PROPOSED KĀPITI COAST DISTRICT PLAN 2012

GENERAL/PLAN-WIDE HEARING

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SUPPLEMENTARY EVIDENCE AND SUBMISSIONS OF JOAN ALLIN

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1. This document relates to the General/Plan-wide matters hearing and is supplementary to my evidence and submissions already lodged.

2. I have been travelling overseas (as a tourist so moving around quite a lot) and returned home only late last night.

3. I have therefore not had the opportunity to reflect on, or double-check, this document as I would have preferred. I have not had time to discuss my various concerns with the author of the s 42A reports so if I have misunderstood anything in the reports, I apologise in advance. I have also not been able to address whether there are solutions for the problems that I have identified or what those solutions might be.

4. In my earlier evidence and submissions, I said that lawyers are sometimes asked to “stuff up” what someone else is doing.

5. More often, though, a lawyer’s job is to give advice to people that stops them from getting themselves into trouble. Both my plea to the Council not to notify the PDP (discussed later) and my without prejudice 2013 draft evidence (discussed in my previous evidence and submissions) were failed attempts at that.

6. Challenging cases are where people have gone ahead and landed themselves in trouble. The lawyer’s job then is to try to find a way to get through the situation in which the people find themselves - preferably a good solution.

7. Coming up with solutions for the situation in which KCDC, officers, submitters and the Panel now find themselves has taxed my brain. In my opinion, there are significant problems and win-win solutions are not obvious. All of the solutions that I can think of have corresponding problems, though from different perspectives.

8. Because I haven’t been able to figure out solutions, I have contacted an experienced resource management lawyer for help on the basis that two heads are better than one. Because I have been overseas, we have not been able to have a conversation. I hope that we will be able to in the not-too-distant future. If that occurs and if I have thoughts about solutions, I will address those either in further supplementary evidence or, more likely, orally at the hearing, if that is acceptable to the Panel.

9. This supplementary evidence and submissions is dealt with under the headings:

a. General;b. Comments on the s 42A Part A report; andc. Comments on the s 42A Part B report.

GENERAL

Marked-up chapters

10. In preparing this supplementary evidence and submissions, I wanted to check if KCDC withdrew an objective dealing with coastal hazard matters. The Allan/Fowler report and the Council’s resolution refer to withdrawing policies but there is no reference to withdrawing objectives.

11. While I am preparing this, I am overseas so couldn’t use my hard copy.

12. I thought that the most efficient way for me to find out would be to look at the marked-up copy of Chapter 2 which I assumed would be attached to the s 42A Part B report for Chapter 2 to see what KCDC had withdrawn (which would also include what the officer is recommending for any coastal hazard objective).

13. But there seems to be no marked-up copy of Chapter 2 attached to the s 42A report or on KCDC’s website - or at least I couldn’t find one.1

14. The objectives, or parts of them, are scattered throughout the s 42A report.

1 I eventually went to KCDC’s website and discovered that parts of Objective 2.4 Coastal Environment had been withdrawn.

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15. The approach of the report to dealing with recommended changes is problematic in that it does not enable submitters, efficiently:

a. to see what the objective itself would look like as a whole after the recommended change;

b. to see what words have been italicised and are therefore defined (or what has not been italicised that should be or what is italicised that should not be);

c. to see what has been withdrawn from the PDP by KCDC;

d. to see if any objectives have been added;

e. to see how well the wording across the objectives meshes (or not); and

f. to look at the full suite of objectives.

16. Importantly, it does not enable you to do any of those things efficiently either.

17. In my view, it is another example of an inappropriate silo approach and a continued reflection of KCDC officers not understanding the importance of what the whole farm, or package, looks like.

18. It should not be necessary for the Chairperson or the Panel to have to issue any direction or request to the officers in relation to providing a marked-up copy of the chapters, as a marked-up copy should be being provided as a matter of course.

19. However, that is not occurring so it seems that the officers need to be directed or asked to provide a marked-up copy of the relevant chapters as part of their s 42A reports.

20. To avoid any additional problems:

a. the mark-up should be done by strikethrough and underline, not Word tracked changes;

b. the mark-up should identify the provisions withdrawn by KCDC using one method, presumably using one colour;

c. the mark-up should identify additions or deletions by the officer using a different method, presumably using a different colour;

d. for chapters where there will be additions or deletions that relate to matters dealt with in a number of different chapters (eg the Chapter 1 definitions), an appropriate approach to identifying changes recommended in different chapters should be considered and developed.

21. It is critical that the marked-up copy identifies the provisions that have been withdrawn by KCDC.

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22. The SEV did not do that and omitted all provisions that had been withdrawn by KCDC.

23. The result was that one could not see:

a. where there had been an inappropriate deletion or deletions (I discuss this later when I refer to the evidence of Katharine Moody); or

b. where provisions that eg only related to a certain CHMA or outside a certain CHMA have been included in a different chapter from Chapter 4 and purport to relate to an area beyond the rule’s original scope, which is ultra vires (dealt with in my earlier evidence and submissions).

24. A marked-up copy for Chapter 2 should be provided urgently to submitters to enable them to deal with Chapter 2.

COMMENTS ON THE S 42A PART A REPORT

No variation means that you are presiding over an unfair process

25. As of the Panel’s Minute 3 (dated 10 March 2016), it finally appears clear that KCDC staff have no intention of notifying a variation to the PDP to deal with coastal hazard matters. That is despite the Allan/Fowler recommendations and the Council’s resolution that there is to be a variation to the PDP.

26. Attachment 2 to the Panel’s Minute 3 states:

“Question

Has the Hearings Panel been advised of any variations to the PDP?

Answer

Yes, the Urban Tree Variation which was notified on 4 September 2015. The Hearings Panel will hear the submissions/further submissions on this Variation. The hearing schedule incorporates the necessary time.

Question

How many variations have been signaled to the Hearings Panel?

Answer

Aside from the Urban Tree Variation, there are no other Variations that the Hearings Panel is aware of. The understanding is that no other Variations are proposed at this time.”

27. The failure to progress a variation to the PDP to deal with coastal hazard matters raises a number of serious issues, which I address later.

28. The result is that submitters are trapped in, or alternatively shut out of (fully or in part), an unfair process.

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29. It also means that you are presiding over an unfair process.

30. That is an unacceptable position for everyone - submitters, the Panel and presumably KCDC too. That cannot continue and a fair process that includes appropriate rights of appeal for submitters shut out of the process fully or in part needs to be advanced instead.

31. As most of you will be aware, the RMA distinguishes between a “variation” (an alteration to a proposed plan) and a “change” (an alteration to an operative plan)2. So, when one is talking about a variation, one is referring to an alteration to a proposed plan.

32. As you will be aware, KCDC’s decision to continue with the PDP rather than withdraw it was based on the Allan/Fowler report’s recommendations. One of those recommendations was:

“At an appropriate time (or times) the Council proceeds with a variation (or variations) to include suitable and relevant policy, methods and rules in the PDP to address the district’s coastal hazards in accordance with the NZCPS, the RPS and best practice.” (underlining added)

33. At page 42, the Allan/Fowler report stated:

“We have concluded that Option 4 [continue PDP process, but modified to address plan as a whole and using “basket of tools”] is the preferred option, although by a relatively narrow margin over Option 3 [withdraw PDP and recommence the review (i.e. regard the PDP as a draft)].” (underlining added)

34. The “basket of tools” is dealt with at pages 35-36 of their report (footnotes omitted from the quote):

“A council, in progressing a notified plan, has opportunities beyond making decisions on submissions. It can also:

withdraw parts of the plan following notification make amendments to alter information, where such an

alteration is of minor effect, or may correct any minor errors vary the plan, using the RMA First Schedule process.

These opportunities can be considered as a “basket of tools”, sitting alongside the hearing and decision processes on existing submissions. Not only can the withdrawal provisions remove highly problematic parts of a proposed plan, but the variation process enables remedy of parts which have been withdrawn or omitted…”

35. The Allan/Fowler report referred to withdrawing the coastal hazard

management area provisions, progressing coastal work, establishing an advisory group and not parking the coastal hazard issue.

2 Sections 2 and 43AA.

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36. At page 51, the report said (footnotes omitted, underlining added):

“On the basis of the findings of the coastal erosion hazard assessment review we consider that the Council should withdraw the coastal hazard management areas shown as the Map Series C of the PDP, along with the whole of the text under the heading 4.2 “Coastal Hazard Management Areas” including explanatory material and policies, as well as all rules which relate specifically to the mapped coastal hazard management areas. We propose this because, while the rules do not yet have legal effect, the policy does.

An explanatory “placeholder” needs to be inserted instead which clarifies which provisions of the operative District Plan will remain in place while a variation is prepared and processed to operative status to address the requirements of the NZCPS and the RPS…

This should be done at an early stage in the implementation plan for progressing with the PDP. We consider that the Council should establish an advisory group to help it progress both the science advice, the problem definition and the policy development, including the consideration of alternative responses to the problems identified from the continued science advice. The advisory group should include representation of local people and businesses as well as agencies such as DoC and GWRC. The advisory group should work closely with the Council on all aspects, including advising on methods for engagement with affected people and other stakeholders at various stages of the processes.

Continued work on coastal hazards should be considered to be a high priority and not “parked”.”

37. But parked it has been, and is.

38. On page 52, the Allan/Fowler report says (all underlining added):

“The provisions in the operative District Plan that manage coastal hazards need to be identified and endorsed as the Council’s current statutory planning framework for the coastal area until a variation is developed and notified.

However, this is insufficient to meet national and regional policy requirements, and will be based on seriously outdated science, so the Council must proceed with work towards a variation while other work on the PDP is progressed.

A framework, timetable and budgetary allocation will be necessary. We strongly recommend the involvement of an advisory group in all steps of investigations, community engagement, and the development of policy and replacement plan provisions.”

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39. In light of the failure to advance a variation to deal with coastal hazard provisions, the final recommendation at page 54 of the Allan/Fowler report is telling:

“7. The Council only withdraw the whole of the PDP if it is unable to resource the methods we recommend for proceeding through Option 4, or if it considers the residual risks identified in section 5.6 of this report are too high.” (underlining added)

40. So, proceeding with the PDP (rather than withdrawing it and treating it as a draft) was, among other things, based on doing a variation to the PDP for coastal hazard provisions.  

41. There is also a Council resolution that there be a variation to the PDP.

42. Para 121 of the s 42A Part A report notes that at the Council meeting on 24 July 2014, Council made a number of resolutions. The resolutions are (all underlining added):

"That the Council, in relation to the report “Independent Review of the Kapiti Coast Proposed District Plan” [the Allan/Fowler report] (Attachment 2 to Report SP-14-1253):

(a) endorse the Independent report; and

(b) adopt its recommendations 1 to 6 being:

1. The Council proceed with the PDP on the basis of a modified process of hearing and making decisions which includes all elements set out in section 5.5 of this report.

2. A detailed implementation plan including resourcing and timetable is developed to progress the PDP in accordance with recommendation 1. A communications plan to keep the community informed would be a necessary part of the implementation.

3. The Council undertake a detailed review of the rules of the PDP having legal effect and clarify these provisions as soon as possible.

4. The Council resolve to withdraw from the PDP the coastal hazard management areas on the plan maps along with the associated policy section and rules, and clarify the parts of the operative district plan which provide stop-gap coverage relating to coastal hazards.

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5. The Council develop an implementation plan to progress work on the coastal erosion hazard assessment, and other aspects of coastal hazard management. The implementation should build on the work already done and incorporate adequate and appropriate communication and consultation provisions, including a role for an advisory group as described in section 6.4 of this report.

6. At an appropriate time (or times) the Council proceeds with a variation (or variations) to include suitable and relevant policy, methods and rules in the PDP to address the district’s coastal hazards in accordance with the NZCPS, the RPS and best practice”; and

(c) adopt Option 4 (continuation of the Proposed District Plan process) but reserve the ability to invoke Option 3 (withdraw the PDP) once further analysis of all submissions have been completed in November 2014…

That the Council, in relation to the report “Coastal Erosion Hazard Assessment for the Kāpiti Coast: review of the science and assessment undertaken for the Proposed Kapiti Coast District Plan” (Attachment 1 to Report SP-14-1253):

(a) endorse the Coastal report; and

(b) adopt the report’s recommendations in full…

That the Council endorse the formulation of a Coastal Advisory Group (CAG) with membership from key statutory agencies, neighbouring councils, submitters, coastal land owners and community representatives with an independent chair.

That staff develop a draft terms of reference for the Coastal Advisory Group and identify the skills / attributes of potential group members for Council consideration.”

43. While draft terms of reference were developed, CRU was not happy with the draft. CRU prepared and sent to KCDC a document dated 13 December 2014 to address CAG issues.

44. Apart from feedback from KCDC officers that indicated general support for what was in the CRU document with concerns about some details, that is where the matter has ended. No final terms of reference have been developed, no CAG has been established, no relevant coastal work has been commissioned, and now the officers are apparently asserting that no variation to the PDP is to be progressed.

45. KCDC staff have ignored the recommendations of the Allan/Fowler report and indeed the Council’s resolutions in terms of dealing with coastal hazard matters by way of a variation to the PDP.

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46. The FAQs on KCDC’s website indicated that KCDC is (or, more correctly, the officers are) contemplating waiting until the PDP is operative and keeping some provisions from the existing Operative Plan as well in some type of confusing and confused process of jumbling the two together.  See the FAQs about coastal hazard provisions at http://www.kapiticoast.govt.nz/Your-Council/Planning/District-Plan-Review/DPR-FAQs/#future.

47. The FAQ concludes “For these reasons, any revised coastal provisions are not expected to be notified until 2019."

48. I note that Attachment 2 to the Panel’s Minute 3 includes:

“Question

Have elements of the operative District Plan (ODP) been ‘folded into’ the PDP?

Answer

No. However, where there were existing provisions in the ODP that covered matters withdrawn from the PDP, these operative provisions remain in force until such time that new provisions are proposed and publicly notified.”

49. I presume that the Panel is relying on what you have been told by KCDC officers rather than the answer being a statement of the Panel’s opinion of what is correct in law. It might be useful for the answer to be revised to include such a qualification.

50. In my view, the answer is incorrect both:

a. if it is inferring the appropriateness of the “composite” plan approach as the officers seem to contemplate such an approach; and

b. if it is inferring that public notification of new provisions would mean the end of any Operative Plan provisions.

51. The s 42A Part A report says:

“135. The Council overall remains in a full review of the Operative District Plan, and until new coastal hazard and hazardous substances and facilities provisions become operative, the Operative District Plan provisions relating to those topics will remain in force. The RMA contemplates that district plans can be a 'composite' plan made up of sections that are approved at different times and through successive planning processes, and therefore there will be no regulatory gap.

136. Once the PDP is made operative, it will not displace all of the provisions of the Operative District plan, especially areas that are not covered by the PDP as a result of the withdrawal. While there may have been a 'full district plan review' commenced initially, due to the withdrawals the Council is now not advancing a full replacement plan notified all at once as the coastal hazard provisions are being progressed on a later programme and timeframes.

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137. All points of submission (and in some cases the full submission) will effectively fall away and no longer be considered as the provisions to which they relate have been withdrawn.”

52. The issue is not, as referred to in para 135 of the s 42A report, an issue of “regulatory gap”.

53. The issues are:

a. appropriate coastal hazard provisions, including coastal hazard mitigation provisions, in the PDP;

b. for submitters, and you, to know a variety of matters including:

i. what exactly is it that is being contemplated and advanced?;ii. what are the precise provisions and the precise wording of the

whole package?;iii. how is the whole package supposed to fit together?;iv. how, as a matter of law, is the whole package legally valid?

54. In para 308 of my earlier evidence and submissions, I identified a range of issues resulting from the way in which coastal hazard matters are dealt with in the FAQs on KCDC’s website. That range of issues is also relevant here.

55. My earlier evidence and submissions addressed s 73(1) of the RMA which provides that a district is to have 1 district plan. District plan is defined in the RMA to mean an operative district plan3.

56. In my opinion, KCDC officers are misunderstanding the law.

57. While the RMA does contemplate that parts of an operative plan can be reviewed in parts, it does not in my view sanction a “composite” plan of the type that the officers seem to be contemplating. The officers seem to be contemplating the PDP becoming a separate operative plan document with bits from the Operative Plan somehow remaining in effect in a separate partial Operative Plan. It is all rather confusing to me.

58. However, they have never been particularly clear about exactly what they are contemplating and it needs to be made clear now. It is unfair for submitters having to try to guess what officers are contemplating.

59. I suspect that the officers themselves are not sure what exactly is being contemplated or how it actually works in practice, given that the PDP does contain provisions that are relevant to, and restrict, coastal hazard mitigation activities.

60. There is no evidence about the bits of the Operative Plan that are to be saved. There is no legal opinion provided to support the “composite” plan approach. There is no evidence as to how specifically it is to occur, considering the detail of the PDP and the Operative Plan provisions. There is no evidence setting out what the whole “composite” plan is to be. Submitters are left in the dark trying to understand what KCDC officers are contemplating

3 See ss 2 and 43AA.

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and how as a matter of law it is to occur and exactly what provisions KCDC officers are purporting to say will be in place.

61. While it is my opinion that the “composite” plan approach as contemplated by the officers is fatally flawed, I at least had an open mind that I might be wrong and that KCDC officers might be relying on some case authority to support the “composite” district plan approach.

62. I also suspected that if KCDC was relying on case authority, it was probably distinguishable from the PDP situation.

63. So, I asked for the case authority.

64. The response I received was:

“While there may have been a full district plan review commenced, the Council is now not advancing a full replacement plan.  As is the case in Wellington City which has taken a rolling review approach, the district plan can be made up of different components approved at different times.  Rather than ‘case authority’ the Council and its legal advisors are satisfied this is consistent with section 73(1) of the RMA.”

65. My response to that was:

“Thank you for your email, but my dismayed reaction is “Oh dear!”.  In my opinion, this is yet another matter where KCDC and its advisers are wrong, if KCDC thinks that it can make the PDP operative as a separate document and keep bits of the Operative Plan in a separate document.  More and more fish-hooks …”

66. The FAQs on the KCDC website set out bits of the Operative Plan that are purportedly to be continued. Those bits are not even a section of the Operative Plan that is readily identifiable - but bits from scattered areas of the Operative Plan.

67. The FAQs make no reference to what objectives, if any, are to be saved.

68. The s 42A Part A report says (underlining added):

“128. The land that was covered by Coastal Hazard Management Areas overlays in the PDP is still covered by an underlying PDP zone such as Beach Residential. The coastal hazards will continue to be addressed by the Operative District Plan while the coastal hazards research continues until replacement coastal hazard provisions have progressed through a Schedule 1 process and the district plan review is complete. The enduring coastal provisions of the operative District Plan are discussed in more detail in the Section 42A report Part B addressing the coastal provisions of the PDP.

129. Section C9 of the Operative District Plan contains objectives and policies regarding the coast and addresses issues such as coastal amenity, natural character and hazards. Only the policies relevant to the management of coastal hazards will be retained while the coastal hazard approach is revised.”

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69. It is troubling that what was supposed to be a stop-gap measure until a variation was notified is being asserted by the officers as what is to be the operative situation. This seems to be being advanced without any Council sanction or indeed any consideration of the range of problems caused by the approach.

70. If KCDC had notified a change to the Operative Plan to address relevant parts of the Operative Plan, it would be clear what the Council intended to retain in the Operative Plan and what parts of the Operative Plan the Council was intending to change. It would be clear exactly what those changes are. It would be easy for everyone to see what the whole package would look like. But that is not what KCDC did. And now the officers are purporting to say what is to remain from the Operative Plan. In my opinion, that is highly inappropriate.

71. KCDC notified a whole new PDP. Parts of it were problematic and have been removed. The Council resolved to deal with the problematic parts by a variation to the PDP, which was the right thing to do. But the officers have unilaterally, and inappropriately, decided not to do that.

72. So we all find ourselves in somewhat of a muddle, it seems to me.

73. It also seems apparent that the officers have not considered the fact that it is not correct to say, as is asserted in para 128 of the s 42A report that “The coastal hazards will continue to be addressed by the Operative District Plan …” (underlining added).

74. That infers that they are not being addressed by the PDP and that is incorrect. There are numerous general provisions in the PDP, including rules, that address coastal hazards and affect coastal hazard mitigation activities, as already discussed in my earlier evidence and submissions.

75. Chapter 2 Objectives is the next topic for the PDP hearing. Contrary to the Allan/Fowler report and the Council’s resolution adopting the recommendations of that report, the parts of the Coastal Environment objective dealing with coastal hazards have been removed. Submissions on those provisions have failed. Those submitters do not have standing to address their comments on the appropriate wording of a coastal hazard objective.

76. How is an appropriate coastal hazards objective to be advanced?

77. Policies 24-27 of the NZCPS deal specifically with coastal hazard matters and the RMA requires a district plan to give effect to the NZCPS.

78. The removal of provisions that would give submitters standing to address an appropriate objective is problematic as is the failure for submitters to be able to participate in the hearing process to develop the wording of such an objective.

79. It seems to me that there are serious problems both for the PDP and for this hearing process.

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80. Submitters should not be in the position of having to:

a. fossick around on KCDC’s website;

b. try to guess what KCDC, or more correctly the officers, are doing and the legal basis upon which they are purporting to do it; or

c. find themselves without standing to address matters of concern either before the Panel or in an appeal to the Environment Court.

81. The problems that have been caused include:

a. Chapter 4 Coastal Environment dealt with coastal hazard matters and the Chapter 2 objective on the coastal environment included provisions relevant to coastal hazards. Those provisions were relevant to coastal hazard matters in the “Living Environment”, “Rural Environment” and Open Coast zones and they have been withdrawn;

b. Submissions on those matters have fallen away, with the result that those submitters no longer have standing to address coastal hazard matters;

c. KCDC officers say that coastal hazard matters will continue to be addressed by the Operative Plan;

d. But the PDP includes a number of provisions that, while drafted generally, affect coastal hazard mitigation activities. This includes the Chapter 8 Open Space zone provisions and the Chapter 3 provisions eg relating to earthworks;

e. KCDC officers have failed to realise that the PDP has such provisions. They have failed to consider the detail of what they are seeking to advance and how it actually would work;

f. KCDC work has continued to occur in silos with no one looking after the whole farm in any effective way;

g. Most submitters concerned with coastal hazard matters focussed on Chapter 4, not Chapters 3 or 8. In that regard, it needs to be remembered that the PDP as notified was in a very poor state and those making submissions were significantly disadvantaged in trying to figure out the PDP, identify the issues, and make submissions to address all relevant matters in the time allowed;

h. If the Chapter 4 submissions on eg the rules had remained in effect, those submitters would have been able to point out that there were eg provisions in Chapters 3 and 8 that were relevant to Chapter 4 matters. Problems with the interrelationships could have been fixed as consequential amendments to Chapters 3 and 8 or by revising the wording of Chapter 4 to make it clear that the Chapter 4 provisions prevailed over eg those in Chapters 3 and 8;

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i. But Chapter 4 submitters have no standing eg in terms of the wording of rules as the relevant Chapter 4 rules have been withdrawn. So they have no ability to address the problems caused by eg Chapters 3 and 8 for previous Chapter 4 coastal hazard matters;

j. Chapters 3 and 8 of the SEV do not appropriately address coastal hazard mitigation activities. CRU and others have pointed out the problems to KCDC officers as I have already addressed in my earlier evidence and submissions;

k. Section 42A reports for Chapters 3 and 8 may come up eg with new policies or rules for coastal hazard mitigation activities, but people will be taken by surprise. The s 42A report will be the first time any such provisions will have be seen. There will have been no advance notice, no opportunity for submissions to be made on the provisions, no opportunity for further submissions and no time to refect;

l. The Chapter 4 submitters will not have standing to address the provisions;

m. Many Chapter 4 submitters may not even know that Chapters 3 and 8 are relevant to coastal hazard matters. Most coastal submitters will be assuming that there is nothing for them to be concerned about until CAG is formed, the coastal scientific work is progressed, and a variation is advanced;

n. In my earlier evidence and submissions, I have basically asked the Panel to fix the problems eg in Chapters 3 and 8, but that also creates a number of problems;

o. The hearing process does not enable sufficient time for people to address provisions where they are taken by surprise, but that could probably be remedied by the Panel providing more time, directing or recommending discussions between the officers and submitters and adjourning hearings to enable proper time for reflection;

p. Chapter 4 submitters will not even be at the relevant hearings but, as I said in my previous evidence and submissions, the Panel could invite Chapter 4 submitters to attend the hearings so that also might be able to be remedied;

q. Chapter 4 submitters are the ones most interested in coastal hazard matters, including coastal hazard mitigation activities. The removal of the Chapter 4 rules means that Chapter 4 submitters no longer have standing to address those rules. Now it is the general provisions in eg Chapters 3 and 8 rules that effectively deal with coastal hazard matters (albeit ineptly).

r. Chapter 4 submitters will have no standing to appeal what, if anything, the Panel might recommend for Chapters 3 and 8 in relation to coastal hazard matters, including coastal hazard mitigation activities. I cannot see how that can be remedied by any actions of the Panel.

s. The result of all of the above is unfair.

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82. The consequence is that you are in the position of presiding over an unfair process.

Only independent commissioners for Chapter 4

83. Para 151 of the s 42A - Part A report refers to the Council resolution to appoint only independent commissioners to hear Chapter 4. I deal with this later in relation to the Part B report.

Is the PDP really ready for hearing?

84. Section 6.4 of the s 42A Part A report deals with continuation of the PDP process and the PDP’s readiness for hearing.

85. It states:

“6.4 Continuation of the PDP Process

156. On 10 December 2015, Council considered the readiness of the PDP in order to commence hearings. The report to Council considered that the recommendations outlined in the independent review report [the Allan/Fowler report] have either been addressed, or are in the process of being addressed. Officers saw no impediment at this stage to commencing substantive hearings in April 2016.” (underlining added)

86. In light of now knowing that Council officers do not intend to advance a variation to the PDP to deal with coastal hazard matters, that paragraph in the s 42A report is rather startling.

87. I have looked at the report to Council.

88. The report to Council states:

“Hearings Readiness

9  The Council released the Submitter Engagement Version (SEV) of the PDP on 15 June 2015. The SEV has formed the basis for discussion and workshops with submitters over the last six months to manage the process where submitters and council planners and chapter leads are brought together to clarify issues and/or reach agreement. There remain several areas of on-going discussion with submitters and the intention is to complete these discussions by February 2016.

10  Officers have assessed the state of “readiness” in order to commence hearings. The recommendations outlined in the independent review report have either been addressed, or are in the process of being addressed. Officers see no impediment at this stage to commencing substantive hearings in April 2016.

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11  Officers and chapter leads have reviewed the quality of the evidence base required to support hearings, and are confident that there is sufficient and adequately robust information to prepare section 42A reports and to proceed to the hearings phase.

12  The formation of the Coastal Advisory Group (CAG) and further coastal hazard investigation work has not progressed, with the focus being on advancing the live aspects of the PDP through the hearings process. Also, with work occurring at central government and Greater Wellington Regional Council levels, further Kāpiti Coast District Council work should await the outcome of decisions that are yet to be made.”

89. That report asserts that the recommendations in the Allan/Fowler report “have either been addressed, or are in the process of being addressed”. That is patently incorrect.

90. No variation had been addressed and it has now finally become apparent that the officers were not in the process of preparing a variation either and indeed have no intention of preparing one.

91. There is no recognition in that report of the range of adverse consequences of not advancing CAG. It seems that it may have been as late as December 2015 that the Council officers have told the Council that the resolution in relation to CAG has not been advanced at all, but perhaps there is an earlier report to Council that tells the Councillors that.

92. Significantly, there is no reference at all in that report to Council that the officers had decided not to advance a variation. There is no recognition or explanation of the range of adverse consequences of not advancing a variation or how to deal with any of those adverse consequences.

93. It seems increasingly apparent to me that the PDP is not ready for hearing.

Poor consultation

94. The s 42A report deals with consultation.

95. I have been around the block enough times to know that, when things go wrong, submitters always complain about lack of consultation and a Council always says that appropriate consultation has occurred. A Council usually has a long list of “achievements” in terms of its consultation documentation to demonstrate to the decision-maker just how thorough its consultation has been. Given my LLM thesis topic on public participation, I have often wondered how it can be that two sides, both engaged in the same process, can see the same process so differently.

96. It is fascinating, but unpleasant, to find myself as an affected person in such a process.

97. I know that the RMA does not require the Council to consult with affected people and that the Council has done more than the statutory minimum in terms of “consultation”.

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98. Having recently been introduced to the concept of “collaboration” (by Katharine Moody, who has been engaged by CRU to give evidence) and its emergence as a concept in the public participation process, I believe that may well be the essence of the difference in perspective between the Council and people who are affected by the Council’s actions.

99. The Council’s approach was to go through the motions of “consultation”. Those affected want collaboration and an ability to work together to resolve the issue.

100. As there’s no point crying over spilt milk, I will deal only briefly with what the s 42A report says about KCDC’s decision not to provide a draft of the PDP for comment before its notification.

101. The s 42A Part A report says at para 25 that:

“In mid-October 2012, nearly 200 letters were sent to individuals or organisations who had expressed an interest in the District Plan Review, providing an update on the process and the existence of the 28 September working version of the draft District Plan provisions on the Council’s website.”

102. The s 42A report does not:

a. explain that the draft was only put on the website after complaints from people about the lack of a draft;

b. explain that public comments were not sought; or

c. explain that the decision to notify the PDP was made on 22 November so there was no time to deal with comments between mid-October and November in any event.

103. One thing that I did not tell you in my earlier evidence and submissions is that I attended the 22 November 2012 Regulatory Management Committee meeting where the decision to notify the PDP was made. Having had a short opportunity to look at the draft on the website, in my 3 minutes of public speaking time, I begged KCDC not to notify the PDP. My comments included the following:

“Please do not publicly notify this draft plan. Correcting errors and making changes are much more difficult once one is into the statutory process. Why not use this draft plan as a basis for consultation with the community, get some informal feedback, iron out the errors, get a handle on how likely it is that Dr Shand’s lines could potentially occur in real life, get some legal advice about whether as a matter of law the precautionary principle has been given too much emphasis in the modelling, get some focus among the experts and affected people (many of whom are experts in their own right) and then have a publicly notified plan that will not get the Council mired in years of court battles? …

Battling it out in court hardly seems productive or cost-effective. If ever there was a time for cups of tea and cool heads, now is the time.

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Otherwise, ratepayers are likely to be faced with yet another budget blowout from a project that started out as a district plan review and has now turned into a full-blown proposed district plan, seemingly with battle lines being formed and errors in the plan already identified. That is not constructive.”

104. The ineffectiveness of the consultation process is demonstrated by what has occurred following notification of the PDP including the public outcry from the rural and coastal communities, the Allan/Fowler report, withdrawal of a number of provisions of the PDP and the maps including coastal hazard management areas and the related provisions (and also some inappropriate withdrawals not contemplated by the Allan/Fowler report or the Council’s resolution eg ones that do not relate to coastal hazard management areas), correction and reduction of the list of rules that take immediate effect, the publication of the Submitter Engagement Version, and the failure of the SEV to resolve numerous outstanding issues.

105. Paras 148-150 of the s 42A Part A report addresses “consultation processes post-notification” on the SEV.

106. As set out in my earlier evidence and submissions, on 19 November 2015, on behalf of CRU and others, I emailed KCDC a number of without prejudice documents, including marked-up changes to a number of provisions.

107. On that same date, I also requested a meeting. My email said:

“Perhaps once you have all had a chance to consider the material, we could all meet to discuss the issues.”

108. The meeting was held on 4 February 2016. It was constructive that there were a number of chapter leads at that meeting and we appreciated that.

109. The meeting was cordial and collaborative. It was clear that the officers had considered the material. But the meeting did not result in narrowing of the issues or feedback from the officers as to what they did or did not agree with in the material that I had provided on behalf of CRU and others. The meeting minutes identify the lack of feedback from the officers.

110. It is apparent that any feedback is only likely to occur in s 42A reports, which is late in the process and gives little time for experts to address the issues.

111. CRU’s submission asked for pre-hearing meetings and mediation. It said:

“CRU requests that the Council hold pre-hearing meetings and associated mediation pursuant to clause 8AA of the First Schedule to the RMA on the matters in this submission ahead of the hearing, with a view to attempting to narrow the issues in dispute, leading to a more efficient and cost-effective hearing process.”

112. The failure of the SEV consultation process to provide any helpful feedback from the officers is disappointing. The SEV consultation process has failed to narrow the issues in dispute so that all of the issues raised by CRU in the material provided on the SEV remain “live”.

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The PDP does not give effect to the NZCPS

113. Paragraph 49 of the s 42A Part A report asserts that:

“The New Zealand Coastal Policy Statement (NZCPS) is also being given effect to. Its purpose is to state policies in order to achieve the purpose of the Act in relation to the coastal environment of New Zealand. The NZCPS is a particularly relevant document for the Kāpiti Coast District, where the overwhelming majority of the built environment lies within the coastal environment.

114. The PDP is required to, but does not, give effect to the NZCPS in relation to coastal hazard and coastal hazard mitigation matters. Neither does the SEV. I have discussed this in my earlier evidence and submissions and elsewhere in this document.

GWRC’s Proposed Natural Resources Plan (PNRP)

115. The s 42A report states:

“58. In preparing the Section 42A reports, Council planners have been working with Greater Wellington Regional Council to avoid inconsistencies with the Proposed Natural Resources Plan where the scope of submissions allows.”

116. The s 42A report makes no comment about considering what submissions have been made to GWRC opposing any provisions that KCDC might be looking at.

117. Working to avoid inconsistencies with a proposed plan in its early stages if there are submissions opposing some provisions is a practice that is accompanied by some risk and would need to be undertaken with care.

118. In my submission:

a. the Panel should treat any provisions altered to be consistent with the PRNP with care; and

b. the relevant s 42A report should identify if there have been any submissions (or further submissions which are due on 29 March) on the relevant provision(s) as well as ay general submissions on the PRNP that might affect the provision being relied upon by KCDC officers to create consistency.

119. There is little point creating consistency with a provision that has the potential to change.

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Inappropriate withdrawal of some provisions from the PDP

120. I have read Katharine Moody’s evidence under the heading “Standard of care in withdrawing coastal hazard management area provisions” in terms of the way in which it appears the withdrawal of the coastal hazard management area and related provisions has occurred.

121. The Council resolution is:

“The Council resolve to withdraw from the PDP the coastal hazard management areas on the plan maps along with the associated policy section and rules and clarify the parts of the operative district plan which provide stop-gap coverage relating to coastal hazards.”

122. The resolution refers to

a. coastal hazard management areas on the plan maps; along with

b. the associated policy section and rules.

123. There is no reference to withdrawing objectives but KCDC has withdrawn part of the Coastal Environment objective.

124. In addition, a consequence of the approach adopted is that in Section 4.1 of the PDP when describing Policy 1 Extent and characteristics of the coastal environment of the NZCPS is now incorrect.

125. Policy 1 of the NZCPS refers, at (d) to “areas at risk from coastal hazards”.

126. However, KCDC has withdrawn from the PDP the reference to “areas which are at risk from coastal hazards” so the description of Policy 1 is wrong.

127. It is therefore necessary for the marked-up copy of the PDP as recommended to be changed by officers show what has been withdrawn from the PDP. Some of it needs to go back into the PDP. COMMENTS ON THE S 42A PART B REPORT

128. In this section, I set out extracts from the s 42A Part B report and my comments on those extracts. In all cases, the underlining is added. The extracts are in italics to help to distinguish the extract from my comments.

Para 180 - definitions of map notations

“180. In terms of Submission 451.6 Rob Crozier and Joan Allin, the reason some specific definitions have been provided in chapters other than Chapter 1 is that they only apply to that chapter. However, I agree that central reference point such as the Chapter 1 list of definitions would be useful where appropriate. In terms of Submission 451.6 Rob Crozier and Joan Allin, I also do not generally consider definitions of map notations necessary, because they are generally explained by the policies creating them (e.g. zones). Explanations in the policies have been reviewed to ensure these can satisfactorily inform the map notations.”

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129. Definitions of some of the map notations would help the reader to identify in

what chapter or provision the relevant material is located.

130. When considering what might be relevant to the stream mouth cutting of the Mangaone Stream, it was not clear to me where some of the map references were discussed. I first looked in Chapter 4 Coastal Environment but some weren’t there. I eventually found them in Chapter 3 Natural Environment.

131. A good definition would have sent me efficiently to the relevant chapter or provision. Having to fossick around the PDP to find the provision added to my irritation and was unnecessarily time-consuming.

132. Having information in a policy does not assist the reader in getting to the relevant policy in the first place.

133. What I mean by a definition is not what the map reference actually means, but where in the PDP a person should go to find out. So, what I’m really talking about is a directional signal.

134. For example, the RMA includes many defined terms in the interpretation section 2 where the actual definition is not in section 2; instead s 2 refers the reader to another section (see eg the definition of abatement notice or accredited or many other similar definitions) so something in the definitions section that takes you efficiently to the relevant location. That is what I consider should exist in the PDP for the map notations or at least the map notations where the location of the provision isn’t obvious. (The location of the Chapter 5 - 8 zone notations seems to be obvious enough.)

Para 182 - cross-references, Chapter 1 description of the chapters

“182. With regards to Submission 451.122 Rob Crozier and Joan Allin’s request to include cross-references, I consider that there is generally an adequate level of cross-referencing in the PDP. However, opportunities to strengthen or clarify cross-references will be taken and promoted within specific chapter-based Section 42A reports. As outlined in Chapter 1: Introduction and Interpretation, Chapters 3-8 contain Policies, Rules and other Methods which apply to specific environments while Chapters 9-12 apply to matters that are relevant throughout the District. This structure was developed to assist plan users with determining which chapters relate to any given zone as well as those provisions that apply District-wide…” (underlining added)

135. I disagree with the assertion that the PDP has adequate cross-referencing but I have already addressed that in my earlier evidence and submissions.

136. In relation to the statement underlined above about what is in Chapter 1, what is outlined in Chapter 1 is odd and outdated. It is based on the flawed, unworkable concept in the PDP of dealing with the district in terms of various “environments” ie natural environment, coastal environment, living environment, working environment, rural environment (and, ironically, open space rather than open space environment). That concept does not work, which is why the officers in the SEV have taken steps to change the inappropriate wording. In addition, the wording in Chapter 1 fails to distinguish between the zone chapters and overlay chapters.

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137. Chapters 5 to 8 are the zone chapters. The others are overlay chapters that include provisions that apply across various zones or indeed district-wide.

138. You may wish to reconsider the appropriateness of the Chapter 1 wording and replace it with wording that distinguishes between Chapters 5-8 and the others.

139. You may also wish to reconsider the appropriate order of the chapters in the PDP. From my perspective, the zone chapters should come first and be followed by the overlay chapters.

Para 189 - Operative District Plan provisions dealing with coastal hazards

“189. With respect to coastal hazard provisions, they were withdrawn from the PDP and will be subject to a Schedule 1 process to complete the district plan review. Therefore, those parts of the Operative District Plan which are relevant to coastal hazards are to remain in place until the district plan review is complete. This will be discussed further within the Section 42A report for Chapter 4.”

140. I have already addressed the issue of the Operative District Plan in my earlier evidence and submissions and earlier in this document.

141. Chapter 4 is too late for a s 42A report to address which “parts of the Operative District Plan” are to remain in place. Submitters need to know that information now. The Operative Plan does not have a neat and tidy “part” or “parts” that deal with coastal hazards so what is being referred to is not clear.

142. What is purported to remain in place in the Operative Plan is critical to understanding the adequacy of the PDP and being able to participate in the PDP hearings in an informed way. It is the whole package of the PDP and the purported Operative Plan provisions that needs to be considered to determine the adequacy of the PDP.

143. What exactly is purportedly to remain in place in the Operative Plan and to what exactly are the provisions to apply? What objectives? What policies? What rules? What maps? In what chapter or chapters of the Operative Plan are they? To what zones or areas do they apply? Para 308 of my earlier evidence and submissions identified a range of other issues and that range of issues is also relevant here.

Paras 190 - 192 - plan to be considered in its entirety to ensure no inconsistencies or unintended consequences

“190. I agree that the plan needs to be considered in its entirety to ensure that there are no inconsistencies and unintended consequences. The hearings panel will be supported by a decision writer, who will help to ensure that these issues are addressed and some indication of the issues to be addressed is provided in the following paragraphs.

191. Particular issues to note include the consistent use and application of terms across the plan such as:

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floor, total floor, gross floor building, new building and structures height and height envelope Site / lot / property / boundary Subdivision, land use and development Shall / will and must and / or / and/or terms such as transport assessment and traffic assessment adjoining / immediately adjoining appropriate use of avoid, remedy and mitigate living environment and living zones

192. Some of these terms, such as the use of site / lot / property will be considered as part of the Chapter 5 Section 42A report and will need to be applied consistently across the PDP.”

144. If I understand correctly what the officer is saying in relation to the list of items and the role of the decision writer, I am concerned.

145. The officers have had a lot of time to address most of the list. I have drawn most of the items on the list to the attention of the officers in my without prejudice draft evidence dated 25 September 2013 and in the meeting on 8 May 2015, both of which are discussed in my earlier evidence and submission.

146. Most of the items on the list in the s 42A report should have been fixed by now. The resolution should be in the relevant s 42A reports and marked-up copies of the relevant chapters so submitters can see if they agree with the revised wording that the officers are recommending.

147. If submitters do not object to the revised wording, the list of provisions should not be something to trouble the Panel other than noting and approving the recommended changes, unless you identify issues of concern to you. In that case, those concerns would presumably be put to the relevant officer and submitters so they would have an opportunity to address the Panel’s concerns.

148. It is troubling that the officers:

a. seem to have identified few wording problems beyond the ones already pointed out to them long ago, but that is not surprising given the silo approach adopted in the work;

b. apparently have not already remedied the problems;

c. seem to think that the Panel or, even worse, a “decision writer” should now have to do so, with no opportunity for submitters to comment on whatever solution is proposed.

149. I trust that the Panel will be clear as to whose role it is to do what.

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150. I trust that a decision writer will not be providing what would effectively be substantive, behind the scenes, untested evidence to the Panel in terms of wording inconsistencies, with no opportunity for submitters to comment.

151. I also trust that the Panel will ensure that submitters have an opportunity to comment on any solutions that are not addressed in relevant s 42A reports.

152. If I have understood the officer correctly and the list of matters has not already been remedied by the officers with wording to appear in s 42A reports and marked-up provisions of chapters, that is a powerful signal that the PDP is not ready for a hearing.

153. The foreshadowed failure to provide the recommended solutions in s 42A reports to the list of wording problems and in marked-up copies of relevant chapters is unfair to submitters.

154. Finally, in terms of the statement that “Some of these terms, such as the use of site / lot / property will be considered as part of the Chapter 5 Section 42A report and will need to be applied consistently across the PDP”, there seem to be a number of issues, including:

a. it is not clear whether the s 42A reports will do this or if the officer is suggesting that the Panel will need to do this;

b. if there are terms that will be considered as part of the Chapter 5 s 42A report, how are submitters in chapters that are heard before Chapter 5 to be in a position to comment on whatever is addressed in Chapter 5?;

c. how are submitters for chapters other than Chapter 5 to be in a position to comment on whatever is addressed in Chapter 5?;

d. what consideration has been given to fairness to submitters in all of the chapters if terms that are relevant across the PDP are only to be addressed in Chapter 5?

155. It seems to me that whatever is to be dealt with in Chapter 5 should have already been addressed and resolved by the officers. Their recommended changes should appear in all relevant s 42A reports. Submitters in all relevant chapters should be able to see what is being recommended and be able to comment on it.

156. The Panel would then be in a position to make an informed decision, having heard from all relevant parties.

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Para 196 - timing of cross-referencing

“196. Amendments to improve/refine other cross [sic] referencing in the PDP could be addressed either in the plan or in a plan user’s guide, but this cannot occur until such a time that the hearings panel have met and recommended their amendments to Council; otherwise cross [sic] references could be made to provisions that have been suggested for removal or changed substantially. The same also applies to the summary table that was recommended for removal in the SEV version of the PDP.”

157. It is inappropriate to suggest that cross-referencing in the PDP can occur after the Panel has made recommended amendments to the Council. The fact that some provisions might be removed or changed substantially does not alter the appropriateness of providing cross-referencing now. All that means is that some of the cross-references might need to be altered. Submitters need to have the opportunity to comment on cross-references.

158. It seems that the officers may not have had the time or inclination to prepare appropriate cross-referencing so are coming up with reasons as to why the preparation of cross-references should be delayed.

159. Relevant cross-references should be in the PDP, not in a users’ guide. KCDC has a demonstrated problem with interpreting its own documents eg the guide that it prepared recently about tree trimming is wrong. If there are relevant cross-references, people should not be at risk of an ex-statutory document prepared by officers providing incorrect information.

160. Submitters need to be able to comment on cross-references. The foreshadowed failure to provide them in s 42A reports and marked-up versions of the chapters is unfair to submitters.

Para 254 - how the chapters in the PDP are organised

a. “254. In terms of submission 212.1 Quicksilver Enterprises (Replaces The NZ Anglican Church Pension Board) and 451.123 Rob Crozier and Joan Allin, I agree that some changes to the structure would be helpful. The chapters are broadly divided into two categories: those applying to specific environments (Chapters 3- 8) and those applying to matters that are relevant throughout the District (Chapters 9-12). While the former are focused on ‘environments,’ it is important to note that these chapters also contain Policies and Methods that apply District-wide. The structure of the PDP has been developed to avoid unnecessary duplication while still achieving the requirements of a District Plan as set out in Section 75 of the RMA.”

161. I have already addressed above the fact that the way in which the PDP addresses the “specific environments” is unworkable and inappropriate. The text in para 254 seems to rely on Chapter 1 wording without apparently realising the inappropriateness of the wording.

162. I have already noted the difference between the zone chapters and the overlap chapters and that, in my view, the zone chapters should come first in the PDP followed by the overlay chapters. That would mean that Chapters 3 and 4 would be moved further back in the PDP.

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Paras 266 - 271 - full Panel would seem to be acting ultra vires in dealing with Chapter 4

“266. The purpose of the hearings commissioners is to hear submissions and evidence and recommend to the Council changes to the PDP as a result of the submissions. At the Council meeting on the 31 January 2013, the Council resolved to appoint independent commissioners for specified coastal provisions which will be subject to a future Schedule 1 process; however the Council has not appointed the commissioners as yet. The resolution noted that the appointment of independent hearings commissioners for other areas of the PDP may also be considered. The Council resolution was as follows:

KCDC 13/1/324 COASTAL HAZARDS: CLOSING DATE FOR SUBMISSIONS AND APPOINTMENT OF COMMISSIONERS (SP-13-801)

That Council resolves that ONLY independent commissioners be used to preside over hearing of submissions associated with Chapter 4 – Coastal Environment of the PDP (including any policies referred to in that chapter, and to coastal hazard spatial information shown on planning maps 1C, 2C, 4C, 5C, 6C, 7C, 8C, 9C, 11C, 14C, 16C, 17C, 18C, 19C, and 24C)…”

163. The s 42A report asserts that “At the Council meeting on the 31 January 2013, the Council resolved to appoint independent commissioners for specified coastal provisions which will be subject to a future Schedule 1 process…”.

164. However, that is not what the Council resolution says. 165. The 31 January 2013 Council resolution (interestingly, moved by Councillors

Cardiff and Ammundsen) says:

“That Council resolves that ONLY independent commissioners be used to preside over hearing of submissions associated with Chapter 4 – Coastal Environment of the PDP …”. (the upper case on ONLY is original)

166. There is nothing in the resolution about any future Schedule 1 process. The resolution specifically refers to Chapter 4 of the PDP.

167. In addition, that 31 January 2013 resolution could not say anything about any future Schedule 1 process as there was no such thing then in the Council’s contemplation. As para 136 of the s 42A report identifies:

“Council also commissioned an Independent Review of the PDP in October 2013 prepared by Sylvia Allan and Richard Fowler QC”. (underlining added)

168. It was only after that report was completed ie June 2014 that the Council resolved to deal with the coastal hazard provisions by way of variation(s) to the PDP - and currently the officers have unilaterally decided to ignore that resolution of the Council.

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169. As a result, it seems that the whole Panel would be acting ultra vires, or at least open to legal challenge, if it were to make decisions on Chapter 4 as the Panel includes members who are not independent commissioners.

170. It is not desirable to leave the Panel open to challenge when it is easy to remove that risk.

171. Rather than inappropriately purporting to reinterpret the resolution, it seems to me that Council officers should have taken steps to have the 31 January 2013 resolution revisited. They should do that now, before the Chapter 4 hearing.

172. Council’s resolutions should be consistent and clear so that the entire Panel can deal with Chapter 4 matters without any risk of a challenge.

Paras 307 - 310 - pre-hearing meetings:

“307 Submission 132.1 Kapiti Coast Chamber of Commerce seeks a pre-hearing meeting between the Council and the Chamber to discuss issues and ensure a better mutual understanding. Submissions 715.2 Sharif Family Trust also supports the use of pre hearing meetings to help ensure a more effective and cost efficient hearing process. This is supported by Further Submission 48 Bunnings Ltd.

308 A similar request is made by Submission 378.2 Coastal Ratepayers United (CRU) and Submission 631.2 Michael Alexander who seek the provision of pre-hearing meetings and associated mediation pursuant to clause 8AA of the Schedule 1 to the RMA. Submission 378 Coastal Ratepayers United’ (CRU) entire submission is supported by Further Submissions:

128 Kotuku Park Ltd 206 Shona Moller 207 Bryce Moller 210 Moxon Trustee Company Ltd 211 Roger Quayle 213 Ray Moyon 214 Christopher Turver 215 Paul Ingram 216 Michael Mealings 217 Stephen Barr 220 Sharif Family Trust 221 Paul and Grace Dunmore 222 Ian Baker 223 Gerald Parsonson 224 Jan Toohey 225 Wendy Masters 226 Michael Weir 229 Ken Moselen 230 Heather Paul and Peter Jones

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231 Dean and Vendulka Tutton 232 Warwick and Wendy Gibson 233 Shaun McCarthy 236 DUNE (Dune Restoration Group Paraparaumu Beach) 237 Steve and Elly Simpson 238 Klaas and Suzanne Van Dalen 240 Andrew McIntyre, all of which supported Submission 378 in its entirety

3.6.14 Assessment

309 Clause 8AA of Schedule 1 of the RMA enables meetings between anyone who has made a submission on a proposed policy statement or plan to meet with the local authority or such other person as the local authority thinks appropriate. This can be requested by a submitter or at Council’s initiative. Significant engagement has taken place between submitters ad [sic] Chapter Leads following the publication of the Submitter Engagement Version of the PDP in June 2015…

3.6.15 Recommendations

310 I recommend that the following Submissions be rejected insofar as they are not seeking relief but pre [sic] meetings which are enabled by Schedule 1 to the RMA that allows meetings between anyone who has made a submission on the proposed policy statement or plan and the local authority. This is a procedural matter and does not require a decision by the hearings panel…”

173. You will see that there are numerous further submissions supporting CRU’s request for pre-hearing meetings and mediation.

174. I have been helping CRU with the SEV, and engagement with CRU in relation to the SEV has been somewhat problematic in terms of getting feedback from the officers and narrowing the issues.

175. In addition, as noted in my earlier evidence and submissions, material that had been sought from KCDC in terms of what provisions enabled soft or hard engineering coastal hazard mitigation activities and what the categorisation of such activities would be in the SEV was not forthcoming.

176. That is why I had to spend time the night before the meeting with relevant chapter leads and others trying to figure out if there was any issue with how the SEV dealt with coastal hazard mitigation activities.

177. It is apparent that the officers have given no responsible consideration to coastal hazard mitigation activities or the requirements of the RMA. They seem to have mistakenly assumed that all coastal hazard matters would be taken care of in the Operative Plan, which is not correct.

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178. I see that the Panel has stated in the questions and answers that:

“Question

Will there be an opportunity for ongoing submitter engagement meetings?

Answer

Unfortunately the answer is “no”. It was necessary to bring the opportunity for further engagement to a close as Council officers had to turn their attention to preparing the s42A Reports as a first priority. Any further delay in preparing the s42A Reports would have an impact on the hearings schedule.”

179. In relation to coastal hazard mitigation provisions, that position is regrettable. In my submission, the first priority should be to get appropriate provisions into the PDP - not prepare s 42A reports or keep to a hearing schedule, which the Panel has taken appropriate care to identify as draft in any event.

180. Currently, there has been little appropriate discussion or feedback as the officers seem to have given the coastal hazard matters little, if any, attention at all. Getting appropriate provisions should involve pre-hearing meetings to enable discussion and collaboration between relevant submitters and officers. The desired outcome would be agreement where possible and if agreement is not possible then at least the issues are narrowed. That would enable the submitter to have a heads up as to what issues remain unresolved or “live” and will need to be addressed in evidence. Currently, all of the issues raised by CRU and others in relation to the SEV are “live” not necessarily because the officers don’t agree with CRU but because they were not in a position to provide feedback. That is not a satisfactory outcome of the SEV consultation process.

181. In terms of the Panel’s role, you may wish to consider directing, or at the very least encouraging, relevant officers to liaise further with CRU and other relevant submitters with a view to developing appropriate coastal hazard mitigation provisions in the PDP and including appropriate provisions in s 42A reports.

182. Currently, coastal submitters will be taken by surprise by whatever appears, or does not appear, in the s 42A reports. That is not a proper way to progress coastal hazard provisions in the PDP in the context of the requirements of the RMA, including the obligation to give effect to the NZCPS. It is also not consistent with general principles of fairness.

Para 377 - definitions of map notations

“377 In terms of Submission 451.6 Rob Crozier and Joan Allin, I do not generally consider definitions of map notations necessary, because they are generally explained by the policies creating them (e.g. zones) or are explained within section 1.4 of the PDP - Definitions. Explanations in the policies have been reviewed to ensure these can satisfactorily inform the map notations.”

183. The issue of definitions of map notations has already been addressed earlier.

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184. However, I note the additional reference in para 377 that I have underlined above. If some are already “explained within section 1.4 of the PDP - Definitions” then at least some of them have presumably already been defined.

185. I have already explained that what I mean by a definition is not what the map reference actually means, but where in the PDP a person should go to find out. So, what I’m really talking about is a directional signal.

Joan Allin21 March 2016

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