANZ (Environmental Impact Australia and New
Zealand) assessment methodology which included identification of the
significance of the ecological values that are affected and the level of effect.
This assessment methodology has been accepted by all expert
ecologists.352
18.5 Alongside the identification of adverse effects, an integrated package of
mitigation, enhancement and offset has been developed by the Transport
Agency. This package is described within the AEE, in particular Technical
Report 16, and within the evidence of Dr De Luca. 353 Importantly, the
expert ecology team determined that a combined and integrated response
to the adverse ecological effects was necessary and appropriate, primarily
due to the fact that some adverse effects could not be directly avoided,
remedied or mitigated, or offset.
18.6 During expert conferencing for ecology, all experts agreed that an
integrated response is appropriate, although Mr Bishop for the Council
considers that, despite the significant mitigation and offset measures
proposed, the outcome of no net loss of indigenous biodiversity is still
uncertain. Similarly, Dr Sivaguru recognised the benefit of the research
projects proposed as part of the integrated response, but did not consider
this to be sufficient to mitigate or offset the effects of the Project.354
18.7 Significant adverse effects on ecological values arising from the Project
include:
(a) Loss of bird foraging habitat within the Māngere Inlet;
(b) Individual mortalities to birds during construction and potential
disruption to breeding areas. However, any impact on populations
of any species is very unlikely;
(c) Loss of ecosystem integrity within Anns Creek;
(d) Loss of threatened plant species within Anns Creek lava shrubland;
352 Joint Witness Statement for Ecology, paragraph 5. 353 De Luca EIC, section 10. 354 Joint Witness Statement for Ecology, paragraph 12.
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(e) Disruption to avifauna and its habitat from boardwalks and presence
of people on the reclamation.355
18.8 The Project has sought to avoid and minimise those adverse effects
through a number of specific measures:
(a) The construction of a viaduct over Anns Creek estuary which is a
Significant Ecological Area Marine 1;
(b) Minimisation of the reclamation extent whilst still achieving the other
design and Project requirements;
(c) Locating the alignment to the northern most extent of Anns Creek
East thereby avoiding the majority of the lava shrubland area;
(d) Locating the route through Anns Creek East on a viaduct in order to
prevent the permanent removal of the lava shrubland and its
associated plant species; and
(e) Identification of exclusion areas within Anns Creek East where
permanent pier structures will not be located and where construction
activities shall not occur.
18.9 Despite these measures, there are still a number of residual significant
adverse effects, in relation to Anns Creek east and the reclamation impact
on avifauna. These residual adverse effects will be addressed, albeit not
avoided, through the integrated ecological response.
18.10 This includes a number of offset and enhancement measures relating to the
affected values. Of most significance are the following:
(a) Weed protection and restoration planting within Anns Creek East to
reduce the current degraded state of the environment and secure
long term improvement;
(b) Long term protection and management of Ngarango Otainui Island.
The Transport Agency has now purchased the Island and so has full
control over works on the Island;
355 The evidence of Dr Bull is that there is a permanent loss of habitat from the reclamation footprint and a further loss of effective habitat due to the presence of people and dogs which means birds are not likely to use areas close to the coastal edge for feeding and roosting (Bull EIC, paragraph 8.26).
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(c) Long term protection of Anns Creek East (subject to negotiations
with the current property owner and Public Works Act processes);
and
(d) A package of measures to protect and enhance avifauna values at
other sites around the Māngere Inlet, Manukau Harbour and
breeding sites within the South Island.356 These measures have
been developed in close consultation with the Department of
Conservation and the Transport Agency's ecological experts. These
measures require actions by third parties and the Transport Agency
acknowledges that there is a level of uncertainty involved within the
delivery of some components of the package.357 However, the
expert opinion is that the package provides the optimal benefit to
avifauna values and that other options which are within the control of
the Transport Agency are less beneficial. Given the ecological
values that are affected, there are few options within or near to the
Project area to address these effects.
18.11 As outlined in the conferencing statement, all relevant ecologists agree that
if the package of ecological response is implemented then the adverse
effects on ecology can be adequately addressed (with the exception of
Craig Bishop on behalf of the Auckland Council).358
18.12 The integrated ecological response has been developed as one integrated
package but has recognised the difference between mitigation of direct
effects, offsetting of those effects and enhancement of other ecological
values.359 The integrated package includes all three aspects.
356 These measures include statutory protection of existing wading bird high tide roosts within the Manukau Harbour and within the Māngere Inlet and Ngarango Otainui Island, constructing a suitable single purpose high tide wading bird roost in the Māngere Inlet and contributing towards management programmes at South Island wading bird breeding sites along the major braided rivers. These are described in the evidence of Dr Bull and Ms Hopkins and Conditions EM, 14A, B and C. The offset measure to engage with owners of the industrial building in Ōtahuhu was discussed in evidence but has not yet been included in the conditions. This will be addressed once the next set of revised consent conditions is presented. 357 In particular the process to achieve statutory protection for other high tide roosts in the Māngere Inlet. In the event that the Board considered that there was an unacceptable level of uncertainty for certain offset measures, the Transport Agency proposes that other more certain measures, should be added to the package and secured through appropriate conditions of consent. 358 This is confirmed in the rebuttal evidence of Ms Myers, Dr Bull and Dr De Luca. 359 As outlined in the case authorities of J F Investments Limited v Queenstown Lakes District Council EnvC C48/2006 and Royal Forest and Bird Protection Society of New Zealand Inc v Buller District Council [2013] NZHC 1346.
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Natural Features
18.13 In addition to ecological matters, Anns Creek contains a number of
geological heritage features. Lava flows within and around the Anns Creek
area are identified as Outstanding Natural Features in the AUP(OP).
18.14 Dr Smith explains that the outcrops of lava flows within Anns Creek are
thicker and more visible than those further to the west within the Inlet and
there are areas of unmodified flow top that have significance as
volcanological features. There is an area of pahoehoe (ropey) texture on
the foreshore within the Anns Creek Estuary area.360 As mentioned, these
lava flows provide a unique environment for indigenous flora.
18.15 The EWL will pass over the ONF areas on viaduct structures. The design
of the alignment was carefully planned to specifically avoid the most
sensitive parts of these features, and the conditions of consent contain
methods to ensure that adverse effects on these areas will be minimised.
Dr Smith and Mr Jamieson for the Council attended conferencing and
agreed that:361
(a) There will be no adverse effects on the Anns Creek Estuary part of
the ONF;
(b) There will be no adverse effects on the Anns Creek West part of the
ONF; and
(c) In Anns Creek East, implementation of the Construction Restriction
Area Map and associated conditions will minimise the physical
effects on the significant geological features within Anns Creek East.
The residual effects on the geological values will be less than minor.
18.16 Dr Smith and Mr Jamieson also agreed that the provision of interpretive
signage will enhance the value of the feature for public education.362
18.17 The Anns Creek area has received significant attention and a number of
design, mitigation and offset measures are proposed to address the
adverse effects of the Project and ultimately improve the values of the area.
360 Smith EIC, paragraphs 7.18 – 7.25. 361 Joint Witness Statement on geological heritage, paragraphs 6.1 - 6.11. 362 Joint Witness Statement on geological heritage, paragraph 6.10.
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19. KEY INFRASTRUCTURE
19.1 Establishing the alignment across the narrow isthmus involves a number of
interactions with key network infrastructure. It is also a fundamental reason
for the Project being located in this area, as the Project needs to integrate
with both SH20 and SH1. The Transport Agency recognises the
importance of carefully managing these interactions to ensure that both the
EWL, and this infrastructure, can happily co-exist including during
construction works. The infrastructure that must be accommodated
includes:
(a) Transpower's high voltage transmission lines;
(b) Transpower's rail electrification substation at Southdown.
(c) Spark's cellular communication towers, one at Sylvia Park Road/Great
South Road and the other at Frank Grey Place/ Princes Street;
(d) First Gas Limited's high pressure gas pipeline;
(e) Watercare Services' water and wastewater assets; and
(f) KiwiRail's existing railway network.
19.2 The application material and the evidence outlines the extensive
engagement that has been undertaken with network utility operators
regarding impacts on their assets. Since the application was lodged, further
discussions have been held with the some network utility operators,
summarised later in this section.
19.3 As Mr Nancekivell states, the relocation and/or protection of network
infrastructure is a normal part of construction for a project of this scale.
There are well-established procedures across the industry that will be
implemented for these works. Where practicable, necessary mitigation
works will be undertaken as enabling works to the main Project construction
works.363
19.4 The Transport Agency is continuing to work with the affected network utility
operators to identify the processes and procedures to either relocate or
manage network utilities during the construction and operation of the
Project.
363 Nancekivell EIC, paragraph 7.20.
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19.5 As a result of these further discussions, design changes have been
identified to address effects on these networks as discussed by
Mr Nancekivell. Ms Hopkins has also recommended some amendments to
conditions to reflect these changes and submissions received from the
network utility operators. In some instances approvals pursuant to s177
RMA will also be required from network utility operators in their role as a
requiring authority for existing designations affected by the Project.
19.6 Issues with First Gas, Watercare and Spark have been relatively straight-
forward and have been addressed in conditions to those parties'
satisfaction. The most complex issues relate to Transpower's transmission
assets along the alignment and the rail supply sub-station, which conflicts
with the alignment.
19.7 In general, Ms Hopkins considers that the proposed Utilities Management
Plan, developed in liaison with the relevant network utility operators, is an
appropriate tool to document the agreed procedures to be implemented
during construction.364
Transpower assets
19.8 The Project has a range of impacts on three specific transmission lines
traversing the Project area, but the alignment generally corresponds with
the East West alignment of Transpower's Henderson – Ōtāhuhu A 220 kV
Line. Impacts on these lines range from the need to relocate and replace
tower assets (and as a result to shift lines) within the footprint of the road
alignment, to situations where works (principally earthworks) are required
within proximity of tower footings thereby triggering various dispensation
requirements in the New Zealand Electrical Code of Practice for Electrical
Safe Distances (NZECP34). Access to other tower assets will be
compromised by the Project and will require specific works to maintain or
reconfigure access. In some instances, dispensation may also be required
for infringement of clearance distances from National Grid support
structures required by NZECP34.
19.9 At a number of points, detailed in the evidence of Mr Noble for Transpower,
the interface between towers and the EWL infrastructure will need careful
management.365 The work undertaken to date by both Transpower and the
364 Hopkins EIC, paragraph 8.95. 365 Noble EIC, paragraphs 47 - 51.
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Transport Agency has confirmed that the line infrastructure can co-exist and
there is a suite of conditions which provide for this to occur. These
conditions include the requirement for ongoing Transpower involvement in
construction, including in contractor briefings for works that may affect
Transpower assets, and a new condition to address ongoing access to
Transpower assets during construction and operation of the EWL.366
19.10 Mr Noble's evidence for Transpower discusses the nature of the
dispensation process. Transpower has not expressed any specific concern
at the need for dispensations, or that they may not ultimately be granted,
and has acknowledged that the appropriate timing for those to be obtained
will be at the detailed design stage when the precise parameters of any
dispensation matter will be confirmed.
19.11 As already rehearsed in the application by TOES (et al) for an adjournment,
issues have been raised,367 as to the alignment's proximity to Tower 31
(T31). This tower is located on the Local Lockup's property on Gloucester
Park Road south. To address this matter to Transpower's satisfaction, the
design of the south bound on ramp has been adjusted to provide greater
clearance from T31. This is shown on the revised drawings. The Transport
Agency is satisfied that, with further refinement during detailed design and
further guidance from Transpower, T31 can remain in this location.
19.12 Mr Horne's evidence (for Transpower) is that Transpower will need to obtain
resource consent for the relocation and replacement of some assets as a
result of the Project.368 Transpower is working closely with the Transport
Agency to coordinate necessary consent applications with the programme
of EWL construction works. The Transport Agency will provide whatever
assistance is required and any costs associated with consenting will be
borne by the Transport Agency. In anticipation of the need for consent
Mr Lister has already given a preliminary assessment of visual effects
associated with the replacement of existing towers with new pole structures
in Sector 4.369
366 Condition NU.5. 367 Mead EIC, paragraphs 72 - 77 and Jackson EIC, paragraphs 52 - 61. 368 Horne EIC, paragraphs 1 - 3. 369 Lister EIC, paragraph 8.60(b) and Technical Report 6, Landscape and Visual Impact Assessment, page 37.
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Southdown Substation
19.13 A key issue for KiwiRail, Transpower and Mercury is the relocation of the
Southdown substation (owned by Transpower), which feeds KiwiRail's
electrical rail system. The alignment is very constrained in this location,
particularly due to the Anns Creek ecological areas and Outstanding
Natural Features, which make it very difficult to avoid the substation.
Mr Nancekivell explains that the Project team is working with Transpower
and KiwiRail to provide for relocation of this asset.370
19.14 The relocation plan is reflected in the conditions, with KiwiRail's requests for
refinement of conditions being actioned. The conditions now provide for the
following:371
(a) Managing any works that have the potential to affect electricity supply
for the rail network;
(b) Ensuring that any mitigation measures are in place prior to works
commencing;
(c) Ensuring that any replacement rail supply substation is fully
operational prior to decommissioning the existing rail supply
substation; and
(d) That all measures are agreed by parties with a direct interest in the
operation of the rail supply substation and the rail network.
20. DREDGING
20.1 The proposal includes dredging within the Māngere Inlet in order to obtain
material to be used for the construction of the reclamation. The material
would be used to form mudcrete, a combination of marine sediments and
Portland cement.372 Mudcrete is a commonly used material for the
construction of reclamations and has been used most recently and
successfully for the creation of the Fergusson Terminal, by Ports of
Auckland. The Transport Agency's experts have been closely involved in
that process and therefore understand the environmental effects and the
construction costs and benefits of this approach.
370 Nancekivell EIC, paragraph 15.86. 371 Hopkins Rebuttal, paragraph 6.98 and condition NU.10. 372 Priestley EIC, paragraphs 1.13-1.14.
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20.2 The use of mudcrete provides significant construction flexibility and there
are also notable cost savings if mudcrete is used instead of material being
brought to the site from other locations.373
20.3 The Auckland Council opposes the inclusion of dredging on the grounds
that it will create adverse effects and that alternative methods of
constructing the reclamation have not been identified and explored.374
20.4 The Transport Agency's witnesses have assessed the effects of dredging
and consider that they are temporary in nature and will occur only during
the dredging period, with no long term adverse effects. During the dredging
period, the effects will be generally minor and occur predominantly when
the actual dredging is taking place:
(a) The site for the dredging was carefully selected in order to avoid
areas of high ecological value, to correspond with areas of Asian
date mussel (a pest species) and avoid tidal channels;375
(b) The design and location of the dredging has therefore avoided a
number of potential effects;
(c) Mr Priestley's evidence is that there will only be a minor adverse
effect on coastal processes and this will be temporary, with no long
term effects;376
(d) Mr Udema has assessed the contamination within the marine
sediments and considers that contamination levels in those
sediments are generally low. For contaminants that are at elevated
levels, those contaminants exist at the moment in the environment
and the dredging activity will not increase their concentrations in the
existing environment;377
(e) Dr De Luca's evidence is that there will be moderate ecological
effects from the dredging, but this will only occur whilst the
operations are being undertaken and there will be no long term
ecological effects. She considers that the disturbed contaminants
373 If material is brought from other sites this is estimated to increase the costs of the Project by $8m. See Priestley Rebuttal, at paragraph 4.11. 374 Coombes (Auckland Council) EIC, paragraph 12.22. 375 Priestley EIC, paragraph 6.9. 376 Priestley EIC, paragraphs 1.14 and 8.32. 377 Udema Rebuttal, paragraphs 1.2, 7.22 to 7.23.
BF\57040744\1 Page 98
will not be bio-available and therefore will not have an adverse
impact on the marine ecology;378 and
(f) Dr Bull's evidence is that there will be minor adverse effects on
avifauna, habitant and feeding arising from the mobilisation of
sediment.379
20.5 On the basis of this evidence, the Transport Agency sees no environmental
reason why the dredging cannot occur. In order to assist the Board and
respond to the concerns of Auckland Council, it has also provided additional
information380 that outlines potential alternative means of construction the
reclamation should dredging not occur, or only occur in part. Mr Priestley's
evidence is that, should sub-tidal dredging not be favoured, dredging within
the reclamation footprint should be approved and can be undertaken
relatively easily.
20.6 The Project contains a number of resource consent conditions which are
consistent with the standard practice of Auckland Council and have been
used in a large number of dredging projects across Auckland.381 which will
re-assess the existing environment prior to dredging and then manage the
construction and dredging process.
21. CONSTRUCTION IMPACT
21.1 The construction phase of the Project will have a range of potential adverse
effects on the environment. A number of these have been addressed in the
technical reports and evidence presented by the Transport Agency's
experts. They include settlement, erosion and soil control measures,
archaeology, disturbance of contaminated land and groundwater and
effects on terrestrial ecology and birds.
21.2 The issues of particular concern to submitters are construction traffic
effects, noise and vibration effects and air discharge effects and other
social impacts.
21.3 Mr Gliddon, the Highway Manager for Auckland and Northland for the New
Zealand Transport Agency, explains that the Transport Agency has a
proven history of using best practice in construction. The Transport Agency,
378 De Luca EIC, paragraphs 9.15 to 9.20. 379 Bull EIC, paragraphs 8.19 to 8.20. 380 Priestley Rebuttal, paragraphs 4.5 to 4.22. 381 Priestley Rebuttal, paragraph 4.20.
BF\57040744\1 Page 99
and its contractors and advisors, have extensive experience in large,
complex road construction projects, including complying with complex and
integrated designation and consent conditions. The Transport Agency has
developed excellent working relationships with the key regulatory agencies
(Auckland Council, DOC and HNZPT) and achieves a high level of
compliance.382
Construction traffic
21.4 During construction there will be temporary adverse effects on road users
due to an increase in heavy construction vehicles, road and lane closures
and the introduction of temporary speed limits. This may cause congestion
and travel time delays for road users and will affect property access.
21.5 Mr Wu's evidence is that with the proposed conditions and management
plan framework in place, the effects of construction activities on traffic can
be appropriately managed.383 The management plan framework includes:
(a) A Construction Traffic Management Plan Framework which was
submitted with the application. This document guides the
philosophy that the Project will follow in the delivery of all temporary
traffic management;
(b) A Construction Traffic Management Plan;384
(c) Site Specific Traffic Management Plans;385 and
(d) Proposed designation conditions.386
21.6 During conferencing by various experts on construction traffic effects, the
experts agreed that the majority of the concerns raised by submitters can
be addressed by amending the proposed designation conditions.387
21.7 A key concern for submitters is ensuring that access to their sites will be
maintained during construction. Mr Wu says that access will be reviewed
and developed on a site by site basis as part of Site Specific Traffic
Management Plans. However, he agrees that the conditions should provide
382 Gliddon EIC, paragraph 7.3. 383 Wu EIC, paragraphs 1.15 and 10.9. 384 Wu EIC, paragraph 8.35 and proposed designation condition CT.1 and CT.2. 385 Wu EIC, paragraph 8.36 and proposed designation condition CT.4. 386 Proposed designation conditions CT.1 - CT.9. 387 Joint Witness Statement for Traffic and Transportation, section 2.
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for access to be maintained to private properties during construction, unless
agreements are reached for alternative arrangements.388
Construction noise and vibration
21.8 The Project's construction will inevitably give rise to noise and vibration
effects, which are an important consideration of the amenity effects of the
Project.
21.9 The Project has adopted a robust regime of noise and vibration
management measures to manage these effects. These measures are
anchored in the three management plans that are set out at conditions
CNV.1 to CNV.7B. These are the:
(a) Construction Noise and Vibration Management Plan (CNVMP);
(b) Site Specific Construction Noise Management Plan; and
(c) Site Specific Construction Vibration Management Plan.
21.10 The CNVMP will provide a framework to mitigate and manage construction
noise and vibration appropriately for the variety of circumstances within the
Project area. The plan will outline the criteria, equipment, duration of
works, general mitigation and management measures, communication
strategies, monitoring, responses to complaints and a process of preparing
management schedules containing site specific information.389
21.11 The site specific construction noise management plans will apply where full
compliance with the relevant construction noise criteria cannot practicably
be achieved.390 The objective of these plans is to set out the best
practicable option for the management of construction noise effects.
21.12 During conferencing it was agreed that a site specific construction vibration
management plan is required for the Stratex and Tip Top (Fonterra) sites
(due to the vibration sensitive equipment used within these buildings).
These site specific plans will set out the processes and methods for
388 Wu EIC, paragraphs 1.7 and 1.10 and proposed designation condition CT.4. 389 Wilkening EIC (Construction), paragraph 8.30, proposed designation condition CNV.2. 390 Wilkening EIC (Construction), paragraph 8.31, proposed designation condition CNV.6A.
BF\57040744\1 Page 101
determining vibration limits and management.391 The conditions have been
amended to reflect this agreement.392
21.13 During conferencing there was disagreement about the following two
matters:
(a) Vibration Criteria: which vibration criteria should be used to set the
vibration limit in the conditions.393 Ms Wilkening explains in her
rebuttal evidence that the criteria proposed by Mr Millar for Fonterra
were highly conservative and that the criteria she has recommended
are appropriate to manage effects.394 In addition, as mentioned, a
specific vibration plan will be developed for Stratex and Fonterra
under condition CV.7B, which will include appropriate vibration
criteria for the vibration sensitive equipment;
(b) Providing the framework for a CNVMP.395 Ms Wilkening explains
that a skeleton CNVMP would not provide any useful information
until a contractor is appointed and more information is known about
likely construction methods. Ms Wilkening states that the conditions
(CNV.1 to 3) specify what the CNVMP must include and that the
CNVMP will require submission to Council, thus ensuring that
checks and balances are maintained.396
21.14 Preparation and implementation of this framework of management plans is
a well-established process for the Transport Agency. Ms Wilkening states
that this framework has been used successfully on several large scale
roading projects, and she considers that with the management techniques
provided by the proposed designation conditions in place, construction
noise and vibration effects will be mitigated or managed to reduce effects
as far as practicable.397
Air discharges
21.15 Several submitters are concerned about the impacts of dust discharged
during construction works.
391 Joint Witness Statement on noise and vibration, dated 29 May 2017, paragraph 2.9. 392 Proposed designation condition CNV.7B. 393 Joint Witness Statement on noise and vibration, dated 29 May 2017, paragraph 2.19. 394 Wilkening Rebuttal (Construction), paragraphs 4.31 – 4.38. 395 Joint Witness Statement on noise and vibration, dated 7 June 2017, paragraph 3.13. 396 Wilkening Rebuttal (Construction), paragraphs 4.22 – 4.24 and proposed designation condition DC.9. 397 Wilkening EIC (Construction Noise), paragraphs 8.32 and 11.4.
BF\57040744\1 Page 102
21.16 During expert conferencing, all experts agreed that a Construction Air
Quality Management Plan is the appropriate method to minimise the effects
of these discharges.398
21.17 During conferencing there was disagreement about the following two
matters:399
(a) Mitigation of dust effects on specific sites (Mercury and Stratex); and
(b) Management of asbestos-contaminated soil.
21.18 Ms Needham addresses both of these points in her rebuttal evidence, and
notes that condition AQ.2 has been amended to include contingency
measures in the Construction Air Quality Management Plan. This will
ensure that if any dust control measures were to fail, then contingency
measures would be undertaken, such as compensation for any required
cleaning of dust.400
21.19 Any impacts from disturbing soil contaminated with asbestos will be
anticipated and managed through a management plan as specified under
the conditions related to contaminated land.401
21.20 Ms Needham's evidence is that the proposed consent conditions and
Construction Air Quality Management Plan will provide a robust mechanism
to minimise adverse air quality effects from the construction of the
Project.402
Social impacts during construction
21.21 In addition to the effects outlined above, the Project will also impact on
public access to open space during construction. In particular, there will be
disruptions to access to open space and walkway linkages, particularly at
Waikaraka Park and for the Waikaraka Walkway.403
21.22 Ms Linzey's evidence is that the potential adverse social effects during
construction can be appropriately mitigated by:404
398 Joint Witness Statement on air quality, paragraph 4.2 and proposed consent condition AQ.2. 399 Joint Witness Statement on air quality, sections 5 and 6. 400 Needham EIC, paragraph 10.17. 401 Needham Rebuttal, paragraph 4.13 and conditions CL.1 and CL.2. 402 Needham Rebuttal, paragraph 1.6. 403 Linzey EIC (Social), paragraph 1.5. 404 Linzey EIC (Social), paragraph 1.7.
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(a) Maintenance of key linkages and accessways during the day,
particularly access across Princes Street and from Old Māngere
Bridge to the Onehunga Town Centre;405
(b) The implementation of measures within the Construction
Environment Management Plan406 and the Construction Traffic
Management Plan,407 in respect of traffic management,
management of construction works to appropriately limit noise and
air discharges and other measures included in the suite of
management plans to consider impacts on the community and
residents;
(c) The requirement for a communications plan and ongoing community
involvement in elements of design, construction planning and
construction implementation (including a business liaison forum and
a Community Liaison Group for the ongoing liaison with residents/
businesses);408
(d) Early establishment of passive open space within Waikaraka Park to
provide replacement open space for walkways and foreshore areas
disrupted by construction works;409 and
(e) Provision of temporary parking at Waikaraka Park410 and additional
parking at Hugo Johnston Drive411 to provide access to walkway
linkages (again providing longer term benefits for the use of these
facilities).
22. MANAGING EFFECTS OF THE PROJECT
22.1 Five main methods have been used throughout the development of the
Project to avoid, remedy or mitigate adverse effects on the environment.412
These include:
(a) Alignment selection and refinement and development of an integrated
Project design. A number of potential adverse effects of the Project
405 Proposed designation conditions CT.1 and CT.2. 406 Proposed resource consent conditions RC.10 – RC.14. 407 Proposed resource consent conditions CT.1 – CT.9. 408 Proposed designation condition CS.2 – CS.4. 409 Proposed designation condition ROS.2. 410 Proposed designation condition ROS.2. 411 Drawing Set 3: Road Alignment, sheet 7. 412 Hopkins EIC, paragraph 11.1.
BF\57040744\1 Page 104
have been avoided through the integrated Project design and
alignment selection process.413 For example:
(i) In Anns Creek the alignment has been pushed as far out of the
key ecological areas as practicable;414 and
(ii) Mutukāroa-Hamlins hill, an area of significant cultural value, was
avoided through route selection.415
(b) Design measures have also been incorporated to remedy or mitigate
adverse effects.416 For example, trenching EWL alongside
Onehunga Harbour Road and placing a land bridge over the trench
to improve connectivity. Other examples include placing the EWL
on structure through Anns Creek to avoid areas of geological and
ecological value, the use of the elevated shared Kāretu Path to
mitigate the visual effects of the EWL structures in Sector 4 and
extensive landscape treatment throughout the Project area to
remedy and mitigate adverse landscape and visual effects of
earthworks and built elements of the Project;
(c) A comprehensive set of conditions to attach to the designations and
conditions which clearly set out the key measurable standards and
prescribe methods to achieve those outcomes.417 Specific
conditions lock in key outcomes that are identified as important to
managing effects;418
(d) As part of the conditions, a suite of management plans are
proposed. These provide measures, procedures and standards to
manage certain effects of construction and operation and will be
adapted to reflect the detailed design, community engagement, site
specific issues and address a range of circumstances that could
arise while the Project is being built.419 Ms Hopkin's evidence details
the different levels of management plans and other documents that
will be delivered as part of the Project;420
413 Hopkins EIC, paragraph 11.3. 414 Hopkins EIC, paragraph 11.3. 415 Hopkins EIC, paragraph 11.4. 416 Hopkins EIC, paragraph 11.5. 417 Hopkins EIC, paragraph 11.1(b). 418 Hopkins EIC, paragraph 11.1(e). 419 Hopkins EIC, paragraph 11.21. Attachment D shows the proposed management structure plans. 420 Hopkins EIC, paragraphs 11.23 and 11.24.
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(e) The conditions also incorporate other environmental management
approaches such as ecological offsets, monitoring and contingent
requirements, and 'best practicable option' for noise mitigation and
stormwater management;421
(f) There are other mitigation methods that sit outside the RMA. This
includes asset owner transfer agreements, relocation requirements,
legal protection of Anns Creek East and Ngarango Otainui Island
under other legislation such as the Conservation Act 1987, Wildlife
Act 1953 and the Reserves Act 1977.422 In addition, the Public
Works Act also provides compensation for property related effects.
22.2 A number of parties have raised site specific planning and assessment
issues, expressing the view that the AEE has not had detailed regard to
their individual site and the effects on it (in some cases where they consider
there is a significant adverse effect on a particular site). This is not the
case.
22.3 The Transport Agency accepts that individual residents and businesses will
experience effects (noting that post-construction these will largely be
positive) which need to be appropriately managed. While a detailed site
assessment has not been undertaken for each individual site affected by
the Project (which would be difficult to do in the absence detailed design),
potential effects have been identified and considered at a broader scale to
ensure that they can be appropriately mitigated. The Transport Agency
considers that the conditions provide a framework within which the effects
on individual sites will be adequately addressed. The conditions provide for
the management of effects across the Project by incorporating specified
outcomes and performance requirements. There is a tool kit of mitigation
measures available to achieve those outcomes. The management plan
process provides for site specific engagement prior to construction to
ensure property owners' requirements are appropriately managed.
421 Hopkins EIC, paragraph 11.1 (d). 422 Hopkins EIC, section 13 Mitigation and Management Methods outside the RMA.
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PART 3
23. SPECIFIC SUBMITTER ISSUES
23.1 While a number of site specific issues have been raised, it is important not
to lose sight of the high level of support for this Project, not only in terms of
strategic and policy direction, but from key stakeholders and a variety of
other submitters, including a number of businesses and landowners in the
Project area.
23.2 There have been a large number of submissions received in support of the
Project, with 94 submitters supporting the Project either in full or in part. Of
the submissions received, over 20% of submitters indicated that they would
like the Board to approve the proposal (in some cases, with conditions).423
23.3 Submitters in support comprise a mix ranging from individuals, community
groups, businesses and local and central government agencies.
Submissions in support of the Project were received from key stakeholders
in the area, including Auckland Council, Auckland Transport, KiwiRail, iwi
groups, Infrastructure NZ, the NZ Automobile Association, NZ Heavy
Haulage Association, National Road Carriers (Inc), Downer, Auckland
Business Forum, Fonterra and Kiwi Property Group. Neither Heritage NZ
nor the department of Conversation are opposed to the Project.424
23.4 Some of these submitters and groups focus on and highlight benefits of the
Project including:
(a) Addressing severe transport problems, including congestion, in the
Onehunga-Penrose area;425
(b) Enable more efficient and safe transport for freight in the area in
Onehunga, Mt Wellington and wider regional and inter-regional
connections;426
(c) Regional and inter-regional economic benefits arising as a result of
the transport-related benefits including reducing congestion and
improving connections;427
423 We refer to the Analysis of Submissions prepared by the Environmental Protection Authority, dated April 2017. See in particular paragraphs 4.1 and 4.2. 424 In some cases, these submitters supported or partially supported the Project subject to conditions. 425 For example: Infrastructure NZ, NZ Automobile Association, Waste Management NZ Ltd 426 For example: NZ Heavy Haulage Association, National Road Carriers (Inc) 427 For example: Auckland Business Forum, National Road Carriers (Inc), Infrastructure NZ
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(d) Removal of local conflicts between heavy commercial traffic and
pedestrian and retail traffic in the Onehunga Town Centre area and
other local roads;428
(e) A safe cycleway that is separated from the main alignment;429
(f) Includes bus priority measures;430
(g) Improvements to the health of the Māngere Inlet and consequently
the Manukau Harbour because of improvements to stormwater
treatment and the contamination containment bund.431
Land acquisition and property access
23.5 A number of parties raise site-specific issues that are more properly
addressed in the context of the PWA process.
23.6 The Public Works Act 1981 (PWA) sets out the framework through which
the Crown may acquire land for public works. Under the PWA regime,
compensation is paid to landowners for the value of any property acquired
(and in relation to various other matters) at market rates. The Crown is
required to purchase and provide compensation for any land required for
the Project in accordance with the PWA.432
23.7 As outlined in the evidence of Mr Harrington, when a site will be fully or
partially acquired, there will be compensation for the acquisition through the
PWA process. The compensation takes into account the value of the
property, the value of any business (if the business is to be purchased) and
the costs of any reconfiguration (in a partial take). As part of this process
the Transport Agency takes all reasonable measures to minimise both the
extent of land required and the impact on residual land. If a partial take
renders use of the remainder of the land over constrained, the full site may
also be acquired.
23.8 The construction of the EWL requires re-configuration of a number of
properties including to provide for access. In his evidence, Mr Harrington
describes a number of these properties. The Transport Agency will
428 For example: NZ Automobile Association, National Road Carriers (Inc), Auckland Business Forum 429 For example: National Road Carriers (Inc) 430 For example: NZ Automobile Association 431 For example: Ngāi Tai ki Tāmaki, Makaurau Marae Māori Trust, Te Kawerau a Maki, Ngāti Tamaoho 432 Harrington EIC, paragraph 5.3.
BF\57040744\1 Page 108
continue to work with affected landowners to finalise details of the
reinstated or reconfigured property accesses.
23.9 The Transport Agency's preferred method for land acquisition for its
projects is to reach negotiated agreements with affected landowners,
without the need to resort to the compulsory acquisition powers in the PWA.
Those provisions are only used if efforts to negotiate a land purchase fail to
reach an agreement. Where the circumstances allow, the Transport
Agency is open to accommodating landowners' wishes in terms of land
exchanges or other solutions to reach agreement on appropriate mitigation
(including site reconfigurations), reinstatement and/or compensation.433
Public Works Act 1981 and RMA interface
23.10 Case law suggests that where an overall judgment of all relevant RMA
factors favours a public works designation and as a result the land is likely
to be acquired under the PWA, any adverse effects of the work on those
landowners may be considered adequately, if not wholly, addressed by the
provision of PWA compensation or negotiated financial compensation. This
particularly affects full takes but also partial takes when compensation for
injurious affection is available.
23.11 In Central Plains Water Trust,434 the Hearing Panel decided that any
adverse economic effects the proposed irrigation work would have on
landowners affected by the designation would be adequately addressed by
the compensation package offered by the requiring authority, or failing that
by compensation under the PWA. In Villages of New Zealand (Mt
Wellington) Ltd,435 the Environment Court confirmed a Notice of
Requirement to designate land for development as a public park, where the
landowners raised the argument that the designation would have adverse
social and economic effects by preventing them from developing the land
as a retirement home. The Environment Court at [100] stated:
We do not overlook the impact on the social and economic wellbeing of the consent holder in making this finding but accept that such effects are amenable to compensation through the land purchase process.
433 Harrington EIC, paragraph 1.4. 434 Central Plains Water Trust Joint Decision and Recommendation of Independent Commissioners, 28 May 2010 at pages 11-12, Part 3. 435 Villages of New Zealand (Mt Wellington) Ltd v Auckland City Council EnvC Auckland A023/09, 20 March 2009.
BF\57040744\1 Page 109
23.12 Effects may include economic effects, such as business disruption
effects.436 It is submitted that those economic and business effects are
mitigated by compensation for any land take and other payments to
address the impact on land under the PWA. There may be collateral social
impacts for the community which should be considered under the RMA and
these have been addressed (see the evidence of Ms Linzey, Mr Osborne,
Mr Murray and Mr Wu and others in this regard).
23.13 Here, however, the Project primarily affects businesses. While the impacts
on businesses are real and acknowledged, these corporate entities own
and use their site primarily for economic gain. Therefore, the impact of any
land take is in respect of that commercial use or potential, and can be more
readily addressed through PWA compensation.
23.14 To that extent, the Board does not need to consider the business impacts of
land takes or disruptions to business operations because these economic
losses will be compensated for under the principle of full compensation
expressed within the PWA.
23.15 From a broader economic perspective, development of roading
infrastructure will generally result in improvements to the value of the land
remaining because of its proximity to the new roading infrastructure. This is
particularly the case for industrial land, which does not rely on high amenity
values, but generates value from proximity to efficient transport links.
Increases in the site's potential will generally be manifested in increased
property values. In this instance Mr Osbourne, in his rebuttal evidence for
the Transport Agency, anticipates that in general industrial land and access
to the EWL will, over a short space of time, be more valuable in the market
reflecting the relevant market's' assessment of the effects of the Project.
Auckland Council
23.16 Auckland Council is, along with Auckland Transport and mana whenua, a
project partner with the Transport Agency. The East West Link delivers on
the Auckland Plan, the foundation spatial planning document for the
allocation and management of resources, including the Unitary Plan and
436 There is uncertainty about the extent to which purely economic losses/loss of profits can be considered an effect under the RMA, as opposed to more general business disruption or economic impacts that may arise as a result of tangible physical effects on the environment. The Environment Court in Westfield New Zealand Ltd v Upper Hutt City Council EnvC Wellington W44/01, 23 May 2001 at [91] noted that the emphasis of the RMA is on enabling or providing the "environment" in which people can provide for their wellbeing, and that "the question of economic wellbeing does not mean protecting private business interests".
BF\57040744\1 Page 110
that plan's recognition of the significance of business land within the
Auckland region (and this business land in particular).
23.17 Auckland Council's participation in the Project to date has been extensive.
It has played a key role in formulating the proposal as filed, beginning with
the strategic inception of the Project through the Auckland Plan and then
throughout development of the business case. Detailed engagement has
continued post-lodgement, and while this dialogue has been very
constructive, there remain some issues on which the parties' respective
experts differ.
23.18 The Council has filed extensive expert evidence that is largely supportive of
the Project, while noting areas of concern on particular design aspects or
potential effects of the Project. In some instances, these concerns appear
to derive from Panuku's aspirations in relation to the future redevelopment
of the Onehunga Wharf area.
23.19 The proposal involves the development and then ultimate handover and
management of certain assets, including local roads, stormwater treatment
and leachate collection facilities, open space amenity areas, paths and
boardwalks for long-term management by Council. The Transport Agency
and the Council agree that this is appropriate, since the local roads will form
part of the local road network connecting into the East West Link and the
stormwater facilities will principally treat existing stormwater from the
general Onehunga/Penrose catchment, in addition to the minimal additional
stormwater load from the EWL. The Transport Agency and Council have
been developing a MoU to address the handover of these assets in the
event that the designation is confirmed and consent is granted, and expect
that agreement to be signed shortly. It also addresses performance
standards for construction of the stormwater treatment and leachate
collection system works in closed landfills, works in parks, and protocols for
use of land created where, if this is confirmed for open space/reserve use.
23.20 Discussions with Council officers and experts have continued throughout
the process of evidence exchange and conferencing. As a result, many of
the issues raised in evidence have now been resolved, either by design
clarification or refinements or by the inclusion or amendment of the
proposed conditions. In light of rebuttal evidence exchanged last week,
some further discussions are progressing, particularly with respect to
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conditions, and we expect that will continue through the course of the
hearing.
Outstanding issues
23.21 At this point, the Transport Agency understands that only a handful of
issues remain unresolved from the Council's perspective:
(a) The appropriate length of the land bridge at the Neilson Street
interchange, which spans over EWL and connects to Onehunga
Wharf (as discussed in Part 2 of these submissions);
(b) The treatment of the existing SH20 pedestrian underpass is still
under discussion. There is a recognition that some parties would
prefer to "splay" the opening to that underpass but this is limited by
engineering and structural constraints. The Transport Agency has
received the preliminary assessment from the Council's structural
engineer but considers there are limited practicable options for this
proposal;
(c) The size and extent of reclamation has been the subject of some
discussion and was discussed earlier in Part 2 of these submissions.
The Council appears to recognise the complexity involved in a
design which delivers the integrated outcomes sought for this
reclamation and also supports that multifunctional purpose.
However, there is also a general request in the Council's evidence
that the size of the reclamation be minimised wherever possible and
that any reduction would be supported.437 The Transport Agency
agrees in principle with this aspiration, but as previously explained,
considers that the proposed design provides for that integrated use
within the minimum footprint practicable. It does acknowledge that
there is scope for further refinement during detailed design and this
is reflected in amended conditions submitted with Ms Hopkins'
rebuttal evidence;
(d) Council experts are opposed to the dredging proposal, based on its
perception of the level of effects that this will create. This issue has
been canvassed previously in Part 2 of the submissions;
437 Coombes EIC, paragraph 3.3(c).
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(e) A few issues remain with respect to construction noise and vibration
controls. The Council and Transport Agency experts have been in
further discussion on these issues and there is an expectation that
these will be resolved through amended conditions;
(f) With respect to Waikaraka Park and Cemetery, it appears that most
of the amenity and heritage issues have been resolved through
conferencing and discussion and are now reflected in conditions, as
discussed earlier. The location of the pedestrian overbridge is
generally supported at Alfred Street and the remaining issue from an
urban design perspective is the desirability of a full multimodal
connection where Alfred Street links to East West Link. For
transport reasons the Transport Agency does not support this
connection but its design experts have confirmed that it is not
precluded from being developed in the future;
(g) The Council is still seeking the provision of two sports fields at
Gloucester Park North because it claims its planned sport field
development at Waikaraka Park South will be delayed by EWL. The
Transport Agency recognises the Council's development plans for
this area and has specifically sought to accommodate and where
practicable facilitate these. The Transport Agency has already
agreed to leave the construction yard in a state suitable for the
Council's three fields when it finishes with the site, at its expense. It
is also building the carpark the Council has requested for Waikaraka
Park. These measures are, from an RMA perspective, considered
appropriate to recognise the impact on the Council's development
plans (recognising that the capital investment has been deferred, not
lost). Given the uncertainty around the Council's plans for
Waikaraka Park, the request for sports field development at
Gloucester Park is, with respect, opportunistic;
(h) There is a high level of agreement in relation to the overall water
quality benefits that the proposed design of the foreshore wetland
system will deliver. The only outstanding issues with that system
relate to design refinements, commissioning and maintenance
requirements. The Transport Agency considers that these matters
are best addressed through detailed design and in particular, as part
of the asset transfer arrangements currently being documented in
BF\57040744\1 Page 113
the MoU, the details of which are largely finalised. We understand
that the Council agrees with this view;
(i) The Council's urban design expert Mr McIndoe supports the
undergrounding of the Māngere-Roskill A 110kV transmission line in
the vicinity of the Neilson Street interchange. This desire also
appears to reflect a long held aspiration of the community and the
local boards for undergrounding transmission lines in the area. The
Council has acknowledged the practical difficulties of addressing
that particular issue in the context of these applications, particularly
given that the assets are not held nor controlled by the Transport
Agency. Further, the Transport Agency does not consider that this
measure is either necessary or warranted by the effects of this
Project and in particular, has a tenuous connection to the effects for
which it has been proposed ie the legibility of Te Hōpua in the wider
landscape;
(j) In terms of ecology, there is a high degree of alignment between the
Council and Transport Agency ecologists on the level of effects, the
proposed mitigation and offset package and methodology. The only
outstanding issue appears to be in relation to terrestrial ecology and
the requirement for more planting in and around the Manukau
Harbour. The Transport Agency and Council experts are continuing
their discussions on this issue. Further refinement of the ecological
conditions may also be explored in order to provide further certainty
on outcomes.
23.22 Overall, the Transport Agency is confident that the technical issues
associated with the physical effects of concern to the Council can be
resolved, principally through conditions, design refinements during detailed
design and implementation of the MoU.
23.23 The more difficult issues to resolve are those involving connections
between the Port/Wharf and Onehunga township and other connections
between Onehunga township and the coast. The Council in general terms
is acting as an advocate for the community in this regard, and this is
complicated by its urban development entity Panuku having a mandate and
various aspirations to redevelop and transform the Onehunga area without
the necessary land ownership or funding to do so at this point.
BF\57040744\1 Page 114
23.24 This dynamic has led to some difficulties for both the Transport Agency and
the Council (Panuku) in drawing the line between appropriate design and
mitigation of the East West Link effects on the one hand, and Panuku's
urban development responsibilities in relation to the Wharf area on the
other. Currently the Wharf is an industrial area closed off from the public
and not available for public use. Panuku and the community aspire to
change that situation, and while the zoning of the Wharf confirms its
industrial maritime use, there was recognition through the Auckland Unitary
Plan process that this area could be subject to a plan change.
23.25 The potential to develop the Port and Wharf area in the manner envisaged
by Panuku is constrained by the current road layouts. Currently the Wharf
produces low levels of traffic and its entrance and exit is off Onehunga
Harbour Road which currently acts as both as an on and off ramp for SH20.
Because this link performs this motorway function it is very busy and could
not, without the East West Link or reconfiguration of the Neilson Street
interchange in some shape or form, support the development of the wharf
beyond its current level of intensity.
23.26 The Wharf is not currently owned by Panuku. It is owned by the Port
Company. The Transport Agency is negotiating to purchase it and on sell
the parts it does not require to Panuku. While there are many different
views as to what development might look like on the Wharf, the plans are
not advanced, with Panuku only formulating its high-level strategy into
document form in March of this year, after the EWL applications were filed.
It is fair to say that Panuku has been racing to catch up with the process
and also that the Transport Agency has experienced some frustration in
being asked to provide for (or not to preclude) a range of different potential
futures for the Wharf rather than one well-advanced concept.
23.27 While the Transport Agency is willing to continue to work with the
Council/Panuku and others on the future development of the Wharf area, it
is important to acknowledge that many of the aspirations are not in keeping
with its current zoning and cannot be considered as part of the existing
environment. Effects of the proposal on that development cannot, as a
matter of law, be considered. Notwithstanding this legal position, the
Transport Agency's has worked with Panuku where possible to try to ensure
the EWL can accommodate its aspirations.
BF\57040744\1 Page 115
Trench and lid – Neilson Street
23.28 Central to this discussion is the trench and the length of the lid on top of it.
While the Council (ie Panuku) is still seeking further provision for access to
the Wharf through an increase in the size of the lid (from 70m to at least
110m), the Transport Agency asks the Board to place this request into
context.
23.29 Initial designs of the EWL as it sweeps under the Manukau Harbour
Crossing did not include trenching and simply involved bridging of
Onehunga Harbour Road over the EWL. This was appropriate because
Onehunga Harbour Road only needed to function to provide for low levels
of local traffic to Orpheus Drive and to the Wharf for its current use.
Although some of Council's witnesses criticise the trench the reality is that it
was provided to address Council's aspirations to develop the Wharf and
comes at some considerable cost to the Transport Agency.
23.30 The lid was originally designed to be 25m in length. That distance was
considered reasonable by the Transport Agency in circumstances where
Panuku was not in a position to provide any clear direction as to what
connecting function the lid would have and what it would look like because
its plans for the Wharf were unformed. Although its plans still remain
unclear Panuku has pushed for a longer lid. The Transport Agency has
extended it to 70m to address this desire and assist in contributing to the
potential future land use pattern in this area.
23.31 An extension of the lid to at least 110m is now sought. The further
investigations undertaken by the Transport Agency indicate the lid can be
extended up to 90m in length, however this additional 20m would come at a
considerable cost (rough estimates indicate between $6 - $7m).438 Beyond
90m, the structure (trench plus lid) would become a tunnel and issues arise
in terms of fire safety and ventilation that require additional equipment to be
installed and consequently additional depth for the trench to accommodate
those requirements. This depth in turn would create gradient issues, with
the trench having to be deeper over a longer distance. The gradient would
be too steep for trucks having to rise out of the tunnel heading north to get
up to a level when they can travel over SH20.
438 Nancekivell rebuttal, paragraph 6.19.
BF\57040744\1 Page 116
23.32 In order to realise the full development capacity of the Wharf considerable
investment would be required by Panuku to build an adequate access to it.
The EWL will provide the necessary improvements to allow for full
development of the Wharf. Mr Marler, of Panuku acknowledges this in the
Council evidence.439 Within the technical constraints identified in respect of
the trench and land bridge, the Transport Agency is not adverse to
increasing the length of the lid. However, it considers this is a matter best
addressed through future processes once the development aspirations of
Panuku are more clearly understood. Further, the Transport Agency
considers that it would be appropriate to consider who would benefit from
any design changes beyond the current 70m land bridge (and where the
costs for such outcomes might lie).
Reclamation
23.33 As signalled in Part 2 of these submissions, the Council's experts, much like
the Transport Agency's experts, have different perspectives, priorities and
concerns about the reclamation area, but have not had the experience of
participating in the integrated design process that has been undertaken by
the Transport Agency's experts in reaching the proposed size of
reclamation. While clearly recognising the stormwater opportunities and
expressing support for the landscape proposals, the Council's ecologists
and particularly its coastal planner Ms Coombes are anxious to ensure that
the reclamation responds to policy requirements to be minimised to the
greatest extent practicable.
23.34 As a result of caucusing the Council's position on reclamation has softened
somewhat. Through the evidence exchange and expert conferencing
process, the Council team has seen first-hand the effort that has gone into
balancing the various transport, containment and embankment, coastal
restoration, public access, stormwater treatment and leachate issues that
the Transport Agency team has integrated into a balanced and efficient
proposal. The Council experts now have a better understanding of the
compromises that have been required in terms of the reclamation size and
the fact that the reclamation represents a thoughtful intersection of those
various concerns: landscape, ecology, public access, stormwater, leachate,
planning.
439 Marler EIC, paragraph 9.7.
BF\57040744\1 Page 117
23.35 The Transport Agency understands that while the Council wants to see the
size of the reclamation reduced wherever possible, it equally does not want
to see the benefits from its various functions (landscape enhancement,
public access and water treatment) compromised.
Dredging
23.36 The Council's experts consider that the impact of dredging, primarily from
the disturbance of seabed and the contaminants transported as a result, is
a more significant concern than do the Transport Agency's experts. Both
parties acknowledge that there are other construction methods available.440
The Transport Agency still considers that the effects of dredging are similar,
regardless of which construction methodology is used. This is an area of
difference between the parties.
23.37 It should also be noted that there is some support in the community,
specifically some TOES members, for use of the existing dredging consents
to dredge in and around the wharf area where there is an acknowledged
surplus of sediment and a desire by the community to have that removed to
create a more useable wharf. This opportunity would remain whether or not
dredging within the Inlet were allowed by the consent applications before
the Board.
Transmission line undergrounding
23.38 Undergrounding has been a longstanding issue for the Onehunga
community since well before the EWL. The community has long-held
aspirations to remove what it considers unsightly overhead lines.
23.39 While the Transport Agency accepts undergrounding may be desirable, it is
not within its power to do so. More importantly, the Transport Agency it
considers that the EWL Project does not give rise to effects, either of the
kind or extent, which would in any way justify the Board imposing on the
Transport Agency any obligation to advance undergrounding or contribute
financially to that process. The Council seems to accept the tenuous
connection between the EWL Project and undergrounding because its
expert witnesses describe it as "compensation". Notwithstanding this, it is
still being advanced by certain Council witnesses on the basis it would be a
beneficial urban design outcome.
440 These are outlined in Priestley rebuttal as discussed above under Dredging.
BF\57040744\1 Page 118
23.40 In the Transport Agency's view, a requirement to underground would result
in burdening an already complex project with further costs unrelated to its
effects. More broadly, it would involve the spending of public money on an
initiative, which has not been bench-marked against other "compensation"
measures, or indeed other public spending priorities in this area. No
Auckland-wide view has assessed, not least by the asset owner
Transpower, whether the undergrounding of this particular line in this
location would be the best use of public resources.
23.41 Notwithstanding these remaining issues,, the Transport Agency has
appreciated the Council's partnership through the Project development and
pre-lodgement phase. Collaborative, good faith discussions with the
Council stay after lodgement have assisted to resolve a range of technical
issues, regardless of the recommendations made by this Board on the
Council's issues remaining unresolved, the Transport Agency is confident
that this strong and constructive working relationship will continue in the
future.
Auckland Transport
23.42 Auckland Transport is an investment and delivery partner for the wider East
West Connections.441 The Transport Agency has engaged with Auckland
Transport from 2012, beginning with the East West Connections business
case.442 Along with Mana Whenua and Auckland Council, Auckland
Transport is a Project partner for East West Link.443
23.43 Auckland Transport supports the Project. It agrees that the Project aligns
with regional and national transport policy, responding to an identified need
to improve freight and general traffic efficiency, public transport, and
walking and cycling options in the Project areas.444 Furthermore, Auckland
Transport considers that the Project delivers on its objectives.445
23.44 A handful of issues were raised by Auckland Transport in its evidence,
mostly in relation to conditions. Since evidence exchange the Transport
Agency has been working constructively with Auckland Transport to resolve
these matters through revised conditions or alternative asset owner
441 van Schalkwyk EIC, paragraph 2. 442 The initial phases of the Project were defined and developed with Auckland Transport, see AEE, section 3: Project Development. 443 Auckland Transport refers to itself as a key stakeholder, at van Schalkwyk EIC, paragraph 20. 444 van Schalkwyk EIC, paragraph 1. 445 Winter rebuttal, paragraph 9.
BF\57040744\1 Page 119
arrangements (which are captured in a Consenting Phase Agreement).446
The Transport Agency understands that all issues have now been resolved.
Some further refinement to condition wording may still be required.
23.45 Auckland Transport will have an ongoing involvement in the Project, as it
will inherit a number of new local road assets being delivered by the
Transport Agency.447
Aotea Sea Scouts
23.46 The Aotea Sea Scouts (Sea Scouts) run a scouts programme from their
building (called the Ship) on Orpheus Drive, and are concerned that the
Project will have adverse effects on their site which will prevent them from
using it (and the adjacent reserve) for their scouting activities
23.47 More specifically, the Sea Scouts are concerned that the Project will result
in the loss of the adjoining berm area used for parking, the loss of the
pedestrian connection to Gloucester Park South, and potential loss of the
hardstand area for outdoor educational purposes/rigging due to noise
effects. The Sea Scouts consider that a loss of these areas (including the
loss of access to Gloucester Park South) will render the site and the Ship
unsuitable for scouting activities.448
23.48 The Sea Scouts want more certainty about the construction works occurring
around the Ship.449 To address these concerns, the Sea Scouts sought a
new designation condition that requires the Transport Agency to relocate
the Sea Scouts permanently, prior to the construction of the EWL
commencing.450
23.49 The parties have been in discussion for some time, and the Transport
Agency is committed to ensuring the Sea Scouts are appropriately provided
for. These issues were discussed during expert conferencing for the
Neilson Street Area. Experts for the Transport Agency (Ms Linzey) and Sea
Scouts (Mr Hay) agreed that the best outcome for the Sea Scouts is
permanently shifting the activity to an appropriate site. Efforts continue to
reach an agreement on this betterment opportunity.
446 van Schalkwyk EIC, paragraph 20. 447 van Schalkwyk EIC, paragraph 2. 448 Hay EIC, paragraph 74. 449 Lasham EIC, paragraph 2.10. 450 Hay EIC, paragraph 145.
BF\57040744\1 Page 120
23.50 The experts also agreed that if the activity were to remain on the current
site, issues of parking, use of curtilage and accessibility to open space
already constrained would need to be mitigated.451 In this regard, the
experts (excluding Mr Hay, who was not present for this discussion and did
not agree with it) agreed that there are opportunities for parking within close
proximity to this area, integrated with landscaping and a coastal walkway to
support future use of the Ship.452
23.51 If agreement cannot be reached, the Transport Agency remains committed
to appropriate temporary relocation and has proposed suitable conditions of
the designation confirm that. It is also committed to providing a suitable
long-term home.
Onehunga Mall Cul-de-sac residents
23.52 A number of owners of residential properties on Onehunga Mall raised
concerns in their submissions about adverse effects from construction and
how this will impact on their day-to-day lives. is a resident of
35 Onehunga Mall and lodged a submission on behalf of Onehunga Mall
Cul-de-sac Residents. The Transport Agency understands that Ms Rich is
not an official representative of the group, but is raising concerns about
aspects of the Project on behalf of herself and other residents.
23.53 During the facilitated meeting on 12 June about the Onehunga Mall Cul-de-
sac residents, Ms Rich attended, as did two other residents of Onehunga
Mall (Frank Irvine and Metua Pekepo). Ms Rich raised concerns about
operational noise, at the Onehunga end of the Project, post-construction.
Other submitters also raise concerns about noise operational noise
impacts.
23.54 In terms of road operation noise generally, Ms Wilkening's evidence notes
that where the Project is alongside SH1 the existing noise environment is
already significantly affected by noise from existing high traffic volumes.
SH20, while less trafficked, is in close proximity to sensitive receivers.
However, those receivers also currently experience high traffic noise levels
from SH20. Locations away from the existing SH1 and SH20 experience
lower ambient noise levels (eg residential areas in Māngere Bridge),
451 Joint Witness Statement on Neilson Street Area, paragraphs 2.3 and 2.5. 452 Joint Witness Statement on Neilson Street Area, paragraph 2A.7.
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although other areas through which the alignment passes are
predominantly industrial in nature.453
23.55 The mitigation measures proposed include:
(a) Construction of noise walls along SH1 and a noise a barrier on the
SH20 bridge in the vicinity of Onehunga Mall cul-de-sac;454
(b) Use of low noise road surfaces;455 and
(c) A framework for mitigating effects for any buildings identified as
protected premises and facilities, which after structural mitigation is
applied to the State Highway, are still receiving noise above the
relevant noise criteria.456
23.56 In terms of overall operational noise effects, Ms Wilkening's evidence is that
the Project will have a positive effect on noise effects, and will result in
significant betterment for those dwellings along SH1 that are currently
affected by the most elevated noise levels.457 For the residents of the
Onehunga Mall Cul-de-sac, the proposed noise barrier on the SH20 bridge
would mitigate noise from the existing SH20, which will remain the main
noise source in the area, despite the implementation of the Project.458
EnviroWaste (Chemwaste)
23.57 The EnviroWaste site is located along the northern shore of the Māngere
Inlet. The southern part of the site is affected by the designation, both in
terms of a temporary take for construction and a permanent take to
accommodate the roading and services corridor.
23.58 In its evidence EnviroWaste contends that the extent of the area between
the northern edge of the carriageway and its site can be reduced by
removing the cut-off drain, thereby reducing the land take from its site. The
cut-off drain, amongst other things, provides for the leachate collection
system. This system replaces an existing leachate collection facility located
in the vicinity of the existing Waikaraka cycleway.
453 Wilkening EIC (Traffic), paragraphs 8.1 – 8.3. 454 Wilkening EIC (Traffic), paragraphs 9.9 – 9.17 and proposed designation condition ON.3, and Wilkening Rebuttal, paragraph 4.60. 455 Proposed designation condition ON.3 at Hopkins rebuttal, annexure B. 456 Proposed designation conditions ON.9 – ON.14 at Hopkins rebuttal, annexure B. 457 Wilkening EIC (Traffic), paragraphs 12.4 and 12.8. 458 Wilkening EIC (Traffic), paragraphs 9.9 – 9.17 and proposed designation condition ON.3, and Wilkening rebuttal (Traffic), paragraph 4.60.
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23.59 EnviroWaste's position is that leachate collection is not required because its
site, as opposed to Pike's Point East and West landfills, is located on an
area of "Uncontrolled Fill"459 which does not produce leachate at the same
rate as municipal solid waste. Instead, it suggests simply a pipe between
two leachate collection facilities at the foot of Pikes Point East and West.
Further, EnviroWaste suggests this land take is not reasonably necessary
for the purposes of the works because it relates to a leachate drain and is
the Council's responsibility.
23.60 The Transport Agency does not accept this position. The new leachate
drainage system will vest in Council but the corridor within which it is
located will remain part of the road corridor, and will be owned by the
Transport Agency. While the drain in question will collect leachate, the land
in which it is to be located also fulfils other functions. Mr Nancekivell
explains in his evidence that the other factors include; the need for a
services corridor, the need to protect the structural integrity of the road and
the need to provide space for a berm for a path and landscaping.460
23.61 At conferencing all the experts accepted that the alignment of the leachate
drain is not the sole factor in determining the designation boundary.461 This
appears to answer the matter. The Transport Agency's view is that its
development is affecting an existing drainage facility, so to replace that
facility is an implicit part of the works and therefore the designation is
reasonably necessary to allow that work to be undertaken.462 However, to
the extent there are concerns about being made for leachate collection,
Mr Nancekivell's evidence confirms that this area provides for other aspects
of the roading works.
23.62 In consultation with EnviroWaste, the Transport Agency has undertaken
further design to reduce the land take so that no buildings are lost on the
EnviroWaste site. Further, it identifies that in detailed design, once the
specific ground conditions are known, a less conservative construction
technique than is currently contemplated for the road may be able to be
implemented, thereby further reducing intrusion into the EnviroWaste site.
459 An Uncontrolled Fill site is a site that has been filled primarily with Cleanfill Material but the fill operations were not controlled to prevent the deposition of Municipal Solid Waste or other waste materials (building debris, rubble, industrial waste and scrap). 460 Nancekivell rebuttal, paragraph 7.11. 461 Joint Witness Statement on Closed Landfills, paragraph 3.3(b). 462 The orthodox threshold test of reasonably necessary is that "the meaning of the word necessary falls between expedient or desirable on the one hand, and essential on the other and the epithet reasonably qualifies it to allow some tolerance", Re Queenstown Airport Corporation Limited [2012] NZEnvC 206 at [51], approved by the High Court in Queenstown Airport Corporation Ltd v Queenstown Lakes District Council [2013] NZHC 2347.
BF\57040744\1 Page 123
This was accepted at caucusing where the experts agreed that the current
concept design necessarily has to be conservative, but that there will be
opportunities at detailed design and construction phase to refine the
footprint.
Ports of Auckland Limited
23.63 The Ports of Auckland (Port Company) owns the Port of Onehunga and
has land holdings at Pikes Point, which are leased to third parties for
industrial activities, including the Auckland Heliport and Car Distribution
Group. The Port Company's evidence acknowledges that it is currently
negotiating with the Transport Agency regarding its acquisition of both sites.
The Port Company is generally supportive of the Project, but does raise
some concerns about several matters:
(a) Ensuring that full access is maintained to the Onehunga Wharf both
during and post-construction;
(b) The purpose of the Port Link Road which connects with its
competitor's facility, Port of Tauranga's inland port;
(c) Managing effects on the Pikes Point site's existing clay cap;
(d) Impacts on the current stormwater discharge systems at Pikes Point;
(e) Certainty about the viaduct design across the Pikes Point site.
23.64 The Port Company has sought amendments to the proposed conditions to
provide a more extensive consultation process as part of the management
plans that relate to its land holdings. The Transport Agency's experts
confirmed that the conditions proposed require consultation with relevant
landowners during preparation of site-specific management plans.463 The
Port Company also sought a condition enabling full turns for all vehicles
from Onehunga Harbour Road into the Port of Onehunga. The Transport
Agency has confirmed the inclusion of a general condition that requires
provision of 24 hour access to the Port unless alternative arrangements are
agreed.464 These conditions should also address concerns raised by
Sanford.
463 Joint Witness Statement for Construction Management, paragraphs 4.1 and 4.4. 464 Joint Witness Statement for Construction Management, paragraphs 4.2 and 4.5.
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23.65 The Port Company was also concerned about the effect of construction
activities on contaminated land and associated stormwater discharges from
Pikes Point. The experts acknowledged that design work and a
coordinated response are required between the Transport Agency and
Auckland Council to address the concerns regarding contamination (noting
that the Council is the consent holder for closed landfills) but that these
concerns can be addressed through the conditions.465
23.66 Since this evidence was filed these discussions have progressed materially.
While not finally approved by the respective Boards of the organisations
recommendations are being advanced for approval of terms of sale.
Auckland Helicopters
23.67 Auckland Helicopter Limited Partnership (Advanced Flight) (AHLP) has a
long-term ground lease over land at Pikes Point East (39-59 Miami Parade,
Onehunga) that is owned by the Port Company.
23.68 AHLP is opposed to the proposal because the alignment separates its
existing heliport facility from the coast. Civil Aviation regulations restrict
certain helicopters (single engine) from landing and take-off flight paths
over roadways such as EWL. To that extent, the heliport would not be able
to be used for the more common single engine helicopters. AHLP contend
that, with this restriction, the EWL would adversely affect its operation to the
extent that it would have to close. AHLP also contend that, because of the
nature of its operation and the need to be both proximate to the urban area
and at the same time separated from more populated land uses, there are
no suitable relocation sites.
23.69 The Transport Agency has been working with AHLP (at its invitation) since
late 2015 to provide an appropriate solution to this situation. Various
options were considered, however the optimal alignment for EWL was
determined be along the coast. The Transport Agency has recognised the
issue that this causes for the viability of the heliport operation and the
particular constraints of this enterprise in terms of alternative locations
because of the CAA regulations.
23.70 The southeastern corner of the Port Company's land at Pikes Point East
has been identified by the Transport Agency as a potential option for
465 Joint Witness Statement for Construction Management, paragraphs 4.3 and 4.6.
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relocation. This location is currently occupied by another ground lessee of
the Port Company, being Car Distribution Group Limited (CDG). Any
relocation of the heliport to this location will disturb CDG’s existing lease
and its current operations on the land and will require their agreement. If
and when the Transport Agency is successful in acquiring the fee simple
interest in the land from the Port Company and the Crown becomes the
owner, this may allow an exchange of land interests to be offered in
compensation to both AHLP and CDG. This would be achieved using the
appropriate provisions of the PWA, although it would require the agreement
of both AHLP and CDG. Obviously, it will also have to wait upon the
successful acquisition of the Port Company land by the Crown. The
complexities of successfully orchestrating this solution are set out in the
evidence of Mr Harrington.466
23.71 The Transport Agency has invested as considerable amount of time and
resources in advancing and achieving this outcome. Considerable progress
has been made towards relocation to date:
(a) Pursuing the purchase of the Port Company land at considerable
cost. As stated above in relation to the Port Company, that process
is nearly complete;
(b) Discussions with CDG about the reconfiguration of the site, and
exchange of land areas between CDG and AHLP. Confidence in
the workability of a relocation has increased as a result of a
successful progression of these discussions, with CDG submitting in
favour of the proposal;
(c) Confirming that there are no historic legal impediments to this
process;
(d) Provisional agreement between the Transport Agency and AHLP as
to how a new site will be configured. AHLP has agreed that the site
identified is appropriate and an indicative pricing process for the new
facility has been undertaken.
23.72 While the Transport Agency is confident that relocation can be achieved, it
cannot however guarantee that outcome. In these circumstances AHLP is
either seeking that the Project be declined or that its relocation be made a
466 Harrington EIC, paragraphs 7.3 – 7.6; Harrington rebuttal, paragraphs 4.4 – 4.5.
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condition precedent to the alignment proceeding in front of its site, in effect
placing the relocation of the heliport business ahead of the Project as a
whole. As shown by efforts to address AHLP's concerns, the Transport
Agency is committed to minimising the disruption of this project on AHLP.
However, AHLP is a business like others, and as an economic entity can
seek to have those effects addressed through the PWA via compensation.
This would be either compensation for the land interest taken and business
disruption, or, if relocation were not possible, for the business itself.
23.73 Discussions are continuing with AHLP and CDG, in parallel to those with
the Port Company, to advance the relocation opportunity. If it does
eventuate, it would be subsequent to any decision of the Board in this
proceeding. It is hoped further material steps towards relocation will be
made before the hearing is complete to allow the AHLP to moderate its
position. For completeness it is worth noting that any such exchange that is
agreed between the parties will require LINZ clearance to confirm that it
meets the appropriate legislative requirements under the PWA and the
LINZ Standards and Guidelines, and that the agreed compensation reflects
current market value for the respective land interests.
Mercury's Southdown Site
23.74 Mercury has raised concerns about the potential impacts that EWL will have
on its site at Southdown. Its evidence focuses particularly on the effects of
the EWL on the ability to restart and operate the existing gas-fired co-
generation power station on the site that, until it was decommissioned in
late 2015, had been in use since it was commissioned in 1998.
23.75 The Southdown site is in two lots. The alignment traverses the southern
part of the southern lot containing the mothballed gas fired plant. While the
designation covers approximately half the southern site, the alignment will
occupy significantly less than that when constructed. The alignment will be
on structure and will pass over the site.
23.76 The Southdown plant was comprised of three gas fired turbines with a
combined generation capacity of 140MW and a steam turbine generating a
further 25MW. This was decommissioned in late 2014 when Mighty River
Power (Mercury's predecessor) reviewed the future of the entire site. The
gas-fired generation utilised the First Gas high-pressure gas line (after
conversion to a lower pressure) to fire three repurposed jet engines to run
BF\57040744\1 Page 127
generators. The site also contains a Transpower substation and a smaller
Transpower substation, which is exclusively used for KiwiRail's
electrification (the Southdown Rail Supply Substation). First Gas and
Transpower are lessees of parts of the Mercury site.
23.77 In March 2015, Mighty River Power (MRP) confirmed that it would close its
gas-fired Southdown power station by December 2015. At that time MRP's
chief executive Fraser Whineray made public statements that the decision
reflected the high running costs of the plant compared with the large hydro
and geothermal power stations. He said that the station had played a very
small part in the firm's portfolio over the preceding two years, meeting less
than 1% of New Zealand's total energy demand. At that point the company
said that no decision had been made in relation to the plant's future but that
it was expected to dismantle the plant and offer it for sale overseas.467
23.78 Subsequent to the announcement of closure, but prior to the actual closure,
Contact Energy unexpectedly closed its 400MW Ōtahuhu B plant. The
removal of this competing thermal capacity did not alter MRP's Southdown
decision in terms of closure. MRP (which rebranded as Mercury around the
same time) subsequently closed the plant and sold the plant's steam fired
generator and three gas turbines. None of the 17 staff that had been
employed at Southdown remained on site.
23.79 Mercury's evidence also refers to the gas risk, which arises from the
location of First Gas relief valve infrastructure on the Mercury site. This
equipment is used by First Gas to convert its high-pressure gas into a lower
pressure gas supply to supply the Southdown co-generation plant. Mercury
expresses concern that this release valve could discharge a gas plume in
the vicinity of the road which could then ignite.
23.80 Since receiving Mercury's evidence the Transport Agency has been
informed by First Gas that it has closed and dismantled its pressure
variation facilities, including the pressure release valve referred to in
Mercury's evidence. First Gas has also informed the Transport Agency that
it would take somewhere between 12-18 months to redesign and
recommission that equipment should Mercury want to re-establish gas
generation on site.
467 Mighty River Power "Renewables growth behind closure of Southdown thermal station" (press release, 24 March 2015).
BF\57040744\1 Page 128
23.81 The only active operation on the site is a small research and development
centre for solar battery storage and other energy technologies. This was
established in early 2016 and is located on the northern of the two lots. This
is intended to be used as a test site for solar battery technology.
23.82 Mercury have also pursued other uses for the closed gas fired plant. In
response to a Transpower request for industry reviews on voltage support
Mercury submitted in 2016 a proposal to use the now idle generators for a
process called synchronous condensing. This involves the connection of
the generators to the network as opposed to an active turbine in order to
assist with voltage control. This activity does not give rise to the same risks
that gas-fired generation does. While very briefly mentioned in passing in
Mercury's evidence there is no suggestion that Mercury has actively
advanced this type of use of its site, notwithstanding that this is material to
the risk issues it has raised.
23.83 Mercury contends that the Transport Agency has not appropriately taken
into account the adverse effects of the proposed EWL alignment across the
southern portion of the site due to a mistaken assumption by the Transport
Agency that the power station will never restart. Somewhat dramatically,
Mercury is now seeking that the designation be declined outright, despite
having engaged in detailed discussions with the Project Team over an
extended period and advising, in January of this year, that the southern
alignment would be acceptable to it provided certain specific matters were
addressed in detailed design.468
23.84 The Transport Agency had assumed that it could work constructively with
Mercury to evaluate its concerns and resolve them with design refinements
(including potential modifications on the Mercury site), appropriate
conditions and an MoU or agreement, as it has done with some other
network utility and infrastructure submitters. It has become apparent
relatively recently that this was an optimistic view.
23.85 The Transport Agency would have expected Mercury to have raised the
issues it is now raising earlier if they were genuine concerns. It would also
expect that Mercury would want to expedite evaluation of these risks in
respect of its past activities, but most importantly, its plans for the site going
forward.
468 Wickman rebuttal, annexure C.
BF\57040744\1 Page 129
23.86 Mercury's position is advanced in the name of national interest in ensuring
electricity supply, and invites the assumption that the interests of Mercury's
shareholders correspond with that national interest. That assumption is
questionable and that can most easily seen by the fact that Mercury itself
halted generation activity in 2015. If gas-fired electricity generation was so
key to the national interest it is difficult to understand the decision (widely
touted to the media as part of Mercury's commitment to renewable energy
sources) to close the plant down, reduce staff levels and sell the gas fired
turbines.
Outstanding issues
23.87 Mercury has raised a number of concerns.469
Dust
23.88 Mercury considers that dust and vibration from the construction of the EWL
could adversely affect sensitive high voltage electrical infrastructure at the
Southdown site, and constrain performance at the Solar Research and
Development Centre. Mercury is also concerned that the increase in NOx
emissions as a result of the EWL will adversely affect users of the new road
and shared pathway. It has suggested a number of amendments to the
designation conditions to mitigate these effects, including a requirement for
the Transport Agency to undertake ambient air monitoring, and specific
recognition of the sensitivity of the equipment at the site.470
23.89 Ms Needham has evaluated these concerns, and concluded they are
overstated and that no further conditions are required. Experts for Mercury
and the Transport Agency, also attended expert conferencing to address
the air quality issues raised in respect of the Project, and all experts agreed
that any minor dust effects of the Project would be localised, and would not
have any significant effect on Mercury site.471 The experts also agreed that
the construction air quality management plan, as proposed, is suitable and
appropriate for minimising potential adverse dust effects in general.472
23.90 However, the experts disagreed on the wording of some of the specific
designation conditions. Dr Graham considers that the Mercury site should
469 Flexman EIC, paragraphs 1-8. 470 Graham EIC, paragraph 6. 471 Joint Witness Statement for Air Quality, paragraph 3.3. 472 Joint Witness Statement for Air Quality, paragraph 4.2.
BF\57040744\1 Page 130
be specifically recognised in the designation conditions. Ms Needham
considers it unnecessary for the conditions to refer to specific sites as
sensitive sites will be identified and provided for within the air quality
management plan (an approach supported by the Council's expert).473
Dr Graham also sought reference to the need for an asbestos management
plan, but Ms Needham considers that this is adequately provided for in the
conditions as currently drafted.474 The experts also disagreed on whether
ambient air quality monitoring should be required as part of these
consents.475
Access
23.91 Mercury contends that it might require 24 hour access to the Southdown
site, including access for (and space to operate) heavy machinery. Mercury
suggested a number of amendments to the designation conditions to
address access effects, including new conditions that specifically address
the issue of access to the Southdown site.476 While the site is not operating
as a gas fired plant, the Transport Agency has agreed to minor
amendments to the conditions to ensure the maintenance of appropriate
access during construction (unless alternative arrangements are otherwise
agreed).
23.92 Suitable pedestrian access to and from the site will be provided in the final
design.477
23.93 Mercury have raised issues relating to access under Transpower's assets.
The Transport Agency's intent is to provide adequate clearances for access
for the specific vehicle requirements of the site.478 It has been working with
Transpower on these issues and has made constructive progress.
23.94 During construction it was agreed that where proposed works covered by a
Site Specific Traffic Management Plan affect property access, Mercury will
be consulted and measures to address identified issues will be included in
473 Joint Witness Statement for Air Quality, paragraph 5.4. 474 Joint Witness Statement for Air Quality, paragraph 6.3. Ms Needham considers that Asbestos management is adequately provided for when condition RC11 is read in conjunction with the conditions of the contaminated land management plan (CL1 and CL2). 475 Joint Witness Statement for Air Quality, paragraph 8.4. 476 Carlisle EIC, paragraphs 39 – 45. 477 Joint Witness Statement for Traffic and Transport (Mercury NZ Ltd Site), paragraphs 5. 478 Joint Witness Statement for Traffic and Transport (Mercury NZ Ltd Site), paragraphs 4.
BF\57040744\1 Page 131
this plan and the CTMP. This is outlined in proposed condition CT.4(f) and
CT.4(l).479
Risk
23.95 Mercury's submissions and evidence raise issues of safety and risk
exposure arising from its closed gas-fired plant. The Transport Agency
considers these risks are overstated, and are being used as a proxy to
protect the site for other commercial aspirations. It also considers that any
impacts on Mercury are on its commercial interests rather than the national
interest in ensuring security of electricity supply.
23.96 Mercury's submission expresses concern that locating the EWL and shared
cycle/pedestrian pathway above the Southdown site will give rise to
significant safety risks in the event that the gas-fired plant is re-started in
future. Those risks are expressed to be to public users of the highway and
shared path, as well as workers on site and to the structural integrity of the
viaduct structure in the event of an explosive incident on site involving
either gas release or catastrophic mechanical failure of power turbines. In
fact numerous different risks are identified but none are documented in any
detail. This is surprising given Mercury's statutory obligations under various
health, safety and hazardous materials regulations.
23.97 As set out in the rebuttal evidence of Mr Wickman, the Transport Agency
has consulted extensively with Mercury in relation to the alignment over a
long period.480 These discussions even went so far (in the early stages) as
to discuss the potential acquisition of the Southdown site by the Transport
Agency. They progressed into a proposal that the Transport Agency
dismantle of some Mercury redundant generation plant. As a result of that
consultation, Mercury indicated in correspondence in January of this year
that it was content with the proposed EWL alignment across the southern
portion of the site.481
23.98 In light of that correspondence, Mercury's aggressive position in its
submission and evidence, seeking that consents be declined, has come as
something of a surprise to the Transport Agency. Since evidence exchange
Mercury's reluctance to enter into meaningful discussions about how to
479 Joint Witness Statement for Traffic and Transport (Mercury NZ Ltd Site), paragraphs 6. 480 Wickman rebuttal, paragraphs 6.3–6.4. 481 Wickman rebuttal, annexure C.
BF\57040744\1 Page 132
evaluate its unquantified risk issues has also been both surprising and
disappointing. Both Mr Flexman (Mercury's Wholesale Markets Manager)
and Mercury's risk expert Mr Phillis stated in their evidence that a full safety
risk assessment should be undertaken to identify and evaluate all of the
potential risks that may arise from location of the project on the Southdown
site, and that the assessment should also specify mitigation measures that
can be implemented to mitigate those risks.482 On the basis of these
statements the Transport Agency expected a willingness to cooperate in
progress towards an appropriate risk assessment process and has now
proposed an appropriate designation condition on that issue (see DC.12.B).
23.99 On 8 June 2017 at a facilitated meeting specifically to address Southdown
issues, attended by experts for Mercury, the Transport Agency, KiwiRail,
Auckland Transport and Transpower, the experts recognised the need for a
risk assessment of the EWL location in the context of an operational
Southdown site and agreed to develop Terms of Reference for the risk
assessment process, particularly to identify the risk acceptance criteria. As
part of this process, Mercury was to provide information regarding
acceptable site reconfiguration options.483 In the wake of the meeting the
EWL Project Team took steps to develop a framework for the risk
assessment process and prepared to schedule a series of workshops. As
part of those steps it requested that Mercury provide the site reconfiguration
options it had agreed to provide.
23.100 Subsequent to that meeting Mr Flexman then declined to provide that
information and made clear in email correspondence to the EWL Project
Team that any risk assessment could only be undertaken on the basis of a
fully functional co-generation plant and no other scenarios, and that any
potential site reconfiguration would take time and could not be progressed
within the timeframe of the Board of Inquiry process. Quite apart from the
fact that Mercury appeared to have resiled from the agreement reached at
the facilitated meeting, this withdrawal of cooperation makes it more difficult
for the Transport Agency to understand its risks. This is despite Mercury
wanting consent declined because of a failure to analyse risk.
23.101 Despite continued efforts to progress an appropriate risk assessment over
the past few weeks, Mercury's position remains entrenched.
482 Flexman EIC para 89 and Phillis EIC para 60. 483 Facilitated Meeting Report regarding the Southdown Site, paragraphs 2.1–2.4.
BF\57040744\1 Page 133
23.102 As stated above, since Mercury's evidence was filed, the Transport Agency
has had discussions with First Gas, who have confirmed that they have
removed the gas control and repressurisation facility from the Southdown
site, thereby removing the source of any such gas-related risk. First Gas
has also informed the Transport Agency that, were the plant ever to be re-
started as a gas-fired generation plant, that equipment would need to be
reinstalled, which would take somewhere between 12-18 months (because
it relies on having the equipment commissioned then built and then
installed).
23.103 First Gas also indicated that, because it considers it undesirable to have a
relief valve located under the road, it would be likely to relocate that
equipment away from the alignment. There are precedents for this type of
movement of gas facilities - a similar gas facility was moved from proximity
with the Mackays to Peka Peka alignment in the Waikanae area.
23.104 Not only does this information undercut Mercury's evidence in respect of
this particular risk; it also reveals that the presence of the EWL over the site
does not give rise to risks which would delay its opening, an assumption
that underpins the evidence of Mercury's economist's, Mr Murray.
23.105 Mercury's evidence says it could recommence generation within 4 months
without the presence of the EWL on the southern portion of the site and 8
months with the EWL in place. Mr Murray contends this 4 month period
could have a material impact on the nation's electricity supply. Mercury's
evidence does not mention that First Gas has removed its facilities.
23.106 In terms of the risk of catastrophic failure and disintegration of a turbine
(thereby creating high-speed projectiles), the Transport Agency considers
this to be a low risk but potentially high consequence event that could be
managed and mitigated should gas fired generation ever commence again
on the Southdown site. To this end, as discussed above, the Transport
Agency has tried to engage constructively with Mercury to evaluate this risk
and the most appropriate mitigation measures. Those efforts have been
frustrated. Again it appears that Mercury are seeking to highlight the risks
relating to a prior use that it does not intending to pursue and then resist
detailed evaluation of those risks or mitigation of them.
23.107 The Transport Agency's position at the opening of this hearing is therefore
that, at this point in time (and for the next 12-18 months, being the lead time
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that re-starting the co-generation plant would appear to require) there is in
fact no risk of any kind arising from locating the EWL over the Southdown
site. Moreover, the Transport Agency understands (in reliance on
Mr Heaps' evidence) that the prospect of the Southdown co-generation
plant ever being re-started to augment electricity supply to Auckland is
doubtful.484 He details how Mercury have sought to put the site forward to
use as a synchronous condenser instead.
23.108 Proper acknowledgment of what plans Mercury has for the site would
enable the Transport Agency to focus on what it can do to assist Mercury
and, if necessary, to compensate it for any loss of or intrusion into that
future use.
23.109 Counsel has written to Mercury's legal adviser Ms Devine seeking specific
details of the site's post-use and of previous safety evaluations done. This
information will allow the Transport Agency to properly evaluate Mercury's
evidence and cross-examine. At this point we do not have that information.
Until this information is provided the Transport Agency takes the view that
Mercury's experts cannot be cross examined.
TR Group
23.110 TR owns the fee simple estate in land at 791-793 Great South Road in
Penrose. It operates a large heavy commercial vehicle hire company
providing and managing vehicles to the transport industry. The site
contains both office and truck service buildings and large parking areas.
23.111 TR also owns Anns Creek. This area has a long history. TR sought, and
was granted resource consents for reclamation and development of 60% of
Anns Creek (a combination of its northern and eastern areas) for industrial
use. This was opposed by first Auckland Regional Council and later
Auckland Council with various Environment and High Court proceedings
taking 8 years. Consent was ultimately granted but for only development of
30% of the Anns Creek area.
23.112 The consents authorise two stages of works in different parts of Anns
Creek. The consent conditions impose significant obligations on TR to
enhance the area through a lava shrubland management plan to protect
and enhance the rare lava shrubland vegetation and features of the site,
484 Heaps rebuttal, paragraph 4.3.
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and a wetland enhancement plan focused on wetland species
enhancement and public access to the marginal strip and through the site.
23.113 At this point only Stage 1 of TR's reclamation works has been given effect
to. Works related to Stage 2, the filling of an eastern part of Anns Creek
adjacent to Great South Road, have yet to be undertaken. The Transport
Agency proposes that this area be used as a temporary construction yard
for the EWL Project and then later handed back to TR for its long-term
commercial use.
23.114 The Transport Agency has engaged extensively with TR seeking to mitigate
the impact of the Project on its business operations. TR's submission
discusses the critical importance of their business being able to secure on-
going access to the company’s own land (part of which it has consent to fill)
to the immediate south of the viaduct that bisects the site. The Project
design is still being refined to inform a final land requirement, however there
will be a requirement to permanently acquire the fee simple interest for the
new road at this location which is largely on structure.
23.115 This includes the Transport Agency designing a suitable underpass and
provide TR with legal access rights to traverse what will be Crown owned
land beneath the viaduct structure. There is on-going design work being
done by the Transport Agency in this regard to accommodate TR’s
requirements. Any PWA compensation agreement that is reached will
record the access via an underpass as an essential term.
23.116 Having to reach the intersection with Great South Road and Sylvia Park
Road means the alignment traverses the southern part of TR's current
operational site and results in a land take of its operational land. It also
traverses the undeveloped Anns Creek area to the south of this. The
Project has tried to strike a balance between these two competing
considerations using the planning framework as a guide. TR would like the
alignment further south, and the Council, wanting Anns Creek further
protected, would prefer to have seen it encroach further into TR's
operational site.
23.117 More than that though the development and preservation of Anns Creek
was seemingly resolved by hard-fought litigation between TR and the
Council, and it appears that neither party is happy with the equilibrium
struck by the Courts. Mr Walter for TR details in his evidence a desire to
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see TR's land in Anns Creek reclaimed for the company's expansion.485
Auckland Council for its part seek, through this process, the protection of all
of Anns Creek, including Stage 2 adjacent to Great South Road. The
Council contends the protection of this area would significantly increase the
value of the Anns Creek environment.486
23.118 The Transport Agency has had to balance these competing positions. As
part of this balance it intends to permanently acquire the fee simple interest
in the balance of the land to the south of East West Link where TR's
consents require it to protect and enhance the ecological area. The
Transport Agency considers that the Project works necessitate it
undertaking restoration and protection works in this area both before, during
and after construction. Further, the Transport Agency considers it
reasonable to ensure that this investment in ecological enhancement
should be permanently protected it by keeping the area in public ownership.
23.119 Notwithstanding the current ecological protections on this area TR contest
any land take because it wants to maintain its rights to develop this area for
expansion purposes. The Transport Agency considers a take of this area,
given the existing protective planning controls, to be reasonable.
23.120 In relation to the adequacy of compensation, Mr Walter's evidence487
suggests that compensation for the land acquired from the company for the
Project will be insufficient to place TR Group in the position that they
presently enjoy, and that the Project impacts on TR Group's potential to
expand its business in the future. At least some of the area that Mr Walter
refers to is in the Anns Creek ecological area discussed above. As
discussed, part of TR Group's land is subject to significant environmental
regulatory control which would constrain its potential for development in the
future.
23.121 Compensation under the PWA is intended to place the landowner in a ‘no
better no worse’ position, by compensating them for the acquisition, taking,
injurious affection or damage in relation to the land required for the public
work. Additionally, compensation for business loss and disturbance costs
are also claimable. To this extent, Mr Walter is not correct.
485 Walter EIC, paragraph 33. Mr Walter expressly seeks to ensure TR maintains access to areas not required for the alignment to allow it "…to pursue future options for this industrial zoned land". 486 Bishop rebuttal, paragraph 1.14. Craig Bishop, Auckland Council ecologist, seeks the protection of Anns Creek East notwithstanding it is subject to consents to allow TR to reclaim it. 487 Blair EIC, paragraphs 19-20.
BF\57040744\1 Page 137
23.122 The Transport Agency is working with TR Group to identify any land in the
vicinity of the current site that could potentially be acquired by the Transport
Agency and offered to TR Group in compensation for the required land
under the provisions of the PWA.
23.123 TR also leases contiguous land to the north that is currently owned by
Dilworth Trust Board over which their existing operations extend. The
Project also has a partial land requirement from the Dilworth Trust Board
owned land which will have the effect of reducing the TR lease area. The
PWA provides the statutory framework for fairly compensating the affected
parties.
Stratex/Tram Lease
23.124 Stratex (lessee) and Tram Lease (landowner) have raised concerns about
impacts on their site at 19-21 Sylvia Park Road. As the Transport Agency
has addressed one issue, others have been raised. Most of these concerns
were discussed during expert conferencing, although many were not
resolved. These are:
(a) Construction dust entering the factory: All experts agreed that
the construction air quality management plan is suitable for
minimising potential adverse dust effects in general.488 However,
Dr Brady for Stratex considered that the site should be specifically
recognised in consent conditions, due to its proximity to construction
works. Ms Needham considers that no change is required as the
proposed conditions already require that sensitive sites are identified
and provided for within the management plan.489
(b) Solvent smells and visible emissions: Stratex has raised
concerns about potential for increased complaints as a result of the
pedestrian walkway and cycle path being brought closer to the point
of its air discharge. The experts agreed that (in accordance with the
good practice guide for assessing and managing odour490) footpaths
and cycleways have a low sensitivity to odour because people are
only present for a short duration. However, they disagreed on the
degree of potential future effects.491 Ms Needham considers this is
488 Joint Witness Statement on Air Quality, paragraph 4.2. 489 Joint Witness Statement on Air Quality, paragraph 5.4. 490 Ministry for the Environment Good Practice Guide for Assessing and Managing Odour (November 2016). 491 Joint Witness Statement on Air Quality, paragraph 7.
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not a material issue given the industrial surroundings and short
durations492
(c) Noise and vibration effects: Stratex uses vibration sensitive
equipment and is concerned that vibration from construction works
could impact on its machines.493 It is also concerned about noise for
its workers. During conferencing the experts agreed that a site
specific noise and vibration management plan is required for the
Stratex site, and the measures that the plan should cover were also
agreed.494 Changes have been made to the conditions of consent in
light of these agreements.495
(d) Settlement from construction works adjacent to the building:
Stratex is concerned that construction works on stormwater pipes
and piles adjacent to its building will exacerbate existing settlement
of the building.496 Mr Alexander, the Transport Agency's
geotechnical expert, states that, as with vibration effects, these
issues can be addressed with specific construction techniques which
can be determined by targeted on site investigation prior to
investigation commencing.497
(e) Asbestos in the roof of the building: Stratex is concerned about
the risk of construction works causing asbestos fibres to dislodge
from its roof and enter the workplace.498 The evidence shows that
asbestos in the roof and walls of the building is a pre-existing issue
that Stratex has been managing and will be required to manage in
the future. Stratex raised this issue in their primary evidence as
support for its request for total replacement of the building's
asbestos cladding system at the Transport Agency's cost. The
Transport Agency's expert, Mr Paykel,499 has given rebuttal
492 Needham EIC, paragraphs 10.4 – 10.8. 493 Duschlbauer and Runcie EIC, paragraph 7.3. 494 Joint Witness Statement for Noise and Vibration (29 May 2017), paragraphs 2.9 and 2.11, and Joint Witness Statement for Noise and Vibration (7 June 2017), paragraph 2.5. See also paragraph 3 of the Joint Witness Statement for Construction Management, which discusses these issues (and refers to the outcomes of the Noise and Vibration Conference). 495 Marler EIC, paragraph 9.7 where Mr Marler states "Vehicle access to the wharf is currently from Onehunga Harbour Road which operates as an off-ramp from the Neilson Street intersection. This road carries large numbers of vehicles and is congested. Given the number of vehicles currently using this road it is unlikely that a mixed use development of the wharf at scale could be serviced from the existing road network without modification. A well designed EWL could therefore better enable the Onehunga Wharf mixed use development, supporting the regeneration of the area." 496 Stapleton EIC, paragraph 7.6. 497 Alexander rebuttal, paragraphs 4.1 - 4.7. 498 Hobbs EIC, paragraph 6.6. 499 Paykel rebuttal, paragraph 1.2.
BF\57040744\1 Page 139
evidence that asbestos fibres are currently being released inside the
building from the building cladding, despite the previous control
measures adopted. In addition, there are other potential monitoring
mechanisms and controls that could be adopted besides a full roof
replacement. During expert conferencing it was agreed that the
quantification, mitigation and control of this issue can be
incorporated within the site specific noise and vibration plan for the
site.500
(f) Vehicle access: Tram Lease, Stratex's lessor, is concerned that
the Project will have impacts on access to and from this site.501 It
also has safety concerns about the U-turn facility near Great South
Road, for trucks exiting its site that wish to travel east.502 A proof of
concept design has been done but during expert conferencing it was
agreed that this U-turn issue needs to be investigated further as the
design is progressed.
(g) Loss of land/reconfiguration of the site: Stratex accepts that
there are viable options to reconfigure the site for the medium term
needs of their business, but raises concerns about longer term
expansion.503 Tram Lease is worried that the site may be less
attractive for future tenants.504 Mr Osborne for the Transport
Agency505 in rebuttal states that there will also be benefits from
greater site exposure. He concludes however that, even if it were
assumed that Tram Lease's concerns were well founded, as a
leases of commercial property, its losses would be addressed
completely through the PWA process.
23.125 Constructive ongoing discussions are taking place between the parties
within a PWA context to investigate the various options to reconfigure the
business to the satisfaction of its shareholders.
Turners & Growers (T&G Global)
23.126 T&G Global is generally supportive of the Transport Agency's overall
objectives, but is opposed to the proposed design as a result of the impact
500 Joint Witness Statement for Stratex Site Specific Noise and Vibration, paragraph 2.9. 501 Burgess (Tram Lease) EIC, paragraph 29. 502 Joint Witness Statement for Access, paragraph 4.2(b). 503 Devlin EIC, paragraph 7.4(h). 504 Catton EIC, paragraph 20. 505 Osborne rebuttal, paragraphs 6.37 - 6.42.
BF\57040744\1 Page 140
on its site. The site houses T&G Global Auckland fruit and vegetable
market distribution centre and its group head office. Issues raised in
relation to route selection have been discussed in Part 2 of these
submissions.
23.127 The principal impacts relate to the need for partial acquisition of land for the
EWL road works (the north-bound off-ramp affects the eastern boundary of
the site) and the associated impacts on two buildings, the FruitWorld offices
and record store (which will need to be demolished) and a building that
houses the banana ripening facility and the crate-washing facility. There
are also potential impacts from the relocation of overhead lines across the
site.
23.128 The future of the banana ripening and crate washing facility building has
been the subject of considerable debate, because in order to provide a safe
connection to SH1 the Transport Agency requires Transpower to relocate
Tower 19 (at the southern corner of T&G Global's site) further to the south.
This in turn alters the alignment of the overhead lines. Transpower's initial
view was that, as a result of this realignment, it would require a new
restrictive easement across the site, which would in the normal course
prohibit the presence of structures. The Transport Agency had therefore
assumed that the whole of the banana ripening and crate washing building
would need to be demolished, as part of the wider works associated with
the EWL.
23.129 Throughout the Transport Agency's evaluation of the Project it has treated
impacts on T&G Global as being potentially significant and every effort has
been made to reduce those impacts. The challenge, however, is providing
a safe connection to the EWL from SH1 within a very confined area. This is
discussed above in the section on alternatives. Discussions between the
parties have been long running, although it has been difficult at times to
coordinate the needs of both T&G Global and Transpower. The Transport
Agency acknowledges that the potential impacts from the relocation of the
Transpower lines did not become fully apparent until late in the consultation
process, as the detailed design was progressed alongside Transpower.
23.130 T&G Global identified a number of concerns about the potential impact of
the Project on its site within its submission and evidence, including:
concerns about the loss of their banana ripening and crate washing
BF\57040744\1 Page 141
building, the temporary relocation of the Transpower line through their site,
the impact of construction noise and vibration on their site, and the potential
for dust to impact operations at the site. The specific physical effects are
addressed by various mechanisms in the consent conditions, which was
acknowledged at expert conferencing.506
23.131 Further design refinements have now pulled the alignment away from the
T&G Global site to the fullest extent possible in order to minimise these
impacts. The current position, as confirmed in the rebuttal evidence of
Mr Nancekivell,507 is that the effects on the banana ripening and crate
washing building can be limited to the curtilage of that building facility,
requiring only demolition of a canopy extending over the loading bay. While
this curtilage area is significant for T&G Global in respect of the access to
and operation of the building, the direct impacts of the proposal on that
building have been reduced.
23.132 The leaves the issue of Transpower's requirements. The Transport Agency
has continued to work with Transpower to encourage it to reduce the impact
of the realignment of the overhead lines on T&G Global. Transpower has
now expressed itself to be satisfied that, notwithstanding the realignment of
the lines across the existing buildings on the site, in the particular
circumstances of the Project, those buildings will not need to be
demolished.508 This affords considerably more flexibility to T&G Global.
23.133 To this end the Transport Agency considers that there are options for
reconfiguration of the site to enable operations to continue with minimal
disruption in the longer term. These could involve relocating the office
space and carparking to enable some additional efficiencies to the current
T&G Global layout. These options are described in the rebuttal evidence of
Mr Baird, an industrial architect.509 To the extent that there are constraints
on the site or that T&G Global is not happy with the options available, off
site relocation of certain aspects of its operations are also possible. The
Transport Agency understands that Transpower does not see any
fundamental barrier to achieving Mr Baird's layout, subject to some
appropriate health and safety requirements during construction, and that
the proposed new carpark and office building could be developed if
506 Joint Witness Statement on Construction Management, paragraph 5. 507 Noel Nancekivell, Rebuttal, paragraph 7.74-7.77 508 Harrington rebuttal. 509 Baird rebuttal, paragraphs 6.2-6.9.
BF\57040744\1 Page 142
appropriately sequenced in its construction so that the temporary line
deviation can be accommodated.
23.134 The Transport Agency acknowledges that any building works, in respect of
whatever reconfiguration of the site T&G Global may select, will be at the
Transport Agency's expense.
23.135 Beyond this, the PWA will compensate T&G Global for both temporary
disruption and for permanent site restrictions.
TOES, OBA, Re-Think EWL and Manukau Harbour Restoration Society
23.136 There were submissions on the Project from a number of active community
groups, including Onehunga Business Association (OBA), The Onehunga
Enhancement Society (TOES), Rethink East West Link (REWL) and
Manukau Harbour Restoration Society (MHRS). These groups share some
common members and to a significant, but not complete degree, share
similar concerns.
23.137 The Transport Agency has been liaising with these groups for a long period
of time in relation to the EWL and in formulating its options. They were part
of the stakeholder group consulted at the earliest phases of the Business
Case process. The groups have concerns about the impact of the Project
on Neilson Street interchange and primarily are concerned about severance
of the township from the coast.
23.138 All these groups have contributed to consultation in developing the current
Project. Since the Project has crystallised they have also been party to
many discussions in respect of the Project and its mitigation measures.
Through this process of engagement it has become apparent that while
these groups support an east west link of some kind, they do not like the
Neilson Street interchange design. What their preferred design is and how
it can be implemented is less clear.
23.139 A proposal described variously as the OBA option and as "the Community
Plan" was advanced by TOES/OBA et al during the engagement process.
This has been comprehensively addressed in Part2 regarding Key Issues
for alternatives. Evaluation of that OBA design revealed that it has flaws,
not least of which that involved tunnelling through Te Hōpua (and beneath
and parallel to SH20, both with significant construction complexity), and
BF\57040744\1 Page 143
additional Harbour crossings, which in the Transport Agency's view are not
practicable.
23.140 The Transport Agency has also endeavoured to determine whether there
are aspects of the community plan which could be incorporated into the
current EWL proposal. This has resulted in some changes to the design,
including the Option 4 alignment (which provided free flow), the land, which
sought to provide connectivity to the wharf, improvements through the
shared path connection to Taumanu Reserve and local road improvements.
These changes have not been acknowledged by the groups and the
commitment to explore further design refinements have been rebuffed.
23.141 It appears that the community groups' approach to this hearing is to
endeavour to derail the current proposal by any means necessary, despite
the fact that the community groups clearly recognise the need for an east
west connection to address very real traffic congestion concerns that persist
in the Onehunga area, its local roads, and road connections between the
town and the wharf, and their frustration with ongoing inability to develop
the wharf as a community destination.
23.142 Notwithstanding these acknowledged concerns with the current situation,
they would rather oppose a viable solution on the basis that it does not give
them everything that they want in the hope that, if consents are declined,
the Transport Agency will finally relent and implement what these groups
want. This is despite the greater effects these would have on Te Hōpua
and the CMA.
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PART 4
24. POLICY AND PLANNING DOCUMENTS
24.1 This section sets out, at a relatively high level, the planning instruments to
which the Board is required to have regard under sections 171(1) and
104(1)(b) of the RMA. Specific comment is provided about the most
important and relevant plan provisions.
24.2 During expert conferencing, the planners agreed that the documents listed
in section 14 of the AEE (Statutory Framework), with the addition of the
National Policy Statement on Renewable Electricity Generation, should
form part of the "common bundle" of relevant planning documents.510 For
completeness, this includes:
(a) The New Zealand Coastal Policy Statement;
(b) The National Policy Statement for Freshwater Management;
(c) The National Policy Statement for Urban Development Capacity;
(d) The National Policy Statement for Electricity Transmission;
(e) The National Policy Statement on Renewable Electricity Generation;
(f) The Hauraki Gulf Marine Park Act (although this is only relevant to
the parts of the Project within the catchment of the Hauraki Gulf);
(g) Auckland Unitary Plan – Operative in Part;
(h) The Auckland Regional Plan: Coastal.
24.3 The Transport Agency has considered these planning documents in the
development and design of the Project from an early concept stage and
they have infused the selection of the Preferred Corridor and the Preferred
Alignment.511
24.4 The AEE and the evidence of Ms Rickard provide a comprehensive
consideration of all these documents in relation to the Project, at a level of
detail that is commensurate with the importance and relevance of each
document to the Project.
510 Joint Witness Statement on Planning, paragraph 3.2. 511 Rickard EIC, paragraph 10.3 and Linzey (Alternatives) EIC.
BF\57040744\1 Page 145
24.5 The coastal component of the AUP(OP) is still subject to the final approval
of the Minister of Conservation, but the majority of the regional and district
plan provisions are operative. The Transport Agency considers that the
coastal plan component of the AUP(OP) can be given significant weight,
given its status, even though it is not yet operative.512
24.6 It is clear from a review of all evidence filed by submitters that the AEE and
Ms Rickard's evidence provide the only single, integrated and cohesive
assessments of the Project as a whole, including all the relevant planning
provisions. A number of the other planning witnesses have adopted a
narrow or compartmentalised approach to their planning assessments,
focusing on only one part of the Project (or one site) and have not assessed
the wider benefits and effects. This was confirmed in expert conferencing,
where all the planning witness apart from Mr Brown (for Ngāti Whatua
Orakei), Ms Coombes (for Auckland Council), Mr Gouge513 (for Auckland
Council) and Mr Winter (for Auckland Transport), stated they were only
interested in site specific matters. Even the assessment undertaken by
Ms Coombes and Mr Gouge has been split between CMA and land
jurisdiction.
24.7 In light of the comprehensive assessments already made by the Transport
Agency and its witnesses, these submissions will only briefly comment on
the higher order documents and will address the most relevant provisions
from the AUP(OP).
24.8 In relation to the higher order documents the Transport Agency considers
that:
(a) Since the majority of the Project area is located within the coastal
environment, the NZCPS is a relevant consideration;
(b) However, consideration of the NZCPS must be undertaken within
the relevant statutory framework (section 104D does not allow
consideration against the NZCPS) and in light of the fact that the
NZCPS has very recently been given effect to within the AUP(OP).
This point is discussed in more detail below;
512 The Transport Agency concurs with the Memorandum of Counsel and Planner for the Board of Inquiry, paragraph 44, on this matter. For completeness, the Transport Agency does not concur that the coastal plan is "effectively beyond challenge", given that the Minister has the power to make certain changes. However this difference of opinion is not material to any assessment. 513 Although Mr Gouge did not offer any view on section 104D during conferencing.
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(c) The NPS Urban Development Capacity provides high-level support
for the provision of infrastructure and the integration of the
infrastructure and land use. The East West Link is a clear example
of such infrastructure. The site specific effects of infrastructure need
to be managed;
(d) The NPS on Electricity Transmission (NPSET) is relevant for the
Project given the presence of the National Grid at various locations
along the route. The most important aspect of the NPSET is the
need to protect the Grid before, during and after construction.514
The engagement with Transpower and the Project response to
Transpower issues is outlined in Part 2 of these submissions.
NPS on Renewable Energy Generation
24.9 The NPS on Renewable Energy Generation has been cited as relevant by
Mr Grala on behalf of Mercury. Specifically, he states that the EWL is not
consistent with the NPS on Renewable Energy Generation due to the
potential for reverse sensitivity effects on the Solar Research and
Development Centre located on Mercury's Southdown site.515
24.10 This NPS states (Policy D) that decision makers shall, to the extent
reasonably possible, manage effects to avoid reverse sensitivity effects on
existing renewable energy facilities.
24.11 The simple answer to this issue is that the EWL will not give rise to reverse
sensitivity effects on the Solar Research and Development Centre.
Reverse sensitivity in this situation requires:
(a) A sensitive activity ie one that is sensitive to the effects generated
by infrastructure; and
(b) A real risk of complaints or actions by people from that sensitive
activity that lead to restrictions on operations or expansion of that
infrastructure or related activity.
24.12 The evidence filed by Mercury gives no indication of:
(a) The operational effects the Solar Research and Development
Centre and how that will impact on people using the EWL;
514 Rickard EIC, paragraphs 10.16 – 10.21. 515 Grala EIC, paragraph 70(a).
BF\57040744\1 Page 147
(b) How the users of the EWL would be affected, given that most of
them will move relatively quickly through the area (much like the
current train passengers); and
(c) How those users of the EWL could complain or bring about
restrictions on Mercury's Solar Research and Development Centre.
24.13 The potential risks associated with the recommencement of the co-
generation operation at Southdown are discussed in Part 3 of these
submissions, but this is not an activity with which the NPS is concerned.
24.14 The Transport Agency considers that the most relevant planning documents
are the NZCPS and the AUP(OP) and specific provisions of those
documents are discussed below due to their direct relevance to the Project.
New Zealand Coastal Policy Statement
24.15 The importance of the NZCPS to planning in the coastal environment has
been confirmed by the Supreme Court in the decision of Environmental
Defence Society Inc v The New Zealand King Salmon Co Ltd516 (King
Salmon).517 It is a separate and distinct consideration for the Board under
sections 104 and 171, but is not a relevant consideration for section 104D
regarding the test for non-complying activities.
24.16 However, the NZCPS is not the dominant planning document for this
Project and the weight to be given to it should reflect the following factors:
(a) The NZCPS is only one of the considerations, of many, relevant to
assessment under sections 104 and 171;
(b) By contrast, King Salmon involved the approval of a plan change
which was required to "give effect" to the NZCPS, and therefore the
NZCPS was the dominant legal framework. Designations and
resource consents involve different tests with a broader range of
considerations;
(c) The NZCPS has now been given effect to within the specific
Auckland context with the AUP(OP);
516 [2014] NZSC 38. 517 Paragraphs 133 and 134 of the Final Report and Decision of the Board of Inquiry into the Ara Tuhono – Puhoi to Wellsford Road of National Significance: Puhoi to Warkworth Section acknowledged the importance of the NZCPS and the directive policies it contains and gave the relevant policies significant weight, as required by the clear policy reasons in King Salmon, alongside other matters that the Board is required to consider.
BF\57040744\1 Page 148
(d) The development, hearing and recommendations on the AUP(OP)
expressly considered how to give effect to the NZCPS518 and, with
the minor amendments approved in the recent decision of the High
Court,519 the AUP(OP) can be considered to fully reflect the NZCPS,
its competing provisions and its application in the Auckland context;
(e) It would be inappropriate to give greater weight to the NZCPS
(which applies across the country to a wide variety of environments)
over the AUP(OP), which is specific to Auckland.
24.17 The interpretation of the NZCPS in King Salmon is not determinative of the
interpretation of the NZCPS for this Project for the following reasons:
(a) In King Salmon the Supreme Court was required to interpret the
meaning of two "sets" of provisions in the NZCPS; one regarding
outstanding natural landscapes and one regarding aquaculture, and
apply that meaning to a specific application with a high and
unmitigated level of effect (and using the statutory test of giving
effect to the NZCPS);
(b) The Court found that the directive "avoid" policy on natural
landscapes should be preferred to the more general "recognise"
provision regarding aquaculture;
(c) The current proposal engages different provisions of the NZCPS
with different wording than those engaged by the plan change at
issue in King Salmon;
(d) While the Project will create adverse effects on biodiversity (under
Policy 11), it will also promote the restoration of natural character
(Policy 14), improve public open space and walking access
(Policies 18 and 19), enhance water quality (Policy 21) and enable
people to provide for their economic and social wellbeing
(Objective 6 and Policy 6). The Transport Agency considers that the
Project involves an appropriate reclamation (Policy 10) and has
been developed in accordance with the principles of the Te Tiriti o
Waitangi / The Treaty of Waitangi (Policy 2);
518 Report to Auckland Council – Overview of recommendations on the Proposed Auckland Unitary Plan (22 July 2016), paragraph 5.2. 519 Royal Forest and Bird Protection Society of New Zealand Incorporated v Auckland Council [2017] NZHC 980.
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(e) When all these provisions are taken into account, the Transport
Agency considers the Project is consistent with the NZCPS as a
whole. It is not necessary for the Project to meet, achieve or give
effect to every part of the NZCPS, including the directive policies in
Policy 11;
(f) The recent Environment Court decision of Royal Forest and Bird v
Bay of Plenty Regional Council, approved regional coastal plan
provisions that allowed for consideration of significant infrastructure
projects in high value natural heritage areas;520
(g) In the context of Policy 11, for this Project, there are various
mitigation and offset measures that assist to address the adverse
effects of loss of habitat. By contrast, the adverse effects in King
Salmon could not be addressed or mitigated.
Auckland Unitary Plan (Operative in Part)
24.18 The Project touches upon a wide variety of provisions from the AUP(OP)
but the most relevant provisions relate to:
(a) Reclamation;
(b) Infrastructure, use and development; and
(c) Biodiversity and natural features.
24.19 Ms Rickard notes that the AUP(OP) objectives and policies are structured in
"sets" so that there may be a strongly directive policy (often with guidance
as to the level and nature of effect to be avoided), followed by additional
provisions applied where complete avoidance cannot be achieved or even
policies that "enable" or "provide for" certain activities.521 She concludes
that this approach means that some proposals cannot directly "meet" every
provision of a set but read as a whole, the policies reflect the competing
interests in Part 2.522
520 Royal Forest and Bird Protection Society of New Zealand Inc v Bay of Plenty Regional Council [2017] NZEnvC 45. We note that this decision has been appealed to the High Court. 521 Rickard EIC, paragraph 10.5. 522 Rickard EIC, paragraph 10.5.
BF\57040744\1 Page 150
24.20 Most importantly the Plan must be read as a whole.523 A proposal may
engage a number of policy areas and therefore these policy sets cannot be
read in isolation but must be considered together.
Reclamation provisions
24.21 Particular attention needs to be given to the reclamation provisions of the
regional coastal plan. The Transport Agency's position is summarised as
follows:
(a) The reclamation has been designed and presented as an integrated
package involving transport, leachate containment, landscape
rehabilitation, public access, and stormwater aspects;
(b) It is this integrated proposal or activity that must be assessed
against the relevant policies;
(c) The reclamation policies allow reclamations that can meet a list of
criteria (outlined in Policy F2.2.3(1) a copy of the relevant policies is
attached at Attachment E) or that involve either infrastructure or
public access. Policy 3 specifically "provides for" reclamation which
is necessary to enable construction of infrastructure;524
(d) The proposed reclamation can meet all the limbs of Policy 1
especially when considered as an integrated package:
(i) The Project will provide significant regional and some
national benefit through improvements in travel time and
travel reliability, and then consequential economic benefits.
The improvements in stormwater quality and landscape
rehabilitation are regional benefits;
(ii) There is no other practicable alternative to locating this
combination of activities on land. The most effective and
efficient location for the road is south of the existing arterial
road corridor (ie Neilson Street and Church Street). There is
no other practicable location for a catchment based on the
stormwater solution or a containment bund. The landscape
rehabilitation can only occur in the CMA;
523 Rickard EIC, paragraph 10.8 and Report to Auckland Council – Overview of recommendations on the Proposed Auckland Unitary Plan (22 July 2016), paragraph 5.1. 524 Rickard rebuttal, paragraph 5.17.
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(iii) Efficient use will be made of the CMA through using the
minimum area necessary to provide for the proposed
integrated activity. In this respect, the stormwater wetlands
have developed with an innovative design to minimise their
area and to provide recreation space and public access.
Access is also provided via boardwalks in some places
rather than through reclamation to minimise the required
area.
24.22 The Memorandum of Counsel and Planner discusses Policy F2.2.3(1) in
some detail and also refers to Policies (4) and (5), regarding mitigation of
effects through form and design and compensation. However, the analysis
appears to be incomplete:
(a) Policy 3, which provides for reclamation associated with
infrastructure and public access, is not referred to in the
Memorandum. This policy is critical to the evaluation of the Project;
(b) Only a selection of the Transport Agency's evidence has been
reviewed in reaching this view. In particular, the evidence of
Mr Gavin Lister (Primary and Rebuttal) explains the rationale for the
proposed design and size of the reclamation. This approach is
supported by all landscape and urban design witnesses.
Infrastructure, Use and Development
24.23 The Plan contains a number of provisions that specifically recognise the
importance and benefits of infrastructure, including RPS B3 and E26 of the
Plan. These provisions reflect the enablement components of Part 2 (and
the NZCPS) and are highly supportive of the Project. They are important in
order to balance the more protective provisions elsewhere in the AUP(OP).
The Transport Agency submits they must be given significant weight in the
planning assessment.
24.24 Alongside those enabling provisions is a requirement to avoid, remedy or
mitigate the adverse effects of the development and operation of
infrastructure.
24.25 The Transport Agency considers that its design has avoided many effects
and its proposed suite of conditions will remedy or mitigate residual effects.
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24.26 Chapter E26 (Policy 6) of the Plan also has a specific set of factors that
need to be considered when new infrastructure is proposed in natural
resource overlays and the coastal environment.
Biodiversity
24.27 The AUP(OP) contains provisions regarding the protection of biodiversity
and the protection of ONFs, which give effect to the corresponding
provisions in the NZCPS.
24.28 The Transport Agency acknowledges that the Project will result in adverse
effects on biodiversity in two specific areas:
(a) Adverse impacts on avifauna habitat in the Māngere Inlet, due to the
reclamation; and
(b) Adverse impacts on the ecosystem and unique plant species within
Anns Creek.
24.29 In this respect, the Project is not consistent with certain provisions in D9 of
the Plan, primarily Policies 1, 9 and 10, which seek to avoid adverse effects
on certain biodiversity.
24.30 However, the same policy set expressly states in Policy 8 that the Plan
should "manage the effects from the development of infrastructure in
accordance with the policies above, recognising it is not always practicable
to locate and design infrastructure to avoid significant ecological areas".
The Transport Agency considers that it is not practicable to avoid locating
the alignment in the Anns Creek SEA or along the northern shore of the
Inlet, for all the reasons discussed earlier in these submissions in relation to
alternatives assessment and option selection.
24.31 In addition, the assessment of the Project against these provisions needs to
acknowledge the level of effects and the specific design and mitigation
measures included within the Project. In Anns Creek East, there may be an
improvement to the biodiversity values through restoration and long term
protection.
Outstanding Natural Features
24.32 The specific ONF objectives and policies are contained in section D.10 of
the AUP(OP). Policy D10.3.3 focusses on avoiding adverse effects on an
BF\57040744\1 Page 153
outstanding natural feature and adverse effects on Mana Whenua values
associated with the feature. The effects that are to be avoided are effects
on the natural characteristics and qualities that contribute to an ONF's
values.
24.33 Dr Smith explains in his evidence what factors were relevant to scheduling
the two ONFs within the Project area, and what he considers the remaining
values of the ONFs to be. Policy D10.3.3(b) specifically recognises that the
provision of infrastructure may be appropriate within an ONF provided that it
is consistent with the protection of an ONF's values.
24.34 The Transport Agency acknowledges that the Project will not avoid adverse
effects on the ONFs completely. However, the experts who attended
conferencing on this topic were able to agree that the residual effects on the
geological values of the Anns Creek East ONF will be less than minor, and
the proposed earthworks on the crater floor and in the trench (to the south
of the tuff ring) will have minimal adverse effects on Te Hōpua ONF.
24.35 The Transport Agency considers that the Project has minimised adverse
effects on the ONFs to the extent practicable, has mitigated the remaining
minor adverse effects and is consistent with the relevant ONF objective and
policies.
25. STATUTORY ASSESSMENT
25.1 These submissions outline the statutory framework to be considered by the
Board and offers the Transport Agency's views on how the Project should
be assessed against that framework.
25.2 The breadth of issues and the complexity of the existing environment
means that the statutory assessment necessarily touches on many areas.
As a result, the statutory analysis in these submissions is at a high level
and does not discuss each statutory provision or policy individually. Further
detailed analysis is provided in the evidence of Ms Rickard, and in Part I of
the AEE.
25.3 The main statutory provisions are canvassed below, based on key areas,
responses to the key issues outlined in Part 2 of these submissions and in
response to Auckland Council's Key Issues report. All issues raised in that
Key Issues report have been addressed.
BF\57040744\1 Page 154
Existing and Future Environment
25.4 The effects of the Project must be assessed against the environment,
including the existing and future environment. The Memorandum of
Counsel and Planner to the Board describes the "environment" as
including:525
(a) The future state of the environment as it might be modified by the
utilisation of rights to carry out permitted activities; and
(b) The environment as it might be modified by the implementation of
resource consents which are likely to be implemented.
25.5 The Transport Agency agrees with this statement of the law and
emphasises that a real-world assessment is required.526 This point is
relevant to a number of submitter concerns that have been driven by
activities, proposals and aspirations which are not part of the future
environment, including Panuku, The Onehunga Enhancement Society and
other affected landowners.
Notices of requirement – section 171 matters
Assessment of Effects
25.6 The detailed assessment of effects for the Project is set out in Part G of the
AEE. The supporting assessments and technical reports provide further
detail for the specific topic areas that are covered in Part G. Those effects
are discussed further in the evidence of the Transport Agency and
summarised in the evidence of Ms Hopkins.
25.7 The Project results in a number of substantial positive effects and also a
number of potential adverse effects. Those adverse effects are addressed
through a suite of measures to avoid, remedy, mitigate or offset the actual
and potential effects. The most up to date version of the proposed
conditions for the designations and the resource consents is attached to the
rebuttal evidence of Ms Hopkins.
25.8 Based on the Transport Agency's collective evidence and suite of proposed
conditions, Ms Rickard concludes that "the actual and potential effects on
525 At paragraphs 17 – 23, which makes reference to the decision of the Court of Appeal in Queenstown Lakes District Council v Hawthorn Estate Limited [2006] NZRMA 424. 526 The "real world" approach was discussed in Queenstown Central Ltd v Queenstown Lakes District Council [2013] NZHC 815 at [85].
BF\57040744\1 Page 155
the environment have been robustly identified, assessed and adverse
effects have been appropriately avoided, remedied or mitigated" and "the
Project will deliver significant positive effects".527
Relevant statutory planning documents – section 171(1)(a)
25.9 Section 171(1)(a) requires particular regard to be had to any relevant
provisions of a national policy statement, national environmental standard,
regional planning documents and district planning documents. (The section
includes reference to a plan or proposed plan which includes district and
regional plans).
25.10 Those relevant planning documents have been discussed earlier in these
submissions and within the AEE and the evidence of Ms Rickard.
25.11 The Project has been designed and developed to appropriately balance the
competing values, having regard to the policy framework as a whole.528
Given the integrated function of the alignment it is critical that all the
relevant planning provisions are considered.
25.12 The Transport Agency considers that, overall, the Project is consistent with
the relevant planning documents. There is broad support within the policy
framework when considered as a package together, with the proposed
mitigation and offsets.529 Although the Project is inconsistent with some
individual provisions within the documents, it also strongly meets a number
of other provisions and overall, particular regard has been had to all the
relevant policies.
Adequate consideration of alternatives – section 171(1)(b)
25.13 Under section 171(1)(b), the Board must have particular regard to whether
adequate consideration has been given to alternative sites, routes and
methods of undertaking the public work. As discussed earlier, this is a
process-focused inquiry, and the Transport Agency does not need to
demonstrate it has selected the best of all available alternatives, although it
considers that it has selected the best alternative.
527 Rickard EIC, paragraph 17.8. 528 Rickard EIC, paragraph 11.62. Ms Rickard's analysis of the statutory planning documents is in Section 11 of her EIC. 529 Rickard EIC, paragraph 11.62.
BF\57040744\1 Page 156
25.14 The process that the Transport Agency used to consider alternative routes
and sites has been described in detail in Part 2 of these submissions and in
the evidence of Ms Linzey.530 The process was comprehensive, robust,
transparent and replicable. It was of a high quality and substantially more
than adequate. The Transport Agency considers that not only was the
process robust but that it identified the best alternative.
25.15 While some submitters may dislike the outcome of the process, and the
choice of route made by the Transport Agency, no party has seriously
challenged the process used to consider the alternatives.
Reasonably necessary to achieve objectives – section 171(1)(c) – case
authority
25.16 Section 171(1)(c) requires the Board to have particular regard to whether
the work and designation are reasonably necessary for achieving the
objectives of the requiring authority for which the designation is sought.
The assessment is focused on whether the means proposed are necessary
to achieve the Project objectives. The focus of the inquiry is on the Project
objectives themselves.
25.17 The High Court in Queenstown Airport Corporation Limited v Queenstown
Lakes District Council531 described the phrase "reasonably necessary" as
one used in everyday language which requires no undue elaboration.
Despite this general statement the Court went on to endorse a description
of "necessary" as falling somewhere between expedient or desirable on the
one hand and essential on the other, and the use of "reasonably" qualifies it
to allow some tolerance. The definition allowed the Court to apply a
threshold assessment that is proportionate to the circumstances of the case
in order to assess whether the proposed work is clearly justified.
25.18 EWL will provide integrated connections between Onehunga / Penrose and
SH20 and SH1, with a range of new cycling and walking connections. As a
result of this integration all the components are reasonably necessary to
achieve the various Project objectives and all the connections are essential
to achieving the objectives.
530 Linzey (Alternatives) EIC. See section 6 in particular. 531 [2013] NZHC 2347 at [93] – [98].
BF\57040744\1 Page 157
25.19 Based on his detailed assessment of the Project, Mr Murray considers that
the existing transport problems are significant, the Project objectives
suitably address these problems and that the transport works are necessary
to meet those objectives.532 He concludes that the Project "strongly
achieves its objectives, with substantial benefits to both the local area and
the wider network"533 and with improved "safety and accessibility for cycling
and walking between Māngere Bridge, Onehunga and Sylvia Park, and
accessing Ōtahuhu East".534
25.20 The additional lanes on SH1 have not been discussed in detail in
submissions (or evidence of other parties), but those additional lanes are
reasonably necessary in order to provide additional capacity for traffic
connecting to and from EWL and SH1. Without these additional lanes, SH1
would have insufficient capacity to accommodate the increased flows from
EWL and maintain an appropriate level of service.535
25.21 Three submitters appear to be actively seeking that parts of the designation
be removed or rolled back on the grounds that such land is not reasonably
necessary for the designation:
(a) Envirowaste;
(b) TR Group; and
(c) Ward Demolition.
25.22 Envirowaste has challenged the need to take additional land on the south
side of its site for the purpose of replacing the existing Council leachate
trench.536
25.23 The evidence of Dr Wallis is that the replacement leachate interception
trench is necessary to capture leachate and the evidence537 of
Mr Nancekivell is that the land is required to include a services corridor and
to protect the structural integrity of the road.538 Given this evidence, the
Transport Agency considers this work to be necessary.
532 Murray (Traffic and Transportation) EIC, paragraph 1.14. 533 Murray (Traffic and Transportation) EIC, paragraph 1.14. 534 Murray (Walking and Cycling) EIC, paragraph 1.8. 535 Murray (Traffic and Transportation) EIC, paragraph 10.22. 536 Dolan EIC, paragraph 5.16. 537 Wallis Rebuttal, paragraphs 4.5 - 4.7. 538 Nancekivell Rebuttal, paragraph 7.11.
BF\57040744\1 Page 158
25.24 The evidence of Mr Walter on behalf of TR Group queries why the
Transport Agency has designated the land south of the proposed structures
which are not required for the long term use of the road.539 The Transport
Agency has designated this land to:
(a) Mitigate the construction effects arising from the construction of the
piers and the bridge structure on the site; and, more importantly
(b) To provide mitigation and offset for the effects on ecological values.
25.25 The Transport Agency considers that the designation is necessary in this
part of Anns Creek to allow this mitigation and offset to occur. As explained
by Ms Myers in her rebuttal evidence,540 the long term protection of Anns
Creek would be a significant outcome to address the adverse effects of the
alignment on the ecological values in Anns Creek. Without that offset it
would be extremely difficult, if not impossible, to adequately address the
effects.
25.26 Ward Demolition has challenged whether the designation is reasonably
necessary on its land given that there are alternatives available to use a
tunnel or bridge structure. The evidence of Ms Rickard and
Mr Nancekivell541 outlines why these are not realistic alternatives for this
location. Ward Demolition's complaint is about the alternative method used
for the route, rather than reasonable necessity of the chosen route.
25.27 Mr Grala, on behalf of Mercury, states that works are only reasonably
necessary if there are no other reasonably available options to achieve the
stated objectives of the requiring authority.542 This statement does not
reflect the case authority on section 171(1)(c). While the presence of a
reasonably available alternative may indicate that works or designation are
not in fact reasonably necessary, the correct test is to assess the necessity
of the works or designation themselves. Undue focus on alternatives under
section 171(1)(c) creates a real risk of overlap with the consideration of
alternatives in section 171(b).
539 Walter EIC, paragraph 21. 540 Myers rebuttal, paragraph 1.5. 541 Nancekivell Rebuttal, paragraph 7.82 and Rickard rebuttal, paragraphs 7.7 – 7.10. 542 Grala EIC, paragraph 74.
BF\57040744\1 Page 159
Other matters – section 171(1)(d)
25.28 Section 171(1)(d) requires the Board to have particular regard to any other
matter it considers reasonably necessary in order to make a
recommendation on the NOR.
25.29 In this context the Auckland Plan is a highly relevant other matter. The
Project directly implements and is supported by the Auckland Plan.543
25.30 Other matters considered by Ms Rickard are set out in Part I: Statutory
Matters of the AEE.544 At the planners' expert conference, the other matters
were agreed to be:
(a) New Zealand Electrical Code of Practice for Electrical Safe Distance
NZECP 34:2001;
(b) Resource Management (National Environmental Standards for
Electricity Transmission Activities) Regulations 2009; and
(c) Onehunga Transform Onehunga High Level Project Plan –
March 2017, Panuku Development Auckland.
25.31 The Transport Agency notes that Panuku's High Level Project Plan must be
approached with considerable caution as it is essentially an internal Council
document prepared by Panuku and presented to the Council. It has not
been the subject of public consultation and has not been assessed or
tested under the RMA or the Local Government Act. It is not the basis for
the current or even the future land use pattern of western Onehunga.
Further, it does not appear to reflect the unified view of the Council, rather
the view of its development agency.
Gateway Tests – section 104D – Case Authority
25.32 As outlined above, section 104D sets out two gateway tests.
25.33 The effects limb of the gateway test requires consideration of whether the
adverse effects are no more than minor.
25.34 In considering the policy limb of the gateway test at section 104D(1)(b), the
Board must undertake an overall consideration of the objectives and
policies of the relevant plan(s), to determine whether or not the Project is
543 Rickard EIC, paragraphs 15.2 and 15.7. 544 Rickard EIC, paragraph 15.8 and tabulated in Section 15.8 of the AEE.
BF\57040744\1 Page 160
contrary to the plan(s) as a whole.545 Although non-complying activity
status itself recognises that the proposed activity is unlikely to be supported
by all the provisions of the relevant plan, consent may be granted if the
activity is not contrary to the overall objectives and policies of the plan.546
"Contrary to" is a high test, in the sense of "being opposed to in nature,
different to, opposite to" or "repugnant to".
25.35 In assessing whether an application is contrary to the objectives and
policies of the relevant plan, case law has confirmed that a broad
judgement should be made. This requires more than just isolating one or
two policies with which the activity is contrary, or checking whether the
activity fits exactly within the detailed provisions of a plan.547 Rather, the
assessment requires an overall consideration of the purpose and scheme of
the plan.548 An activity does not need to be consistent with every relevant
objective and policy in order to pass the gateway test under section 104D.
Further, no one policy should act as a veto or be applied as a rule.
25.36 As concluded in the Memorandum of Counsel and Planner to the Board549 a
holistic approach is required.
Gateway Tests – section 104D – Assessment
25.37 Ms Rickard concludes that the first "effects gateway test"550 will not be met,
as it would "be unusual for a transport infrastructure project to have less
than minor effects on the environment".551 There will be adverse effects on
coastal ecology, particularly loss of avifauna foraging habitat as a result of
reclamation and impacts on threatened vegetation in Anns Creek.552
25.38 Ms Rickard goes on to assess the second "objectives and policies gateway
test". The assessment is detailed in the Statutory Assessment (Part I of the
545 Dye v Auckland Regional Council [2002] 1 NZLR 337 (CA) at [25]. The High Court in Queenstown Central Limited v Queenstown Lakes District Council and Cross Roads Limited [2013] NZHC 817 seems to be suggesting that being contrary to one objective in a proposed plan entails that the second threshold test is failed, but a number of later decisions from the Environment Court preferred to follow the Court of Appeal's approach in Dye. These Environment Court decisions are: R J Davidson Family Trust v Marlborough District Council [2016] NZEnvC 81 at [247]-[248], Cookson Road Character Preservation Society Inc v Rotorua District Council [2013] NZEnvC 194 at [46]-[51], Calveley v Kaipara District Council [2014] NZEnvC 182 at [142], Saddle Views Estate Ltd v Dunedin City Council [2014] NZEnvC 243, [2015] NZRMA 1 at [82]. 546 Arrigato Investments Ltd v Auckland Regional Council (2001) 7 ELRNZ 193 (CA). 547 See Kuku Mara Partnership (Forsyth Bay) v Marlborough DC (EnvC) W025/02 at [728]. See also See Re P & I Pascoe Ltd [2014] NZEnvC 255, in which the Environment Court reaffirmed the approach of considering the objectives and policies as a whole, rather than singling out a particular objective or policy. 548 See Elderslie Park Ltd v Timaru District Council [1995] NZRMA 433 (HC) at page 12. 549 Paragraphs 36-44. 550 RMA, section 104D(1)(a). 551 Rickard EIC, paragraph 1.4. 552 Rickard EIC, paragraph 12.3(c).
BF\57040744\1 Page 161
AEE report) and in her evidence.553 She concludes that on balance "the
Project will not be contrary to the objectives and policies of the Unitary Plan
and the Regional Plan Coastal. Therefore [she considers] that the proposal
passes the second "gateway test" in Section 104D".554 Consistent with
case law, the approach to assessment was a holistic one, rather than
focussing only on one or two specific provisions.555
25.39 This conclusion is also reached by Ms Coombes on behalf of the Council.
25.40 Mr Brown on behalf of Ngāti Whatua considers the proposal is contrary to
section 104D. However, that assessment is undertaken with reference to
only one specific objective or policy of the AUP(OP). Mr Brown's evidence
refers to the assessment undertaken by Ms Coombes and Mr Gouge but
reaches a different conclusion without any analysis. Given the limited
assessment of the relevant provisions, Mr Brown's conclusion on
section 104D should be given little weight, and the evidence of Ms Rickard,
Ms Coombes and Mr Gouge should be preferred.
25.41 The Memorandum of Counsel and Planner to the Board assesses the
proposal against the policy gateway test and concludes that the Project's
assessment with respect to that test is very finely balanced. However, this
assessment appears to focus solely on reclamation Policy F2.3(1), and one
clause in that policy, and has not undertaken the holistic assessment of the
objectives and policies that is required.
Assessment of Effects – section 104(1)(a)
25.42 The assessment of effects for the Project has been discussed earlier and
does not need to be referenced again. Under section 104 of the Act the
focus is on any actual or potential effects of allowing the activity. The
activity for which resource consent is required includes the reclamation and
associated coastal works, various works in relation to contaminated land,
dredging, the coastal structures and vegetation alteration or removal within
an SEA.
25.43 As with the effects of the designation, there are a range of positive and
potential adverse effects of these activities.
553 Refer Section 15.5 of the AEE, and Rickard EIC, paragraphs 12.6 to 12.14. 554 Rickard EIC, paragraph 12.14. 555 Arrigato Investments Ltd v Auckland Regional Council (2001) 7 ELRNZ 193.
BF\57040744\1 Page 162
Statutory Planning Documents – section 104(1)(b)
25.44 The relevant statutory planning documents are discussed earlier in this
section. Although the Project is inconsistent with some individual provisions
within the documents, it also strongly meets a number of other provisions
and overall is consistent with the statutory documents.
25.45 In relation to the assessment of the resource consents under the AUP(OP),
the Transport Agency notes that there are two land use consents556 that
need to be assessed against the district plan component of the AUP(OP).
As a result all the provisions of the AUP(OP) are relevant to the
consideration of the resource consents that have been applied for.
However, the relevance of individual policies and the weight to be afforded
them will depend on the activity that is being considered. In this way the
reclamation policies are highly relevant to an assessment of the proposed
reclamation, but the wider infrastructure policies are also relevant to this
Project.
Permitted Activities
25.46 The Board may disregard any adverse effect of an activity if it is a permitted
activity under the relevant plan.557 The discharge of contaminants into air
from earthworks and the construction, maintenance and repair of roads are
permitted activities subject to meeting permitted activity standards.558 The
effects of these activities can therefore be disregarded.
Part 2 of the RMA
Orthodox approach to Part 2
25.47 Until recently, the Courts have taken an "overall broad judgement"
approach in considering applications for resource consent or notices of
requirement, assessing the application against the relevant planning
instruments, and then stepping back to consider the application against the
matters in Part 2. This conventional approach was described by the
556 A consent under the NES for Assessing and Managing Contaminants in Soil to Protect Human Health and a section 89 consent for future works on the reclamation, once it becomes land. 557 Section 104(2) of the RMA. 558 Under both the Auckland Council Regional Plan: Air Land Water, and the AUP (OP).
BF\57040744\1 Page 163
Environment Court in North Shore City Council v Auckland Regional
Council559 in the following way:
The method of applying section 5 then involves an overall broad judgment of whether a proposal would promote the sustainable management of natural and physical resources. That recognises that the Act has a single purpose. Such a judgment allows for comparison of conflicting considerations and the scale or degree of them, and their relative significance or proportion in the final outcome.
25.48 However, in a number of recent cases, the Courts have re-considered how
Part 2 should be applied in decision-making processes under the RMA.
These cases have arisen following the Supreme Court's reasoning in King
Salmon, as to how decision-makers should apply Part 2 of the RMA in a
plan change context.
King Salmon
25.49 The King Salmon decision will be well known to the Board and does not
need to be repeated. For a variety of reasons the Supreme Court found
that it was not necessary for a decision-maker, when determining a plan
change560 in a lower order document, to refer back to Part 2.
25.50 The Court identified three exceptions where decision-makers may need to
refer back to Part 2 – where there is invalidity, incomplete coverage or
uncertainty of meaning in the planning documents.561 In reaching its
findings, the Court expressly rejected the orthodox "overall judgment"
approach in relation to implementation of the NZCPS, finding that the
policies in the NZCPS are essentially "bottom lines".562 However, the extent
to which directive policies in other policy documents should be interpreted
as "bottom lines" is unclear, especially when those documents should be
read as a whole.
Puhoi to Warkworth Board of Inquiry
25.51 Since the Supreme Court's decision, there has been some uncertainty as to
how the findings in King Salmon apply in the context of applications for
resource consent and notices of requirement, and the case law in this area
is currently in a state of flux.
559 [1997] NZRMA 59 (EnvC) at page 46. Derived from the often-cited High Court decision in New Zealand Rail v Marlborough District Council [1994] NZRMA 70 about the open nature of the language of Part 2. 560 Section 67 of the RMA which outlines the factors to consider when preparing a regional plan. 561 [2014] NZSC 38 at [90]. 562 [2014] NZSC 38 at [137].
BF\57040744\1 Page 164
25.52 One of the first cases to consider the findings in King Salmon and how it
might be applied in other RMA decision-making processes was the Board of
Inquiry's decision regarding the Pūhoi to Warkworth Section of Ara Tūhono
– Pūhoi to Wellsford Road of National Significance, which related to both
resource consents and notices of requirement. The Board stated:563
It is well settled law that, in making its determination, the Board is to apply an 'overall broad judgment' to be made having regard to various competing considerations which might arise in any given set of circumstances. The classic enunciation of the proposition is contained in North Shore City Council v Auckland Regional Council, which was affirmed on appeal to the High Court in Green & McCahill Properties Limited v Auckland Regional Council:
…
Dealing, in a s5 context, with NZCPS and the King Salmon judgement, there is still a need to carry out an overall balancing test. The Board accepts the submissions made by counsel in their closing submissions on the application of the King Salmon decision. The judgement remains, along with all the other matters relevant under ss104 and 171, a salutary reminder from New Zealand's superior appellate court on the importance of 'environmental bottom lines' set out in the NZCPS.
Basin Bridge – Notices of Requirement
25.53 The High Court in New Zealand Transport Agency v Architectural Centre
Inc564 (Basin Bridge) considered the implications of King Salmon in the
context of a notice of requirement application (which was heard by the
Board of Inquiry, and subsequently appealed to the High Court on points of
law). The High Court distinguished King Salmon on the basis that
section 171 of the RMA requires a different approach to that taken in a plan
change context. The Court cited the following passage from the Board of
Inquiry's findings:565
Further and perhaps more importantly, as we have already noted, Section 171(1) and the considerations it prescribes are expressed as being subject to Part 2. We accordingly have a specific statutory direction to appropriately consider and apply that part of the Act in making our determination.
25.54 The High Court therefore agreed with the Board of Inquiry's findings that the
context of section 171 requires decision-makers to take a different
approach to that taken by the Supreme Court in King Salmon, with Part 2
563 Final Report and Decision of the Board of Inquiry into the Ara Tuhono – Puhoi to Wellsford Road of National Significance: Puhoi to Warkworth Section, 2 September 2014, at paragraph 133 – 134. 564 [2015] NZHC 1991. 565 New Zealand Transport Agency v Architectural Centre Inc [2015] NZHC 1991 at [118].
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being the focal point of the assessment, as opposed to the planning
instruments.
25.55 The consideration of notices of requirement under section 171 is therefore
subject to the overall broad judgement of Part 2.
RJ Davidson Family Trust
25.56 The findings in King Salmon and Basin Bridge were considered in two
recent decisions involving the same resource consent application,
RJ Davidson Family Trust v Marlborough District Council,566 (Davidson).
The application was initially heard by the Environment Court, which
declined the application. That decision was appealed to the High Court.
25.57 In its decision the Environment Court questioned the accuracy of the
findings in KPF Investments Ltd v Marlborough District Council567 (an earlier
decision regarding resource consent applications) and Basin Bridge as to
the role of Part 2 in decision-making processes. The Environment Court
instead considered that the phrase 'subject to Part 2' does not give a
specific direction to apply Part 2 in all cases, but only in certain
circumstances. The Court noted that:568
We now know, in the light of King Salmon, that it is not merely a 'conflict' which causes the need to apply Part 2. The Supreme Court has made it clear that, absent invalidity, incomplete coverage or uncertainty of meaning in the intervening statutory documents, there is no need to look at Part 2 of the RMA, even in section 104 RMA.
25.58 The Environment Court held that "logically", the King Salmon approach
should apply when applying for resource consent under a district plan, and
there should usually be no need to look at most of Part 2 in considering
these applications.569 The Environment Court then set out a detailed
decision-making framework whereby consideration of Part 2 only arises if
there is a deficiency in the planning instruments. It also commented that
"whether this process can still be called an 'overall broad judgement' is
open to some doubt".570
25.59 That detailed decision making framework involved consideration of a range
of factors under section 104, including an assessment of the proposal
566 [2016] NZEnvC 81 and [2017] NZHC 52. 567 KPF Investments Ltd v Marlborough District Council [2014] NZEnvC 152. 568 [2016] NZEnvC 81 at [259]. 569 Ibid at [260]. 570 Ibid at [263].
BF\57040744\1 Page 166
against the relevant planning documents, the NZCPS and the effects of the
proposal.
25.60 Although not expressed as an overall broad judgement, the approach of the
Environment Court involved the weighing and competing of a range of
different considerations, in a manner very similar to the previous overall
broad judgement Part 2 orthodoxy.
25.61 On appeal, the High Court agreed with the findings of the Environment
Court, stating that the reasoning in King Salmon applies to section 104(1)
because the relevant provisions of the planning documents have already
given substance to the principles in Part 2. Referring to King Salmon, the
Court agreed that reference should only be made to Part 2 where there has
been invalidity, incomplete coverage or uncertainty of meaning within the
planning documents.571 The High Court held:572
I also consider that the Environment Court's decision was consistent with King Salmon and the majority correctly applied it to the different context of s 104. I accept Council's submission that it would be inconsistent with the scheme of the RMA and King Salmon to allow Regional or District Plans to be rendered ineffective by general recourse to Part 2 in deciding resource consent applications.
25.62 In reaching its decision the High Court did not explicitly detail how the
specific reference to Part 2 in section 104 should be treated. There is no
such reference to Part 2 in section 67 of the RMA, the section applied by
the Court in King Salmon.
25.63 The decision of the High Court in Davidson is currently under appeal to the
Court of Appeal.
25.64 The most recent decision to consider these issues is Envirofume v Bay of
Plenty Regional Council,573 which concerned an application for resource
consent. The Environment Court referred to the finding in Davidson that a
resource consent is subject to the King Salmon regarding the application of
Part 2, but ultimately held that:574
We conclude that Part 2 is still relevant to resource consent for the following reasons:
(a) as an overview or check that the purpose of the Act and that Part 2 issues are properly covered and clear;
571 [2017] NZHC 52 at [76]. 572 [2017] NZHC 52 at [77]. 573 [2017] NZEnvC 12. 574 [2017] NZEnvC 12 at [143].
BF\57040744\1 Page 167
(b) to focus the Court or decision makers on the overall purpose of the consent in question; and
(c) as a check that the various documents have recognised, provided for or given effect to the Act and other documents in the Hierarchy.
25.65 Unfortunately the Court did not provide its reasoning for this view, or the
basis on which it distinguished the findings in Davidson.
Application of these cases to this Project
25.66 Given the similarity in wording between sections 104 and 171 of the RMA,
the current High Court position of an 'overall broad judgement' under Part 2
being required when considering a notice of requirement for a designation
(per Basin Bridge), but not required when determining a resource consent,
is difficult to reconcile.
25.67 There has been no case authority that discusses the different approach
between resource consents and designations.
25.68 In our view the Board must have regard to decisions of both the
Environment Court and High Court.575 However, in accordance with
established legal principle, decisions of higher courts will take precedence
over those of lower courts where there is a conflict.
25.69 In light of the uncertainty under the case authority there appears to be two
broad options available to the Board:
(a) Apply an overall broad judgement under Part 2 in relation to the
consideration of the NORs under section 171 but only consider the
resource consent applications under section 104; or
(b) Apply the "exceptions" within the Davidson case, which outline when
recourse to Part 2 is appropriate, on the grounds that the plans have
incomplete coverage as they do not cover a situation of an
integrated proposal for an NOR and resource consents or a
proposal that sits across both district and regional coastal plan
areas. The appropriateness of recourse to Part 2 is reinforced by
the fact that Part 2 provides an integrated decision making
framework across resource consents and notices of requirement.
575 In previous reports the Board of Inquiry has considered itself bound by High Court decisions, as noted in the Final Report and Decision of the Board of Inquiry into the NZTA Waterview Connection Proposal at paragraph 430.
BF\57040744\1 Page 168
25.70 Given the complexity of the Project, the range of effects and the breadth of
plan provisions that are engaged, in practice, the assessment under Part 2
will be very similar to an assessment under section 104 alone. Both
approaches will require a balancing and weighting of relevant factors, with
proper regard to any directive policies and nuances of policy, in the manner
of an overall broad judgement.
25.71 The Transport Agency considers that, regardless of the approach adopted,
the Project can and should be approved.
Dated 27 June 2017
________________________________
Pat Mulligan / Vanessa Evitt / Mathew Gribben Counsel for the NZ Transport Agency
BF\57040744\1 Page 169
Attachment A:
Key components of the Project (Figure 1-1 from the Assessment of Effects on the Environment)
BF\57040744\1 Page 170
Attachment B:
List of the transport agency's witnesses
EIC* Tab
Witness Name Evidence topic Rebuttal Evidence** Tab
1 Mr Brett Gliddon Highway Manager for Auckland and Northland -
2 Mr Scott Wickman New Zealand Transport Agency – Principal Transport Planner
1
3 Mr Noel Nancekivell Design and Construction (including Annexure F: Plan Set 3 Road Alignment)
2
4 Ms Amelia Linzey Engagement 30
5 Ms Amelia Linzey Alternatives 3
6 Mr Chris Bauld Neilson Street Interchange Alternatives Peer Review
-
7 Mr John Williamson Economics 4
8 Mr Don Harrington Property Acquisition 5
9 Mr Andrew Murray Traffic and Transportation 6
10 Mr Andrew Murray Walking and Cycling 6
11 Ms Lynne Hancock Urban Design 7
12 Mr Gavin Lister Landscape and Visual (note Appendix A: Additional photosimulations is contained in Volume 6)
8
13 Mr Darren Wu Construction Traffic Impacts 22
14 Ms Siiri Wilkening Acoustics - Construction 23
15 Ms Siiri Wilkening Acoustics - Traffic 24
16 Ms Jane Matthews Built Heritage 19
17 Dr Matthew Felgate Archaeology -
18 Ms Amelia Linzey Social Impact 31
19 Ms Amelia Linzey Cultural Values Assessment (Engagement) 33
20 Ms Camilla Needham
Air Quality 20
21 Ms Ann Williams Groundwater 12
22 Ms Dale Paice Foreshore Stormwater Design and Flooding Assessment
9
23 Dr Robin Allison Foreshore Stormwater Treatment Design and Stormwater Quality Effects Assessment
10
24 Mr Tony Cain Stormwater treatment design (Sectors 1, 3 – 5) and Erosion and Sediment Control
11
25 Mr Gavin Alexander Geotechnical and Settlement 21
26 Mr Stephen Priestley Coastal Processes 13
27 Dr Ian Smith Geological Heritage Assessment 18
28 Ms Shona Myers Terrestrial Ecology 15
29 Dr Sharon De Luca Marine Ecology 16
30 Dr Leigh Bull Avifauna Ecology 17
31 Mr Edward Sides Freshwater Ecology -
32 Dr Murray Wallis Contaminated Land 29
33 Ms Lesley Hopkins Planning – Effects and Conditions 35
34 Ms Andrea Rickard Statutory Planning 36
- Mr Wijnand Udema Marine Sediments 14
- Mr Simon Paykel Stratex – Asbestos 25
- Mr David Baird Architecture 26
- Mr Norbert Schaeffoener
Risk Analysis 27
- Mr Bill Heaps Electricity 28
- Mr Phil Osbourne Business Disruption 32
- Mr Eynon Delamere Mana Whenua Engagement 34 *Order as per Index to Applicant's evidence in chief folder **Order as per Index to Applicant's rebuttal evidence folder
BF\57040744\1 Page 171
Attachment C:
Minister's reasons for referral to this board
Ministerial Direction to refer the East West Link proposal to a board of inquiry576
Having considered all the relevant factors, we consider that the two notices of requirement and
23 resource consents lodged by the New Zealand Transport Agency (NZTA) relating to the
construction, operation and maintenance of the East West Link ('the matters') are a proposal of
national significance. Under section 147 of the Resource Management Act 1991 (RMA), we
direct that the matters be referred to a board of inquiry for consideration and decision. Our
reasons are as follows:
National Significance
We consider the matters are a proposal of national significance because the proposal:
Involves significant use of natural and physical resources (including approximately 18.3
hectares of reclamation of the Māngere Inlet), to construct much of the proposed four lane
arterial road linking State Highways 1 and 20.
Is likely to result in and contribute to irreversible changes to the environment, in particular
the loss of bird feeding areas in the Māngere Inlet; changes to coastal processes by re-
contouring, and addressing legacy ground water contamination issues by effectively
'bunding' the northern shoreline of the Māngere Inlet.
Includes relocating regionally and nationally important infrastructure, including electricity,
gas, and crossing over bulk water supply.
Has, and is likely to continue to, arouse widespread public concern or interest regarding
actual or likely effects on the environment.
Relates to an area that may be of national interest to Māori and a number of sites in and
around the proposal area as classified as outstanding natural features within the Auckland
Unitary Plan.
Would assist the Crown in fulfilling its public health, welfare, security and safety
obligations or functions.
Relates to a network utility operation (the state highway network) that when viewed in its
wider geographic context extends to more than one district or region)
Referral to a board of inquiry
We refer the matters to be decided by a board of inquiry because:
576 http://www.epa.govt.nz/Publications/EWL_Ministerial_Direction_February.pdf
BF\57040744\1 Page 172
The board of inquiry process will provide certainty around timing for a decision on the
proposal.
The board of inquiry process provides for a comprehensive assessment of the resource
consents and notices of requirement within a streamlined process, while ensuring the
public has an opportunity to have their views considered in front of a panel of decision
makers skilled in evaluating applications of this scale.
In reaching our conclusion, we considered:
The Environmental Protection Authority's recommendation that we refer the matters to a
board of inquiry.
The views of the NZTA and the relevant local authority, Auckland Council, and the
capacity of Auckland Council to process the matters.
Dated at Wellington this 8th day of February 2017
Hon Dr Nick Smith
Minister for the Environment
Hon Maggie Barry
Minister of Conservation
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Attachment D:
Proposed management plan structure
BF\57040744\1 Page 174
Attachment E:
AUP(OP) reclamation objectives and policies
F2.2. Drainage, reclamation and declamation
F2.2.1. Background
Large areas of Auckland’s coast have been reclaimed and/or drained in the past. This has
enabled a range of activities including the development of the port and airport, provision of land
areas adjacent to marinas, construction of roads and creation of farmland.
Reclamation and drainage in the coastal marine area may sometimes be necessary to enable
activities that have a functional or operational need to locate on the coast and to provide for
infrastructure, marine related activities and social benefits such as maintaining or enhancing
public access. However, reclamation and drainage can have significant and often irreversible
adverse effects on natural character, coastal processes, habitats and ecosystems, Mana
Whenua values and public access. Declamation of land can have adverse effects on natural
character, water quality, ecological values and coastal processes. The adverse effects from
declamation, if undertaken in an appropriate location and at an appropriate scale, may be offset
by the enhanced public access and social and economic opportunities provided by extending
water access.
F2.2.2. Objectives [rcp]
(1) The adverse environmental effects of reclamation, drainage or declamation on the
coastal marine area are avoided, remedied, or mitigated.
(2) The natural character, ecological values and natural coastal processes of the coastal
marine area are not adversely affected by inappropriate reclamation, drainage or
declamation.
(3) Public access, amenity and Mana Whenua values are not adversely affected by
inappropriate reclamation, drainage or declamation.
F2.2.3. Policies [rcp]
(1) Avoid reclamation and drainage in the coastal marine area except where all of the
following apply:
(a) the reclamation will provide significant regional or national benefit;
(b) there are no practicable alternative ways of providing for the activity, including
locating it on land outside the coastal marine area;
(c) efficient use will be made of the coastal marine area by using the minimum area
necessary to provide for the proposed use, or to enable drainage.
BF\57040744\1 Page 175
(2) Where reclamation or drainage is proposed that affects an overlay, manage effects in
accordance with the overlay policies.
(3) Provide for reclamation and works that are necessary to carry out any of the following:
(a) maintain or repair a reclamation;
(b) enable the repair and upgrade of existing reclamations and seawalls, by way of
minor reclamation;
(c) carry out rehabilitation or remedial works;
(d) maintain or enhance public access or linkages with public open space to, within
or adjacent to the coastal marine area;
(e) enable the construction and/or efficient operation of infrastructure, including but
not limited to, ports, airports, roads, pipelines, electricity transmission, railways,
ferry terminals, and electricity generation; or
(f) create or enhance habitat for indigenous species where degraded areas of the
coastal environment require restoration or rehabilitation.
(4) Enable lawfully established drainage channels to continue to manage their risk of
flooding or coastal inundation.
(5) Require proposals for reclamation to mitigate effects through the form and design of
reclamation as far as practicable, taking into account the following:
(a) the shape of the reclamation, and the extent to which the materials used are
visually compatible with the adjoining coast; and
(b) the ability to avoid consequential changes to coastal processes, including
erosion and accretion.
(6) Consider where the adverse effects of drainage or reclamation cannot be completely
avoided, remediated or mitigated on site, compensating for those adverse effects by
additional or enhanced public access or public facilities or environmental enhancement
or restoration.
(7) Require the design of reclamations to take into account the potential effects of climate
change, including sea level rise, over 100 years.
(8) Maintain and where possible enhance public access to and along the coastal marine
area to the extent practicable in providing for reclamation, declamation and drainage,
having regard to all of the following:
(a) the purpose and proposed use of the area;
BF\57040744\1 Page 176
(b) whether a restriction on public access is necessary for public health, safety or
operational reasons; and
(c) the ability to remedy or mitigate any loss of public access.
(9) Require an esplanade reserve or strip to be included on reclaimed or drained areas of
the coastal marine area, unless a restriction on public access is provided for under
B8.4.2(3) in B8.4 Public access and open space.
(10) Enable the beneficial use of dredged material in reclamations, including where stabilised
with cement.
(11) Avoid using contaminated materials in reclamation, unless any contaminants are
contained in a way that avoids, remedies or mitigates other adverse effects on water
quality, aquatic ecosystems and indigenous biodiversity in the coastal marine area.
(12) Assess whether authorising past unlawful reclamation or drainage in the coastal marine
area is appropriate having regard to all of the following:
(a) the extent of social or economic benefit provided to the public, including whether
it is necessary to enable the operation of infrastructure;
(b) whether there will be more significant adverse effects resulting from the works
required to restore the area than from retaining the reclamation or drained area;
and
(c) the extent to which the removal of the reclamation or reinstatement of the drained
area is practicable.
(13) Enable the declamation of reclaimed land where it would achieve any of the following:
(a) restore the natural character and resources of the coastal marine area;
(b) provide for better public access or greater open water space;
(c) provide for the efficient operation of nationally and regionally significant
infrastructure; or
(d) provide for management of coastal hazards, including managed retreat and
erosion management.