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PROPOSED KĀPITI COAST DISTRICT PLAN 2012 CHAPTER 3 HEARING ___________________________________________________________________
SUPPLEMENTARY EVIDENCE AND SUBMISSIONS OF JOAN ALLIN ___________________________________________________________________ 1. This document relates to the Chapter 3 hearing and is supplementary to my
evidence and submissions (including supplementary evidence and submissions and the oral interpolations document) already lodged. Those documents include a number of comments relevant to Chapter 3 and I refer you to those documents
2. I am grateful to the Panel, and would like to thank you, for directing that a s
42A report be prepared to address:
“how the PDP provisions relating to the ‘coastal resource’ fit together, including the relationship of those provisions with the extant Operative District Plan provisions relating to coastal hazard management.”
3. However, there are numerous problematic aspects of the report that has been
provided, including:
a. errors of law; b. incomplete and inappropriate ODP provisions; c. inconsistent wording in relation to critical matters; d. lack of clarity as to what is to be dealt with in the ODP, particularly in
relation to structures.
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4. I (and others) have been asking KCDC for what provisions would remain in force in the ODP since at least November 2015, to no avail.
5. The Panel will be aware of the confusion and frustration of submitters at
Hearing 1 as to what was to be dealt with where and the moveable feast of conflicting information being conveyed to submitters in s 42A reports and orally by the Council officer at the hearing.
6. Minute 5, issuing the direction to provide information, is dated 7 April 2016. 7. At the meeting with KCDC on 4 February 20161, the need for detailed and
immediate information as to what was to remain in force in the ODP was emphasised.
8. The Minutes record (underlining added):
“JA [Joan Allin], KM [Katharine Moody] & CR [Christopher Ruthe] expressed concern that submitters cannot participate effectively in the hearing without knowing what Operative Plan provisions will remain in force, what they say, what they apply to, how they relate to PDP provisions, and on what legal basis they are to remain in force, given that the RMA provides for 1 district plan. Requested that specifics on these matters are identified and communicated with submitters now. This is most important.”
9. In response to circulated draft Minutes, we said that the Minutes should
record that the material would be provided as soon as possible and, at the very latest, in the s 42A report for hearing 1. The response from the Council officer was:
“Attached are the final notes and actions. The suggested changes have been accepted except I have changed the highlighted action below to clarify our position that we will provide our current information on the enduring coastal hazard provisions in the Operative District Plan and then provide further information/clarification through the PDP integration work and relevant chapters at hearings. Happy to discuss Regards Council staff to provide as soon as possible and, at the very latest, in the section 42A report for hearing 1 information on the enduring coastal hazard provisions in the Operative District Plan and consider as part of the integration work on the PDP and the hearings process. This will include what Operative District Plan provisions will remain in force, what they say, what they apply to, how they relate to PDP provisions, on what legal basis they are to remain in force (given that the RMA provides for 1 district plan), and how any such enduring coastal hazard provisions in the Operative District Plan are to be conveyed to users of the PDP once it becomes operative.”
10. In fact, nothing further was provided to us.
1Referred to in my earlier Evidence and Submissions.
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11. If KCDC’s position has been clear since July 20142 that:
a. a plan change was to be prepared (not a variation as the Allan/Fowler recommended one month earlier in June 2014); and that
b. ODP provisions would remain in force (and there would be no
variation)
then there is no excuse for not having complete, accurate and legally-correct information as to the ODP provisions to remain in force by now - a full 2 years later.
12. And yet here we are, at the first of the ring-fenced coastal hearings, with an
incomplete draft of what ODP provisions are to remain in force, including provisions that misrepresent the ODP.
13. In my opinion, the position in which submitters find themselves on this
seemingly never-ending, and increasingly confusing, voyage of discovery is unreasonable and unfair.
14. Instead of being able to focus attention on the actual chapters of the PDP that
are being addressed and the precise wording of the marked-up chapters, much time is being wasted dealing with matters that should have been sorted out by KCDC before deciding that the PDP was ready for hearings.
15. I am overseas and at a significant disadvantage in terms of considering the
relevant documentation and providing evidence and submissions. 16. KCDC’s failure to provide relevant information and to comply with the
Allan/Fowler report in terms of providing s 42A reports a reasonable time before the initial commencement of all the PDP hearings has disadvantaged all submitters, including myself.
17. I am also not in a position to check this document so it seems inevitable that
there will be errors, for which I apologise in advance. 18. In addition, I have suggested specific wording for a number of provisions, but
I do not have all of my source materials. I therefore reserve all of my rights, including the right to appeal, in relation to wording that I have suggested.
19. In this supplementary evidence and submissions, I address:
a. Part 1 - Legal issues; b. Part 2 - Chapter 3 matters; c. Part 3 - Some examples of problematic integration matters arising
from the s 42A Coastal Overview report. 20. To assist the Panel to distinguish explanation from what I am asking the
Panel to do, I have tried to highlight the latter in yellow highlight and italics at the end of each section in the rest of this document.
2As I understand KCDC asserts.
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PART 1 - LEGAL ISSUES Correct legal framework 21. It is important that the Panel applies the correct legal framework and gives
the appropriate weight and status to relevant documents. 22. At para 23, the s 42A Coastal Overview report says (italics added):
“The Act requires the NZ Coastal Policy Statement to set a specific framework for coastal management issues, including a specific requirement to consider natural hazards and address risk management. The Act requires the Regional Policy Statement and Regional Coastal Plan to develop the NZCPS themes at a regional level. The Act requires the District Plan to give effect to those higher order documents, having regard to specific issues in the District.”
23. At para 44, that same report says:
“The Council must also give effect to the Regional Policy Statement and regional plans, which also deal with natural hazards.”
24. In terms of what must be given effect to, those statements are legally
incorrect. 25. The district plan must give effect to the NZCPS and the RPS, not any regional
plan (or proposed regional plan). 26. The RMA requires a district plan to:
a. give effect to the NZCPS and the RPS3; b. not be inconsistent with a regional plan ie an operative4 regional plan
for any matter specified in s 30(1) of the RMA5;
c. have regard to a proposed regional plan in regard to any matter of regional significance or for which the regional council has primary responsibility under Part 46.
27. So, the district plan must give effect to both the NZCPS and the RPS. 28. The s 42A Coastal Overview report provides little, if any, assistance in terms
of giving effect to the RPS. There are sections in the report on the NZCPS and the PNRP, but not the RPS.
29. In addition, the PNRP is well down the chain in terms of what should be given
status in developing the PDP and the weight that should be given to the
3Section 75(3)(b) and (c).4See the definition of regional plan in s 43AA.5Section 75(4)(b).6Section 74(2)(a)(ii).
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various documents, which is not surprising given that the document is a proposed document. The weight to be given to such a document varies according to the stage the document has reached.
30. The s 42A report refers extensively to the PNRP. But the PNRP is a
proposed document at the early stage of development ie submissions and further submissions have closed but there have been no hearings and no decisions.
31. The report refers to a problematic provision that KCDC’s submission on the
PNRP supported. But the report makes no reference to other submissions on the PNRP. Rob Crozier and I made a submission on the PNRP opposing the whole PNRP. Our submission addresses a wide range of problematic aspects of the PNRP, including matters referred to in the s 42A Coastal Overview report.
32. CRU has also made a submission on the PNRP. 33. Therefore considerable care needs to be taken in regard to PNRP provisions
as they may change. I attach as Appendix 1 the attachment to Rob’s and my submission on GWRC’s PNRP.
34. The Panel needs to apply the correct legal framework (not that incorrectly
asserted in the s 42A Coastal Overview report) and give the appropriate weight and status to relevant documents.
35. The PDP needs to:
a. give effect to the NZCPS and the RPS;
b. not be inconsistent with an operative regional plan for any matter specified in s 30(1) of the RMA;
c. have regard to a proposed regional plan in regard to any matter of
regional significance or for which the regional council has primary responsibility under Part 4 of the RMA. As the PNRP is at an early stage with submissions having been lodged but no hearings or decisions issued, considerable care needs to be taken in having regard to PNRP provisions as they may change.
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Beds of rivers and lakes 36. It seems that at least some s 42A authors7 may be under the impression that
only the Regional Council has jurisdiction over beds of rivers and lakes and that the PDP does not apply to that land.
37. Section 13(4) of the RMA states:
“(4) Nothing in this section limits section 9.” 38. Section 9 deals with restrictions on the use of land. 39. Land is defined in s 2 of the RMA as including land covered by water:
“land— (a) includes land covered by water and the airspace above land; …”.
40. Consequently, both the district council and the regional council have jurisdiction over land that is also the bed of a river or lake.
41. My opinion is that land in the beds of rivers and lakes is covered not only by s
13 but also by s 9 of the RMA and therefore the PDP. If a variation is not to be progressed, are there obligations on the Council? 42. It seems to me that:
a. the RMA provides for what should occur when a full review changes to a partial review, as has occurred here when the coastal hazard provisions were withdrawn and a variation is not to be progressed;
b. s 79(3) or s79(7) apply; c. KCDC should have notified the ODP provisions that it says are to
remain in force ie the provisions not being reviewed; and
d. that would have enabled submissions to be made on those provisions. 43. In that way, the RMA:
a. provides a solution to the highly unsatisfactory situation in which submitters find themselves in trying to ascertain what provisions in the ODP remain in force and continuing to be lumbered with provisions that are long overdue for consideration;
b. gives people an opportunity to submit on the provisions to remain in
force and appeal to the Environment Court; and c. enables the provisions to be addressed in an integrated and
coordinated manner. 7See especially the notes recommended to be added to various rules in the Chapter 9 mark-up as well as the recommended change to Rule 9B.1.8 but also see para 74 of the Coastal Overview report.
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44. It seems to me that, in the circumstances of this case, there are legal
obligations that KCDC has not fulfilled. 45. In any event, providing incomplete and inappropriate draft ODP provisions
that are to remain in force (as has occurred with the s 42A Coastal Overview report) is unacceptable. Final, complete, and legally-appropriate provisions need to be provided to enable a fair process.
PART 2 - CHAPTER 3 MATTERS 46. In this Part, I deal with Chapter 3 matters. Text under the heading “Chapter structure” 47. In the text under the heading “Chapter structure”, there are issues relating to
the description of
a. areas of high natural character at e); and b. indigenous vegetation at the second d).
a Areas of high natural character 48. I notice that changes have been recommended to outstanding natural
features and landscapes and significant amenity landscapes to be consistent with the RPS.
49. However, no change has been recommended to the description of areas of
high natural character to make that description consistent with the RPS. 50. As noted in my evidence and submissions for all hearings lodged at the
beginning of the process, Policy 3 of the RPS deals with areas of high natural character.
51. To give effect to Policy 3 of the RPS, the wording of e) should be revised as
follows:
e) Areas of high natural character - mapped areas within the coastal environment where the landscape is slightly modified or unmodified, the land-cover is dominated by indigenous vegetation and/or the vegetation cover is natural and there are no apparent buildings, structures or infrastructure which in some cases overlap with either ecological sites or outstanding natural landscapes or significant special amenity landscapes
52. The areas of high natural character that have been identified in the PDP then
need to be reconsidered so that those that do not meet the description are removed from the PDP.
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b Indigenous vegetation description 53. The description of indigenous vegetation at the second d) is inconsistent with
the recommended definition of indigenous vegetation in failing to refer to the vegetation not having been planted by humans.
54. Para 485 of the s 42A report says that the definition of indigenous vegetation
in the urban tree variation is (italics added):
“vegetation or plant species, including trees, that have established naturally within the Kapiti Coast District and excludes vegetation planted by humans”.
55. That definition is imprecise by referring to “vegetation or plant species,
including trees” at the beginning but only to “vegetation” at the end. 56. In the description of indigenous vegetation at the second d) under the
heading Chapter structure in Chapter 3 add:
“but excludes vegetation and plant species, including trees, planted by humans”.
57. Ensure that the definition of indigenous vegetation excludes vegetation and
plant species, including trees, planted by humans so that there is no confusion as to what is meant by “vegetation” at the end of the recommended definition.
Areas of high natural character, ecological sites, 20 m of cma and other “protection” matters 58. I have addressed issues relating to identification of areas of high natural in
my earlier evidence and submissions (lodged at the beginning of the process) under the Chapter 3 heading. However, my comments relate to high natural character along the coast rather than in other areas, so those comments are relevant to Chapter 4, not Chapter 3.
59. The interactions between Chapters 3 and 4 are critical in this regard as
Chapter 4 inappropriately identifies areas of high natural character in places where such areas should not be so identified. The consequence is that rules in Chapter 3 inappropriately restrict activities in those areas.
60. In terms of Chapter 3, areas of high natural character or outstanding natural
character that run along the entire Kapiti coast are relevant considerations in because of the Chapter 3 rules that restrict activities in those areas eg earthworks.
61. The PDP has also introduced an ecological site for the gravel dunes at Te
Horo but which also covers the Mangaone Stream (which is not a gravel dune) and its mouth.
62. Earthworks rules or restrictions within 20 m of the coastal marine would
prevent river and stream clearance of the Mangaone Stream at Te Horo from being a permitted activity.
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63. As I said to the Panel when I appeared for the General/Plan-wide hearing, river and stream mouth clearance needs to be permitted not only for flood purposes but also for coastal erosion purposes. The regional documents distinguish between the two.
64. River and stream clearance activities (eg earthworks, vegetation clearance)
need to be permitted activities not only for flooding purposes but also for coastal erosion purposes.
65. It is important that:
a. suitable provision is made to exempt activities from relevant rules, where appropriate; and
b. areas of high natural character, ecological sites etc are identified
appropriately and not excessively. Dominant ridgelines and dominant dunes - the definition, Policy 3.21, Policy 3.23, Rule 3A.1.8 (and any other relevant provisions) 66. I have addressed dominant ridgelines and dominant dunes in my earlier
evidence and submissions under the Chapter 3 heading and do not repeat what I said there.
67. The recommended definition of dominant ridgelines and dominant dunes in
the relevant s 42A report is inappropriate. 68. The definition is too vague and uncertain and will lead to disputes, particularly
in relation to what are or are not dominant dunes. 69. It is inappropriate that KCDC has chosen to move away from the PDP
approach of mapping dominant dunes (which did not include, for example, the area along the coast where houses are located) to such an imprecise and ambiguous definition.
70. The definition is particularly egregious in relation to dunes in saying:
“dunes that are highly visible from the surrounding area”. 71. That could include an enormous number of dunes that should not be included
in provisions addressing dominant dunes. 72. What is meant by “the surrounding area”? 73. If a dune is highly visible from one side of the dune, is it a dominant dune? A
couple of sides of the dune? All sides of the dune? 74. Have the dunes along the coast on which houses in the Living Zone are built
suddenly become dominant dunes? 75. Even if it is taken to mean all sides of a dune, if you come to the Te Horo area
with its open vistas, there are purported “dominant dunes” everywhere. 76. That is not an appropriate way to define dominant dunes.
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77. In my opinion, the imprecise definition also gives inappropriate power and discretion to Council officers who will be providing “information” to people as to what is a dominant dune or, for delegated authority, making decisions about what are dominant dunes.
78. The PDP needs to be clear and unambigous as to what is a dominant dune
and what is not. 79. The original definition, in which the areas would be shown on a structure plan
or mapped did that. The recommended change does not and is not acceptable.
80. I express no opinion about dominant ridgelines as that does not affect us but
dominant dunes need to be mapped (as the definition in the PDP stated) or all references other than to a structure plan should be deleted.
81. The s 42A report says (para 684):
“I recognise, however, that identifying dominant ridgelines and dominant dunes on the PDP maps was intended to provide greater clarity and certainty for Plan users. I therefore suggest that, if policies and rules relating to dominant ridgelines and dominant dunes are retained in the PDP, as recommended, the Council should consider undertaking a robust and defendable assessment of dominant ridgelines and dominant dunes in the District, in consultation with the community, and initiate a change/variation to the District Plan to identify them on the Planning Maps, as soon as possible.”
82. With the greatest respect, that is not an appropriate solution. 83. That has the incentive the wrong way around. Those affected have no ability
to influence when or if any variation or change is to occur. 84. If the matter is to be fixed by a variation or change, the incentive needs to be
the other way around. 85. The provisions should be removed and KCDC can undertake the required
work and then progress a variation or change to include appropriate provisions. That provides the incentive to progress a variation or change in the correct place ie with KCDC if dominant dunes are important.
86. In my opinion, it is unacceptable to put inappropriate provisions into the PDP
in the hope that KCDC might undertake further work and progress a variation or change.
87. Furthermore, in terms of the definition of dominant dunes, Policy 3.23 as
notified included8 (italics added):
“retain the integrity of sensitive natural features, dominant ridgelines and dominant dunes as undeveloped features”.
8I know the s 42A report recommends amendments, but the point here is about dominant dunes being undeveloped features.
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88. That element of the dominant ridgelines and dominant dunes being undeveloped features is missing from the definition and that is a serious omission. The context is lost because the explanation in Policy 3.23 is to be deleted.
89. The dominant ridgelines and dunes are those that have not been developed
ie not those along the coast on which houses have been built. 90. All provisions relating to dominant dunes should be removed from the PDP -
the definition, Policy 3.21, Policy 3.23, Rule 3A.1.8 (and any other relevant provisions).
91. If KCDC wishes to include provisions about dominant dunes, it should do
proper research and then notify a variation or plan change. The incentive to do a variation or change needs to rest with KCDC.
92. The recommended definition should not remain but, if it does, it needs to
include that dominant dunes are dunes that are undeveloped and not in the Living Zones.
Policy 3.8 93. The recommended changes to this policy are not appropriate and dealing
with such recommended changes only in the Chapter 3 hearing is unfair. 94. The recommended words of the policy seek to:
“Ensure that actual or potential cumulative effects of further subdivision, use and development do not compromise the objectives and policies of Chapter 3 (Natural Environment) and Chapter 4 (Coastal Environment).”
95. “Ensure" is a strong and absolute word. 96. This a good example of the problem for coastal submitters of “protection”
provisions “ensuring” certain things being “locked in” in the PDP with coastal hazard mitigation policies being omitted from the PDP, with those relevant to buildings left to the ODP.
97. And with a number of coastal submitters having no standing to address the
problem. 98. The recommended wording gives inappropriate supremacy to the “protection”
aspects of Chapters 3 and 4 at the expense of the hazard mitigation aspects of Chapter 9 and Chapter 8 (and any resulting change to the plan to deal with coastal hazard matters).
99. The recommended wording also gives inappropriate supremacy over eg the
Chapter 5 Living and Chapter 7 Rural provisions. 100. Furthermore, the recommended wording extends the policy beyond the areas
specified in the policy as notified and purports to have it apply to all areas across the district.
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101. Para 35 of the s 42A Coastal Overview report says:
“The Hazards [Chapter 9] and Natural Environment chapters [Chapters 3] are functionally on a par. In my opinion, the rules of those chapters need to allow for a balanced consideration of risk mitigation versus impacts on the natural environment, if that is ever an issue in the context of a resource consent application. Allowing that consideration is consistent with a tension that already exists in the overriding purpose of the Act. That is, enabling the community’s health and safety, while sustaining and safeguarding natural resources.”
102. I agree with the general thrust of the comments, but I would add that in terms of providing for a balanced consideration of risk mitigation versus impacts on the natural environment, it is not only the rules that need to be appropriate but also the objectives and policies.
103. The objectives and policies are what will be looked to in any consent
application. 104. The policy as recommended does not enable balanced consideration and, in
my opinion, it is not an appropriately-worded policy. 105. It is unfair to Chapter 4 submitters (and indeed submitters on other chapters)
for this policy wording to occur in the Chapter 3 hearing, without any opportunity for submitters in other affected chapters to comment on it.
106. The unfairness is particularly acute for Chapter 4 (or other) submitters who do
not have standing in relation to Chapter 3. 107. They may not know about the recommended changes and, even if they did,
would have no ability to give evidence about the recommended changes or appeal to the Environment Court.
108. Revise the policy to provide appropriate balance with all of the other
provisions of the PDP (eg Chapters 5, 7, 8 and 9) as well as hazard mitigation activities and focus it on the relevant areas.
109. Remove reference to “Ensure” and include instead the concept of avoiding,
remedying or mitigating. Policy 3.13 110. This policy refers, among other things, to ecological sites. 111. As already noted, the Mangaone Stream itself and the migrating mouth of the
stream are included in an ecological site (K231). 112. The ecological site relates to the gravel dunes and the associated flora and
fauna. However, the stream is a stream, not a gravel dune. In addition, the migrating mouth of the stream disturbs the nearby gravel dunes on a regular basis.
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113. “Development” in the PDP is a widely-defined term but is not shown in italics on the composite mark-up of Chapter 3. The definition in the PDP includes any land disturbance. I do not know if there are any recommended changes to the definition or not.
114. The word “significant” is recommended to be removed. 115. So this policy would apply to river and stream clearance activities (including
for coastal erosion purposes) at the mouth of the Mangaone Stream, because the migrating mouth has been identified as an ecological site.
116. The policy as recommended is inappropriate to such activities and indeed is
inappropriate to the wide range of activities that come within the definition of “Development”.
117. Retain the reference to “significant” and remove the ecological site notation
from the migrating river mouth of the Mangaone Stream (detailed in relation to Site K231 below).
Policy 3.14 118. This policy is a good example of the inappropriate partial withdrawal of
provisions by KCDC. 119. As set out in the PDP showing provisions withdrawn9, Policy 3.14 reads:
“Policy 3.14 - Restoration
When considering applications for subdivision, land use or development, active restoration or remediation will be required on sites identified as priority areas for restoration, to [10] achieve the following biodiversity benefits:
a) resilient riparian buffers and margins which provide benefits in terms of sediment and erosion control and increased biodiversity values; and
b) expanded ecological sites and habitat enhancement which provide greater benefits to biodiversity values through the planting of locally indigenous vegetation surrounding and linking fragmented remnant ecological sites.”
120. As can be seen from the words that are struck through, Policy 3.14 as notified
only applied to priority areas for restoration. Priority areas for restoration have been withdrawn from the PDP and are no longer identified on the maps.
9see http://www.kapiticoast.govt.nz/contentassets/839d7ade949e4dc3acf14fb3c3f05251/chapter03-natural-environment.pdf.10Green strikethrough in the PDP with provisions withdrawn version indicates a priority areas for restoration strikethrough.
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121. When withdrawing provisions from the PDP, KCDC has withdrawn the reference to the restoration being “required on sites identified as priority areas for restoration” but otherwise has left the provision intact so that the policy purports to apply everywhere.
122. The result is that the withdrawal was inappropriate as it has inappropriately
affected the meaning of the policy that remains (see West Coast Regional Council v Royal Forest and Bird Protection Society [2007] NZRMA 32).
123. I agree that Policy 3.14 should be removed. Policy 3.19 124. Given that special amenity landscapes run along the coast, this is another
policy that locks in “protection” with the ability to balance this against coastal hazard mitigation activities absent from the PDP11. The values of the special amenity landscapes are to be maintained and enhanced without appropriate objectives and policies in the PDP dealing with hazard mitigation activities.
125. That is not integrated management. 126. While there are objectives and policies in the ODP about hazard mitigation,
the ODP is dealing with buildings. 127. There is little, for example, in the PDP in terms of policies to support:
a. river and stream clearance activities for coastal erosion purposes (the relevant rules in Chapter 9 relate to flooding not coastal erosion);
b. coastal hazard mitigation activities not involving buildings (or
structures) eg various soft engineering solutions that will continue to be dealt with in the PDP, not the ODP.
128. Reconsider the wording of this policy to enable the appropriate balancing to
occur in consent applications or create a new policy either in this chapter or elsewhere to achieve that.
129. Change “maintains and enhances” to the concept of avoiding, remedying or
mitigating. Policy 3.21 130. For the reasons referred to above under the heading “Dominant ridgelines
and dominant dunes - the definition, Policy 3.21, Policy 3.23, Rule 3A.1.8 (and any other related provisions)”, the reference to dominant dunes should be removed.
131. Remove the reference to dominant dunes.
11Subject to whatever the policies in Chapter 9 are supposed to be dealing with, which I will address in relation to the Chapter 9 hearing.
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Policy 3.22 132. We are generally content with the recommended changes to Policy 3.22 but
our submission on Policy 3.22 does not seem to have been referred to (see our second submission pages 1-4 which dealt with Policy 3.22 among other things).
Policy 3.23 133. Our submission on Policy 3.23 does not seem to have been referred to (see
our second submission pages 1-4 which dealt with Policy 3.23 among other things).
134. We are not content with the recommended changes to Policy 3.23 in relation
to:
a. removing (a) and the reference to the areas being “undeveloped features” and the loss of the policy context in the Explanation;
b. the wording about protecting the values of outstanding natural
features and landscapes, areas of outstanding natural character and areas of high natural character; and
c. the reference to dominant ridgelines and dominant dunes.
135. In relation to the first matter, quite a lot of the policy context of Policy 3.23 has
been lost in the recommendation to delete (a):
a. as notified, the policy refers to the areas eg sensitive natural features (which includes areas of high natural character) and dominant dunes as being “undeveloped features”. That is an important policy context that would provide guidance to a decision-maker in a consent hearing if the feature is not in fact an undeveloped feature but has nevertheless been included in a supposed special area;
b. the reference to the areas being “undeveloped features” provides
policy guidance that anything identified eg as an area of high natural character or a dominant dune should be an undeveloped feature (not what is currently identified in the PDP).
136. Policy context has also been lost by the removal of the Explanation. 137. The effect of losing the policy context and the recommended changes to the
policy is that it has become increasingly absolute. 138. In relation to the second matter (ie the wording about protecting the values of
outstanding natural features and landscapes, areas of outstanding natural character and areas of high natural character), the recommendation is that earthworks will be sympathetically located and of a scale that (underlining added):
“protects the values of outstanding natural features and landscapes, areas of outstanding natural character and areas of high natural character”.
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139. Sections 6(a) and (b) of the RMA refer to (underlining added):
(a) the preservation of the natural character of the coastal environment (including the coastal marine area), wetlands, and lakes and rivers and their margins, and the protection of them from inappropriate subdivision, use, and development:
(b) the protection of outstanding natural features and landscapes from
inappropriate subdivision, use, and development. 140. Those sections do not provide for protection without qualification. The
protection is from inappropriate subdivision, use, and development. 141. The problem with much of the PDP is that focus has been on protection as a
goal in itself without sufficient attention to the appropriate provisions in the RMA.
142. There has been a failure to focus on the fact eg that in s 6(a) and (b), it is not
unqualified protection but protection from inappropriate subdivision, use and development.
143. There has also been inadequate attention on enabling people and
communities to provide for their social, economic and cultural well-being and for their health and safety under s 5.
144. What is inappropriate subdivision, use and development needs to be able to
be considered in an appropriate policy framework, without protection policies being overly protective or failing to convey the RMA context of the protection.
145. Decision-makers need to have appropriately-framed objectives and policies to
enable them to consider all relevant factors and make decisions that are appropriate in the circumstances.
146. An activity may interfere with the “values” of an area but still be appropriate
subdivision, use and development so be in accordance with ss 6(a) and (b) of the RMA.
147. In my opinion, it is important for the policy to convey the correct legal context. 148. The policy as recommended seeks to protect the values of areas of high
natural character (rather than just outstanding areas). 149. Areas of high natural character and outstanding natural character run the full
length of the coast. Areas of supposed high natural character are, in some areas, adjacent to seawalls or other coastal protection mechanisms. They also run all along the coast where houses exist landward or nearby in Living Zones. Areas of high natural character in the PDP have been inappropriately identified in my opinion. They do not give effect to the RPS.
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150. If areas of high natural character in the coastal environment are appropriately reduced in the PDP so that they are properly identified and give effect to the RPS, then a suggested revision is:
“protects the values of outstanding natural features and landscapes, areas of outstanding natural character and areas of high natural character from inappropriate subdivision, use and development”.
151. In relation to dominant ridgelines and dominant dunes component of the
policy, I refer you to the discussion above under the heading Dominant ridgelines and dominant dunes - the definition, Policy 3.21, Policy 3.23, Rule 3A.1.8 (and any other related provisions)”. All references to dominant dunes should be removed.
152. In relation to special amenity landscapes, change “maintains or enhances” to
“avoids, remedies or mitigates effect on”. Problem with how the Chapter 3: Natural Environment (Ecological Site / Indigenous Vegetation Component) s 42A report deals with our submission re rivers and streams 153. There is a problem with the way in which the Chapter 3: Natural Environment
(Ecological Site / Indigenous Vegetation Component) s 42A report deals with our submission in terms of:
a. river and stream mouth clearance; and b. weed clearance further upstream.
154. Section 3.8.2 of that s 42A report deals with “Concerns with restrictions on
Natural Hazard Mitigation”. Section 3.8.2.1 refers to “Matters Raised by Submitters”.
155. In terms of river and stream clearance activities being a permitted activity and
removing any zoning or overlays that would require the activities to obtain resource consent, para 371 refers only to the submission of Gordon and Sylvia Moller and a further submission.
156. The only reference to our submission seems to be in para 372 where that s
42A report states that our submission sought:
“… where rules refer to "development", including Rule 3A.4.5, ensure that such rules do not restrict river and stream clearance permitted activities.”
157. That understates and misrepresents what our submission sought in relation to
river and stream clearance activities. 158. Our first submission had an entire section devoted to river and stream
clearance activities (see pages 11-12 of our first submission) including not only:
a. river and stream mouth clearance; but also b. weed clearance further upstream away from the mouth.
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159. The wording of the relief sought covered both. 160. In relation to weed clearance, we said (page 11):
“It is not clear what, if any, rule would permit the clearance of the Mangaone Stream inland from the coast and all similar streams. From time to time, the Regional Council clears weed from the stream so clearance should be a permitted activity. We note Rule 3A.1.7, which might apply, but consider that the meaning of the standards and in particular the wording of standard 4 a is confusing. We also note similar wording in Rule 9B.1.4.a i and seek its clarification too. If those rules (or any other rules) do not permit the clearance of rivers and streams inland from the coast, a new rule should be created.”
161. The relief that we sought (at page 12 of our first submission) is (italics added):
“We seek the following decisions: • clearing rivers and streams (including mouth straightening and other
mitigation activities) where that occurs by or on behalf of relevant authorities should be a permitted activity, notwithstanding various zoning and other notations on the maps and notwithstanding any rules in different chapters;
• remove any zoning or notation which interferes with that from the maps or amend the relevant rules to ensure that there is no restriction on river or stream clearance (including mouth straightening and other mitigation activities) and that the rules permitting such activities apply notwithstanding any other provisions of the PDP;
• remove any zoning or notation from the maps that complicates the task of determining which rules apply to rivers or streams;
• amend Rule 3A.1.7 and in particular the wording of standard 4 a to clarify its meaning;
• clarify the relationship between the second sentence in the definition of “Earthworks” and various rules relating to earthworks that refer to a different time period;
• amend Rule 9B.1.4.a i to clarify its meaning or provide a defined term;
• ensure that rules in other chapters (including but not limited to Chapters 3 and 4) do not contain rules that effectively override the permitted activity Rule 9B.1.6;
• consider if Rule 9B.1.6 should also refer to the relevant activities being permitted in Stream Corridors; and
• where rules refer to “development”, including Rule 3A.4.5, ensure that such rules do not restrict river and stream clearance permitted activities.”
162. From the quote above from our first submission, you can see that the s 42A
report’s reference to our submission and Rule 3A.4.5 only relates to the last point of the relief that we seek.
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163. In terms of the Mangaone Stream mouth, Map 4D Natural Features shows that the mouth of the stream is:
a. a significant amenity landscape; b. an ecological site - the ecological site is gravel dunes so it is
inappropriate for the stream to be an ecological site as it is a stream not gravel dunes. The mouth of the stream migrates, which disturbs the gravel dunes naturally. The ecological site should apply outside the migration area of the stream where the dunes are not disturbed naturally (I deal with this below in relation to Site K231); and
c. an area of high natural character.
164. Please be aware that the Chapter 3: Natural Environment (Ecological Site /
Indigenous Vegetation Component) s 42A report misrepresents and understates our submission in terms of:
a. river and stream mouth clearance being a permitted activity and
removing any zoning or notation which interferes with that; and b. weed clearance further upstream being a permitted activity.
Rules relating to river and stream mouth clearance - need to refer not only to Rule 9B.1.6 but also Rule 8.1.11 165. It seems that the two s 42A reports for Chapter 3 and the s 42A Coastal
Overview report intend for river and stream mouth clearance to be allowed as permitted activities in the PDP.
166. We support that and our submission sought that. 167. However, the intention is not achieved as there is no recommendation to refer
to Rule 8.1.11. 168. Chapter 8 recommends deleting Rule 8.1.1 but no submission sought its
deletion. 169. None of the s 42A reports address the implications of removing Rule 8.1.11
for river and stream mouth clearance activities for coastal erosion purposes. 170. In the s 42A reports, reference is made to providing exemptions in certain
Chapter 3 to rules in Chapter 9 eg Rule 9B.1.6, but those rules in Chapter 9 only relate to flooding.
171. Rules in Chapter 9 do not relate to river and stream clearance for coastal
erosion purposes. 172. As I explained to the Panel when I appeared earlier, the regional plan
distinguishes between river and stream cutting for flooding vs coastal erosion purposes. They are both in the same rule but there are different triggers for when the cutting occurs for flooding as opposed to coastal erosion purposes.
173. In relation to the Mangaone Stream, for example, for coastal erosion the
trigger is 100 m south and 300 m north of Te Horo Beach Road.
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174. Rule 8.1.11 is the rule that would allow river and stream clearance for coastal
erosion purposes; Rule 9B.1.6 deals with flood hazards (although I did not appreciate that when I prepared our submission).
175. Deleting Rule 8.1.11 would mean that there is no rule that permits river and
stream clearance for coastal erosion purposes so that rule needs to be retained. When a plan change eventuates, KCDC can either leave Rule 8.1.11 where it is or move it to wherever coastal hazard matters are addressed.
176. In the meantime, Rule 8.1.11 needs to remain in place and the rules in
Chapter 3 need to exempt Rule 8.1.11. 177. The exemptions in the Chapter 3 rules need to refer not only to eg Rule
9B.1.6 but also to Rule 8.1.11. Rules 3A.1.5 and 3A.4.5 - river and stream clearance issues 178. Para 379 of the Chapter 3: Natural Environment (Ecological Site / Indigenous
Vegetation Component) s 42A report says:
“… I consider that an appropriate response to these submissions would be to provide an exemption for the ‘modification of indigenous vegetation’ for ‘natural hazard mitigation works where authorised by Rule 9B.1.6. This could be added to the list of exemptions recommended to Rule 3A.1.5, which would ensure that such works are not captured by discretionary activity Rule 3A.4.2. Specific exemption would also be required to Rule 3A.4.5 which does not relate to indigenous vegetation modification but rather to ‘development’ within 5m (as recommended in this report) of an ecological site.”
179. The mark-up shows a change to Rule 3A.1.5 and shows it applying to the
Rural Hills, Rural Plains and Rural Dunes Zones ie:
“Modification of locally indigenous vegetation that is not within the urban environment within the Rural Hills, Rural Plains and Rural Dunes Zones except for notable trees listed in Schedule 10.1 which are covered in Chapter 10: Historic Heritage.”
180. As notified, the rule related to areas not within the urban environment so that
would include the Open Space (Conservation and Scenic) Zone. 181. Rule 3A.1.5 as recommended to be changed does not refer to the Open
Space (Conservation and Scenic) zone. That zone is where most of the river and stream mouth clearance activities occur, so any exemption that does not apply in that zone is of no assistance.
182. There is also a River Corridor Zone that is not within the urban environment
but I have not taken the time to consider it.
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183. The reference to the various rural zones may assist other activities in the Mangaone Stream further upstream. Our submission referred to the weed clearance that is undertaken in the Mangaone Stream and the exemption might cover that. However, it is not clear that it would. I am not sure if the weed clearance occurs for flood purposes or for amenity purposes.
184. Rule 3A.1.5 does not include the Open Space (Conservation and Scenic)
Zone. That is the zone where Rule 9B.1.6 (for flooding) and 8.1.11 (for coastal erosion) river and stream mouth cutting activities occur for most rivers and streams. Without referring to that zone, the rule does not apply to river and steam mouths so an exemption for Rule 9B.1.6 achieves nothing.
185. It seems that the rules that do apply in the Open Space (Conservation and
Scenic) Zone include Rules 3A.1.3 and 3A.1.5A (and others). 186. Those rules would also apply to the ecological site over the mouth of the
Mangaone Stream, if that part of the ecological site is not removed. 187. Ensure that, whatever rules might be relevant when the indigenous
vegetation rules are sorted out:
a. Rule 9B.1.6 and Rule 8.1.11 are exempted from all relevant rules for river and stream mouth clearance activities and consideration is given as to whether Rule 9B.1.4 also needs to be exempted; and
b. there are appropriate exemptions for weed clearance further upstream
for work done by relevant authorities. 188. Consider the various different ways and places, and differences in wording,
used to identify exemptions in the different rules in this chapter and across the chapters of the PDP. Adopt a consistent format and language for the exemptions.
Rules 3A.1.3 and 3A.1.5A 189. Please see the discussion under the preceding heading. 190. Include an exemption for activities carried out under Rule 9B.1.6 and Rule
8.1.11. Rule 3A.1.7 191. River and stream mouth clearance activities in some areas could be caught
by this rule eg if the ecological site is removed from the Mangaone Stream mouth, as it should be.
192. Include an exemption for activities carried out under Rule 9B.1.6 and Rule
8.1.11.
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Rule 3A.1.9 193. There is no exemption provided for Rule 8.1.11. 194. Include an exemption for activities permitted under Rule 8.1.11. 195. As noted above, consider the various different ways and places, and
differences in wording, used to identify exemptions in the different rules in this chapter and across the chapters of the PDP. Adopt a consistent format and language for the exemptions.
Rule 3A.2.5 196. The mouth of the Mangaone Stream is currently identified as an ecological
site. I have already discussed that and will address it further in relation to Site K231 below.
197. Include an exemption for activities carried out under Rule 9B.1.6 and Rule
8.1.11. Rule 3A.2.6 198. River and stream mouth clearance activities could be caught by this rule. 199. Include an exemption for activities carried out under Rule 9B.1.6 and Rule
8.1.11 Rule 3A.4.5 200. Please see the comments above under the heading “Rules 3A.1.5 and 3A.4.5
- river and stream clearance issues”. 201. Include an exemption for activities carried out under Rule 8.1.1. River and stream mouth clearance and weed clearance further upstream - general, Rule 9B.1.4 and Rule 3A.1.1 202. In case I have failed to refer to any relevant rules, I refer to the relief that we
sought for river and stream mouth clearance activities to be a permitted activity, for zoning and notations that interfered with that to be removed, and for weed clearance further upstream also to be a permitted activity.
203. I also see that some recommended rules exempt Rule 9B.1.4 and some do
not. Whether Rule 9B.1.4 needs exemption may depend on the ultimate form of Rule 9B.1.4.
204. As discussed in the next section, the default permitted activity Rule 3A.1.1
and its standard 1 is problematic. 205. Appropriate exemptions for river and stream mouth clearance and weed
clearance further upstream should be included in all relevant rules and those exemptions should refer to all relevant rules (including Rules 9B.1.6 and 8.1.11).
206. Consider which rules need to exempt Rule 9B.1.4.
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207. Carefully consider the inappropriateness of the default permitted activity Rule
3A.1.1 as discussed in the next section. Rules 3A.1.1, 3A.1.3, 3A.1.5A, 3A.2, 3A.2.6, 3A.3.1, 3A.3.1A, 3A.4.2 in the mark-up, the Schedules, and all provisions relating to indigenous vegetation 208. As already noted, there are problems relating to the indigenous vegetation
rules in relation to river and stream mouth clearance activities. 209. From a more fundamental perspective, it is my opinion that the provisions
relating to indigenous vegetation are not in accordance with the RMA, including:
a. they are not sanctioned by s 6(c) and there has been inadequate
focus on the wording of s 6(c) in developing the provisions; b. there has not been proper consideration of s 5 and enabling people
and communities to provide for their social, economic and cultural well-being; and
c. there has been no appropriate s 32 evaluation. The rules impose
significant restrictions on private property rights. There has been no appropriate s 32 evaluation that assesses the implications of the restrictions.
210. In my opinion, the provisions relating to indigenous vegetation are
inappropriate. It seems apparent that they were developed without considering the wording of s 6(c) of the RMA ie (italics added):
“(c) the protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna”.
211. In response to an RMA amendment, the urban trees variation was advanced. 212. The recommendations in the Chapter 3 mark-up result in indigenous
vegetation being treated differently in the Living Zones that have sewage supply and Living Zones that do not have sewage supply.
213. That is inappropriate. 214. The fact that Parliament introduced provisions relating to the urban
environment is no reason for the PDP to make unwarranted differences between what trimming and modification of indigenous vegetation people can do on their properties throughout the Living Zones.
215. Schedule 3.2 does not apply to Living Zones in the urban environment
(except for the inappropriate recommended inclusion of Schedule 3.2 in Rule 3A.2.5). Schedule 3.2 should not apply to any Living Zone area.
216. The rules should also be made much less complicated by providing for rules
for Living Zones and rules for other areas. Currently the rules are complicated and there are gaps and oddities in the rules.
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217. It seems that:
a. taupata is to remain in a revised version of Schedule 3.2; and b. there are to be restrictions relating to individual taupata that have not
been planted by humans if the taupata is of a certain size. 218. That is not in accordance with s 6(c) of the RMA or any other provisions of
the RMA. 219. Our property at Te Horo Beach is in the Living Zone but not in the urban
environment so our property is not covered by the urban trees variation. 220. It seems that Rules 3A.1.3 and 3A.1.5A (and others) would apply to:
a. our property;
b. the Open Space (Conservation & Scenic) Zone where river and stream mouth clearance activities occur; and
c. the mouth of the Mangaone Stream if the ecological site notation is
not removed from the mouth. 221. The restrictions are unacceptable and are not in accordance with the RMA. 222. Taupata is listed in Schedule 3.2 so if one of the diameter or height criteria is
exceeded, the restrictions will apply to everything not planted by humans. 223. Taupata self-seeds and grows easily, readily and profusely in Kapiti,
especially in what was identified in the PDP as the Salt Zone. 224. The recommended definition that excludes vegetation planted by humans
does not assist with self-seeded (or bird-seeded) vegetation. 225. We have plenty of taupata that have self-seeded on our ordinary double
section in the Living Zone. 226. There is no valid reason for any provisions restricting activities relating to self-
seeded (or bird-seeded) taupata. Taupata thrives when it is trimmed. 227. Furthermore, in terms of the Salt Zone ecological domain, the
recommendation to remove reference to the ecological domains has dramatically expanded the range of species to be protected from what was in the PDP as notified. That is inappropriate.
228. Rule 3A.1.3 b and c limit trimming to removal of vegetation that is broken,
dead or chronically diseased or that does not form part of the “main structure (the trunk or a primary structural limb)”, whatever that means in the context of taupata.
229. The whole point in relation to taupata is that it thrives by being trimmed. Not
just trimming what is broken, dead or chronically diseased or something that is not part of the “main structure”. Trimming what is appropriate to keep the taupata healthy and not spindly. That can include part of the “main structure”.
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230. The linkage “and” to distance from habitable rooms or existing permanent buildings, and to access, means that even the trimming referred to above of dead vegetation would not fit within the exemption.
231. A resource consent would be required to trim dead vegetation beyond 3 m
from windows of a habitable room or 2 m from the wall or roof of an “existing permanent building”.
232. And there is recommended standard vi on top of everything else. 233. What exactly is the peril that:
a. warrants such restrictions on taupata and other Schedule 3.2 species (dramatically expanded in eg the Salt Zone by the recommended removal of the ecological domains); and
b. interferes so significantly with the reasonable rights of property
owners; given that the restrictions do not relate to
c. an area of significant indigenous vegetation or a significant habitat of indigenous fauna (s 6(c)).
234. The provisions are not in accordance with the RMA and there has been no
proper s 32 evaluation and no further appropriate evaluation has occurred. 235. Rule 3A.1.5A has different standards regarding “modification”. 236. If the definitions of “trimming” and “modification” referred to in the s 42A
report are retained, it seems to me that the illogical outcome of Rules 3A.1.3 and 3A.1.5A in the mark-up is that:
a. under Rule 3A.1.3 one cannot trim a tree in certain places; but b. under Rule 3A.1.5A one could remove the entire tree.
237. It seems to me that one needs to step back from the details of these rules
and develop more logical, consistent and appropriate provisions that relate to the relevant zones, that are sanctioned by the RMA, and that have been assessed properly in accordance with s 32 and 32AA.
238. The standards in Rule 3A.2.5 and 3A.2.6 are equally inappropriate. In Rule
3A.2.5, it is inappropriate for it to refer to Schedule 3.2 for urban environment areas (and Schedule 3.2 should not apply to any Living Zone areas). And there is no need for an arborist to trim taupata.
239. Rules 3A.3.1, 3A.3.1A, 3A.4.2 are also inappropriate. 240. Furthermore, the default permitted activity Rule 3A.1.1 is inappropriate.
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241. Rule 3A.1.1:
a. covers “Any activity which is not otherwise specified as permitted, controlled, …”; and
b. includes a standard that the activity complies with all permitted activity
standards in Rule 3A.1. 242. Has the effect of this provision been considered? 243. Exotic vegetation, whether planted by humans or not, is not otherwise
specified as permitted, controlled, etc. 244. The effect of Rule 3A.1.1 seems to be that eg exotic vegetation cannot be
dealt with unless the standards in Rule 3A.1 have been met. That is inappropriate.
245. In my opinion, the provisions relating to indigenous vegetation are “over the
top”, misguided, and not supported by the RMA. 246. There has been:
a. inadequate attention to the wording of s 6(c) of the RMA which relates to areas of significant indigenous vegetation and significant habitats of indigenous fauna. The taupata and other species that are restricted by these rules are neither of those;
b. an inappropriate focus on “protection” (a consistent theme throughout
the PDP as notified) with little or no thought about people’s reasonable property rights or reasonable use and enjoyment of their property;
c. inadequate focus on s 5 and enabling people and communities for
provide for their social, economic and cultural well-being; and
d. no appropriate s 32 evaluation. 247. Reconsider all provisions relating to indigenous vegetation, taking into
account all of the matters discussed above and raised earlier in relation to river and stream mouth clearance activities.
248. Include only restrictions that are in accordance with the RMA and that have
been assessed properly under ss 32 and 32AA. 249. Make the rules logical, consistent and easier to understand, without gaps or
oddities. 250. Carefully consider the effect of the default permitted activity Rule 3A.1.1. As
an overlay chapter, a default permitted activity rule seems inappropriate. This rule and standard 1 is particularly inappropriate. It seems to me that Rule 3A.1.1 should be removed. Paras 248-254 of my evidence and submissions lodged at the beginning of the process deal with the issue of default rules in overlay chapters.
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251. Consider the implications that removing the ecological domains has dramatically and inappropriately expanded the species to be protected in Schedule 3.2 from the scope of species to be protected in the PDP as notified eg in the Salt Zone.
252. Provide that Schedule 3.2 does not apply in any of the Living Zones. 253. If that does not occur, remove taupata from Schedule 3.2. 254. If that does not occur, then provide that trimming, modification (or whatever)
should not be restricted in relation to taupata in Living Zones including taupata that has self-seeded (or seeded by birds dropping seeds), unless taupata are specifically referred to in Schedule 3.2A.
255. Provide appropriate exemptions for river and stream mouth clearance
activities, including Rules 9B.1.6 and 8.1.11 and consider if Rule 9B.1.4 also needs to be exempted.
Schedule 3.1 Ecological sites - Site K231 and mapping of Site K231 256. I have referred to issues about this ecological site before, that it is the gravel
dunes not the stream or the stream mouth that should be referred to and the problems of the ecological site extending over the mouth of the stream.
257. We generally support the wording changes in the revised Schedule 3.1
description of Site K231, but oppose the reference to:
“ numerous battles were fought and lives were lost”. 258. This wording creates the misleading impression that the limited area identified
in K231 is some special area where battles were fought and lives were lost when any fighting occurred over a much wider area.
259. In fact, K231 is included because of its gravel dunes and the flora and fauna
associated with the gravel dunes, not because of battles being fought and lives lost there.
260. In addition, Figure 812 of Kapiti Coast Erosion Hazard Assessment Part 2:
Inlets by Coastal Systems Limited shows the historical shoreline at Te Horo. That indicates that some of Site K231 was probably not in existence at the time of the wars. It has been created by ongoing accretion.
261. In any event, the battles that did take place occurred over a much larger area
than any parts of Site K231 that might have existed at the time. There is nothing special about Site K231 that would warrant mentioning battles in the context of what is an ecological site.
262. In addition, we are increasingly concerned about the provisions relating to
ecological sites and the inappropriateness of those provisions applying to the stream and the stream mouth.
12See page 29 at http://www.kapiticoast.govt.nz/contentassets/a933446e8c094de8a946d20b9f36a1de/kapiti_coast_erosion_hazard_assessment_part2_inlets.pdf.
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263. As already noted, the ecological site relates to the gravel dunes although the lines were drawn all along the coast, including the mouth of the stream and the stream, which is not a gravel dune so should not be in the ecological site.
264. The stream mouth changes direction so there is natural disturbance of the
area, in contrast to the rest of the gravel dunes. 265. Our first submission sought at page 12 (among other things):
• clearing rivers and streams (including mouth straightening and other mitigation activities) where that occurs by or on behalf of relevant authorities should be a permitted activity, notwithstanding various zoning and other notations on the maps and notwithstanding any rules in different chapters;
• remove any zoning or notation which interferes with that from the maps or amend the relevant rules to ensure that there is no restriction on river or stream clearance (including mouth straightening and other mitigation activities) and that the rules permitting such activities apply notwithstanding any other provisions of the PDP;
• remove any zoning or notation from the maps that complicates the task of determining which rules apply to rivers or streams.
266. At page 12 of our first submission under the heading ECOLOGICAL SITES,
IN PARTICULAR SITE K231 - CHAPTER 3 AND MAP 04D, we cross-referenced what we had said in the previous section of our submission.
267. None of that has been referred to in the s 42A report and accompanying
material re Site K231. 268. In terms of the ecological site and the migrating stream mouth, the ecological
site should be changed to remove the notation from the migrating stream mouth so that the ecological site is correctly focussed on the gravel dunes that are not disrupted by natural processes.
269. To achieve consistency with the GWRC, the removal could correspond with
the limits in the existing and proposed regional plans (see eg Schedule U of the PNRP) ie 100 m south and 300 m north of Te Horo Beach Road.
270. In terms of Site K231, the following should occur:
a. make the following change to the wording at the end of the Description column in Schedule 3.1:
“This stretch of dunes is important to the hapū of Ngāti Raukawa for its ecological richness, numerous battles were fought and lives were lost, and driftwood collection. The wood also provides also habitat for fauna”.
b. remove Site K231 from 100 m south and 300 m north of Te Horo Beach Road.
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Linkage between Chapter 3 and Chapter 9 (and other linkages) 271. Para 30 of the s 42A Coastal Overview report says:
“… the functional link between the Natural Environment and Hazards chapters (Chapters 3 and 9) is comparatively less strong than others.”
272. In my opinion, the functional link between the chapters is strong. The
protection elements of Chapter 3 have a significant effect on the ability to implement Chapter 9 hazards activities (and Rule 8.1.11 in terms of river and stream mouth cutting for coastal erosion purposes).
273. The problem is even more significant for coastal hazard mitigation activities. 274. The protection provisions in Chapter 3 will be locked in. 275. There will be inadequate coastal hazard objectives and policies to advance
Policies 24-27 of the NZCPS in relation to a range of coastal hazard mitigation activities to be dealt with in the PDP not the ODP ie activities that do not involve buildings (or structures, depending on what structures are dealt with in the ODP vs the PDP).
276. The identification of areas of high natural character and areas of outstanding
natural character that run along the entire coast very strongly adversely affect the ability to undertake soft engineering coastal hazard mitigation activities (and hard engineering ones too).
277. The existence of an ecological site over the migrating mouth of the Mangaone
Stream is another problematic example. 278. Special amenity landscapes is another problem if consent is needed. 279. As noted earlier, para 35 of the s 42A Coastal Overview report says:
“The Hazards [Chapter 9] and Natural Environment chapters [Chapters 3] are functionally on a par. In my opinion, the rules of those chapters need to allow for a balanced consideration of risk mitigation versus impacts on the natural environment, if that is ever an issue in the context of a resource consent application. Allowing that consideration is consistent with a tension that already exists in the overriding purpose of the Act. That is, enabling the community’s health and safety, while sustaining and safeguarding natural resources.”
280. As I noted earlier, it is not only the rules that need to be appropriate but also the objectives and policies. The objectives and policies are what will be looked to in any consent application.
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281. The Panel needs to consider carefully the linkages and the implications of Chapter 3 protection policies and rules for:
a. Chapter 9 activities; b. Rule 8.1.11 activities (Rule 8.1.11 is recommended to be deleted but it
is the only rule that would permit river and stream clearance activities for coastal erosion purposes). Chapter 9 rules deal with flooding and erosion relating to flooding, not coastal erosion;
c. soft engineering activities for coastal hazard mitigation which would be
dealt with by eg PDP earthworks and vegetation clearance rules;
d. coastal hazard activities being dealt with by the ODP but that will eventually be slotted into the existing PDP protection framework.
Combining Chapters 3 and 4
282. Paragraph 164 of the s 42A Coastal Overview report recommends combining
Chapters 3 and 4. 283. The first thing that needs to be considered is that Chapter 4 is titled Coastal
Environment. So everything in that chapter relates only to the coastal environment, not a wider area.
284. If provisions are to be moved from Chapter 4 Coastal Environment, then all of
those provisions need to be qualified as applying only in the coastal environment.
285. The mark-up for Chapter 4 does not do that. 286. Therefore, the provisions are not currently in a form that they could be
merged. 287. In addition, in terms of the rules, there may be problems caused in the
cascade of the rules by merging the chapters. 288. At this stage, one of the issues is the lack of reference to structures in the
Chapter 3 rules and the reference to structures in the non-complying activity Rule 4A.5.2 where “structures” pops up for the first time in the cascade of rules in Chapter 4.
289. There is certainly a problem with structures appearing for the first time in that
non-complying activity rule, not only for the merging issue but also for the Chapter 4 cascade issue.
290. But that is not the only problem with the rule or other rules in Chapter 4. A
number of the Chapter 4 rules should be deleted as being contrary to West Coast Regional Council v Royal Forest and Bird Protection Society of New Zealand [2007] NZRMA 32. I deal with that in Chapter 4.
291. Combining Chapters 3 and 4 would need to be done with great care.
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292. If combining the chapters is an option that the Panel wishes to progress:
a. a mark-up of the recommended combined chapters should be prepared and provided to submitters, with the author for Chapter 4 focussing on ensuring that all of the Chapter 4 provisions are stated to apply only in the coastal environment;
b. rules that offend against West Coast Regional Council v Royal Forest
and Bird Protection Society of New Zealand [2007] NZRMA 32 should be deleted;
c. there should be an opportunity to address the combined chapters at
the integration hearing at the end. Recommended changes in the s 42A Coastal Overview report are not in the mark-up 293. A number of the recommended changes set out in the s 42A Coastal
Overview report are not on the combined mark-up of Chapter 3. 294. Please note that not all of the recommended changes in the s 42A Coastal
Overview report are in the combined mark-up. Recommended wording for Chapters 3, 4, 5, 7, 8, and 9 295. Para 144 of the Coastal Overview report asserts:
“Integration with the PDP will be achieved by Chapters 3, 4, 5, 7, 8 and 9 clearly stating that coastal hazard protection structures are managed under the retained ODP provisions.”
296. Please see the next Part where I deal with the inappropriateness of such
wording. PART 3 - SOME EXAMPLES OF PROBLEMATIC INTEGRATION MATTERS ARISING FROM THE S 42A COASTAL OVERVIEW REPORT 297. In this Part, I set out just some examples of the many problematic integration
matters arising from the s 42A Coastal Overview report. What ODP provisions are to remain in force – conflicts between the rules 298. If one assumes for the sake of argument that the withdrawals by KCDC were
legally valid and that relevant provisions from the ODP remain in force, it seems reasonably fundamental that:
a. the relevant and applicable ODP provisions that relate to the activity
are retained;
b. it is not an opportunity to rewrite the ODP provisions and their applicability.
299. But that is not what the s 42A Coastal Overview report is suggesting.
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300. As the Chapter 5 Living Environment and the Chapter 7 Rural Environment hearings have ended without all of the relevant information being available (including the ODP provisions to remain in force), I will wait to address integration issues relevant to those chapters at the integration hearing at the end of the process as the s 42A Coastal Overview report suggests.
301. However, at this stage, I will use the Residential Zone ODP permitted activity
rule as an example. 302. What the s 42A Coastal Overview report is suggesting is that:
a. rules that are applicable are not retained; and b. the default catchall rule is the only rule that is to be retained.
303. That cannot be sustained on a legal basis. 304. While the language used in the report is variable in terms of exactly what is to
be dealt with and where in terms of coastal hazard management, it seems that what is intended is that:
a. houses (to use a neutral word not used in the ODP or the PDP) are to
be dealt with by the ODP in the relevant areas; b. everything else eg earthworks, vegetation clearance is to be dealt with
by the PDP.
305. So the Residential Zone ODP provisions that are relevant and should be retained are those that deal with houses and other buildings.
306. But that is not what the report says is to occur. 307. The rules to remain in force are decidedly odd. I have never seen a plan with
such odd rules dealing with buildings or a plan that deals with houses in the Residential Zone in such an odd manner.
308. So either the ODP is decidedly odd or something is amiss.
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309. Here are the only rules that the report says are to remain in force for the
Residential Zone (Appendix One, page 13):
“Residential Zone Rules D.1.1.1 Permitted Activities The following are permitted activities: (xviii) All other activities, excluding retailing, which are not listed as CONTROLLED, DISCRETIONARY, NON-COMPLYING or PROHIBITED and which comply with all the permitted activity standards. D.1.1.3 Discretionary Activities (B) The following are Discretionary Activities: (i) All activities which are not listed as NON-COMPLYING or PROHIBITED and all other activities which do not comply with one or more of the permitted activity or controlled activity standards.”
310. Here is an extract from Rule D.1.1.1 from the ODP: “D.1.1.1 Permitted Activities The following are permitted activities:
(i) One dwelling and one family flat and accessory buildings on any lot provided they comply with all the permitted activity standards.
… (xviii) All other activities, excluding retailing, which are not listed as CONTROLLED, DISCRETIONARY, NON-COMPLYING or PROHIBITED and which comply with all the permitted activity standards.” 311. It is apparent that Rule D.1.1.1(i) is the rule that deals with houses:
“(i) One dwelling and one family flat and accessory buildings on any lot provided they comply with all the permitted activity standards.”
312. That at least is a rule that should remain in force if KCDC seeks to restrict
houses being built in the relevant areas. 313. It is also apparent that the rule to be saved ie (xviii) does not regulate houses. 314. It deals with (italics added):
“(xviii) All other activities, excluding retailing …”.
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315. The same issue arises in relation to the Rural Zone - Rules D.2.1.1(i) and
D.2.1.1(xix) in the ODP compared with Appendix One purporting to retain only (xix).
316. In my opinion, the rules that the report purports to “remain in force” cannot be
sustained on a legal basis. 317. The rules are not “remaining in force” to use Appendix One’s terminology,
because they have never had the force of meaning that the s 42A report now purports to give to them.
318. In terms of integration between the PDP and the ODP:
a. what is critical is whatever ODP provisions will actually remain in force at the end of this process; and not
b. the ODP provisions purporting to be “remaining in force” that actually
change the meaning of the ODP provision. 319. From a legal perspective, it is my opinion that if provisions are to remain in
force in the ODP then Rule D.1.1.1(i) and Rural Zone Rule D.2.1.1(i) should remain in force and that not including them misrepresents the meaning of the provisions that the s 42A report asserts are to remain in force.
320. In terms of integration, the Panel needs to be aware that there are conflicts
between the PDP rules and rules that properly should remain in force in the ODP. I will deal with the Residential and Rural Zone integration matters at the final hearing.
What ODP provisions are to remain in force - conflicts between the standards 321. In addition to the conflicts between the rules, the Panel needs to be aware
that there are conflicts between equivalent standards in the PDP and the ODP for eg the Residential Zone.
The PDP and the ODP should be able to be interpreted by the words of the legal documents 322. Again, it one assumes for the sake of argument that the withdrawals by
KCDC were legally valid and that relevant provisions from the ODP remain in force, it seems reasonably fundamental that:
a. the provisions in the PDP and the ODP should stand on their own; b. the provisions should be able to be interpreted sensibly by reading the
words of the documents in their context;
c. only the provisions of the documents are legally valid and any explanation is not legally relevant.
323. It is my opinion that the need for the s 42A Coastal Overview report to provide
all of the explanation in Appendix One is evidence that the provisions do not stand on their own.
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324. Reading the provisions on their own without all of the explanatory text and the purported Activity Tables (which, in my opinion, are purported interpretations of the rules and do not do not accurately reflect the rules) reinforces that they cannot be interpreted on their own.
325. The Panel should consider whether the provisions themselves, without all of
the explanatory text, notes inserted into ODP provisions and the purported “Activity Tables” (which, in my opinion, are purported interpretations of the rules and do not do not accurately reflect the rules) can be properly interpreted on their own.
Buildings, structures and other wording inconsistencies - need for precision as to what the PDP and ODP are dealing with 326. If some things are to be dealt with in the ODP, and not in the PDP, then
precise, clear, consistent, and legally-appropriate language needs to be used so that there is no room for confusion or litigation as to what is being dealt with where.
327. The s 42A Coastal Overview report and Appendix One fails to use consistent
terminology and describes what is to be dealt with in the ODP in a number of different, inconsistent ways.
328. Para 26 says:
“The retained provisions relate to controls over the location of development relative to the coastline, and controls over the erection of buildings – which includes structures such as seawalls.”
329. That para refers to buildings, which includes structures such as seawalls. It
seems that structures that are excluded from the definition of building (eg retaining walls under a certain height) are not covered by the ODP.
330. Para 102 says:
“In effect, the Council’s decision to retain ODP coastal hazard management provisions creates a separate regime for buildings and structures within a specific geographic area.”
331. So that para is referring to buildings and structures. In contrast to the earlier
quote, it seems that it includes buildings (including structures within the definition of “Building”) and seemingly also structures that are not included in the definition of “Building”.
332. In para 119, in relation to small-scale detached structures, the report says:
“There is no conflict with the retained ODP provisions, as structures of this nature do not require a building consent, and they are excluded from the ODP definition of “Building”.”
333. So that again reinforces that the ODP is dealing with buildings (and structures
that are included in the definition of “Building”), but not structures excluded from the definition of “Building”.
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334. Para 144 introduces new terminology (italics added):
“Regarding the potential to authorise coastal hazard mitigation works, this is covered by the retained ODP provisions”.
335. Later in that para, the report says (italics added):
“Integration with the PDP will be achieved by Chapters 3, 4, 5, 7, 8 and 9 clearly stating that coastal hazard protection structures are managed under the retained ODP provisions.”
336. At para 147, the report says (italics added):
“In summary, the integration solution I am recommending is that seawalls are managed under the retained ODP provisions, but subject to the character provisions of the PDP.”
337. So in relation to what the ODP deals with, the s42A Coastal Overview report
refers variously to the ODP dealing with:
a. buildings; b. structures; c. coastal hazard mitigation works; d. coastal hazard protection structures; and e. seawalls.
338. The inconsistencies in wording lead to uncertainty as to what is and what is
not to be covered in the ODP. 339. There are also inconsistences in wording of the various Notes that are
apparently to be included with the provisions to remain in force in the ODP. 340. The suggestion at para 144 of the s 42A Coastal Overview report that:
“Integration with the PDP will be achieved by Chapters 3, 4, 5, 7, 8 and 9 clearly stating that coastal hazard protection structures are managed under the retained ODP provisions”
is in my opinion unsatisfactory. It does not clearly state (as is asserted) what is to be addressed under the ODP and is inconsistent with the rules and standards that the report asserts are to remain in force in the ODP.
341. The problems include:
a. it seems apparent that houses in the relevant areas are intended to be caught by the ODP Residential and Rural Zones at least. That seems to be the whole point of the setbacks and the relocatable areas in the Residential Zone. Houses are not coastal hazard protection structures;
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b. there is a lack of certainty as to what is a coastal hazard protection structure;
c. there are various issues in terms of conflicting references to buildings
and structures in the report and Appendix One; and d. what the retained rules cover is determined by the words of the rules
in their context in the ODP, not by some statement in the chapters of the PDP.
342. It seems that Appendix One may be a document that KCDC is intending to
provide to people to explain what is to be dealt with in the PDP and the ODP. 343. There are numerous problematic aspects with Appendix One, but I do not
intend to spend my time addressing numerous problems in a draft document. 344. In my opinion, the need for Appendix One indicates yet another problem with
what is occurring. There should be no need for all of that discussion that has no force of law in any event.
345. Until these matters (and many others not yet discussed) are addressed with
precision and in a final (not draft) form, the Panel seems to be in a difficult, if not impossible, position in assessing the integration of the PDP and the ODP.
346. If some things are to be dealt with in the ODP, and not in the PDP, then
precise, clear, consistent, and legally-appropriate language needs to be used so that there is no room for confusion or litigation as to what is being dealt with where.
347. The words of the PDP and the ODP should be clear and capable of being
interpreted on their own in their context. Appendix One is not complete 348. In addition to a wide range of problems with Appendix One, it is not complete. 349. It does not, for example, include the definitions to remain in force. 350. Appendix One does not refer to the definition of building, but para 105 of the s
42A Coastal Overview report says:
“the definition of “building” … would be retained for the purpose of assessing consent applications”.
351. The definition needs to be retained not for the purpose of assessing consent
applications, but to correctly interpret the ODP provisions. Again, using the Residential Zone as an example, many (but not all) of the standards refer to buildings.
352. Other definitions also need to be retained to correctly interpret the ODP
provisions.
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353. For example, again using the Residential Zone as an example, the Yard standard does not say to what it applies eg buildings or all structures. Not all structures are within the definition of building (see all of the exclusions from the definition as well as the meaning of “Dwelling”). The information as to what cannot be in the yard is in the definition, not the standard.
354. There are other missing definitions. 355. Wherever the rule or standard refers to a defined term, that defined term also
needs to be remain in force or the meaning of the ODP may be changed. 356. Appendix One is a faulty, incomplete, draft document. What submitters and
the Panel need are accurate, complete, legally-correct and final provisions of the ODP that are to remain in force.
What is occurring is not integrated management 357. Leaving aside the inappropriateness of rules that the s 42A Coastal Overview
report asserts are to “remain in force”, the wording inconsistencies that lead to confusion, and the incomplete nature of Appendix One, it seems that what is intended by the s 42A report is that:
a. what is included in the definition of “Building” is intended to be dealt
with by the ODP; b. the situation in terms of structures seems to be unclear (despite the
purported Activity Tables); c. earthworks and vegetation clearance related to those buildings (or
structures) are to be dealt with by the PDP;
d. earthworks and vegetation clearance unrelated to buildings (or structures) eg river and stream clearance, significant coastal hazard mitigation activities such as sand deposition or sand movement that occurs landward of the coastal marine area are to be dealt with by the PDP.
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358. So, it seems to me that an overall summary of the situation is:
a. KCDC blundered into removing all of the coastal hazard provisions from the PDP13;
b. coastal hazards would be dealt with not by the PDP but by the ODP
(although there was confusion about this);
c. in response to questions from Mr Maassen, the Panel said (Minute 5 para 11) :
“The Hearings Panel is not addressing “coastal hazard management”, as those provisions were withdrawn from the PDP by public notice on 31 October 2014”;
d. but now KCDC is asserting that only buildings (or structures) are to be
dealt with by the ODP (using inconsistent language);
e. all other activities eg earthworks, vegetation removal and presumably river and stream mouth clearance activities (as they do not involve buildings or structures) are to be dealt with in the PDP;
f. the coastal hazard objectives and policies have been withdrawn from
the PDP so there are not adequate objectives or policies in place to provide support to those seeking consent for these and other activities anticipated by the RMA and the NZCPS;
g. the Panel is apparently not addressing coastal hazard management
as those provisions were withdrawn from the PDP;
h. but the Panel is addressing all of the protection aspects of the PDP. 359. That seems to me to be entirely unsatisfactory and the antithesis of the
Council’s functions under s 31(1)(a) ie (italics added):
“the establishment, implementation, and review of objectives, policies, and methods to achieve integrated management of the effects of the use, development, or protection of land and associated natural and physical resources of the district”.
360. Are all of the protection provisions to be put in place in the PDP without the
countervailing coastal hazard management aspects also being addressed?
13See the 28 May 2015 letter from Sylvia Allan to KCDC where she says in the penultimate paragraph “Unfortunately a key element of the coastal objective of the [PDP] was withdrawn at the time that policies and rule provisions were withdrawn. This went beyond the recommendations of our review and has left a potential inconsistency between the [PDP] and the requirements of the two higher order policy documents [NZCPS and RPS].” http://www.kapiticoast.govt.nz/contentassets/0c65798ed06a43f5b7d826dfcec06e18/sylvia-allan-independent-review.pdf. See also Appendix 2 which is the unsworn version of my affidavit for the declaration proceedings in the Environment Court. The sworn version is a scanned document and too large a document to send by email. The lawyer taking my oath said that for technical legal reasons the affidavit should be sworn, not affirmed, so that is what occurred. Other than that, the wording of the attached document is identical to the sworn affidavit.
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361. Regardless of what is dealt with in the PDP and the ODP, the protection
provisions are being “locked in” to the PDP now. 362. Without considering coastal hazard management issues, inappropriately
restrictive protection provisions may be put in place. 363. That is not consistent with:
a. KCDC’s s 31 statutory functions relating to the integrated management of the effects of the use, development, or protection of land and associated natural and physical resources of the district;
b. ss 32 and 32AA; or
c. Part 2 of the RMA, including s 5 and enabling people and
communities to provide for their social, economic and cultural well-being and for their health and safety .
Joan Allin 14 July 2016