Proposed Natural Resources Plan for the Wellington Region. Section 42A Hearing Report For Hearing Commencing 22 May Report Dated: 20 April 2017

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1 Proposed Natural Resources Plan for the Wellington Region Section 42A Hearing Report For Hearing Commencing 22 May 2017 Report Dated: 20 April 2017 Part A: Introduction and Procedural Matters Report prepared by: Amber Carter Consultant Planner

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3 Contents 1. Executive summary 1 2. Introduction 3 3. Code of conduct 3 4. Scope of hearing report 3 5. Council s integrated regional plan Inclusion of the regional coastal plan in the proposed Plan Legal effect of rules in the proposed Plan 6 6. Statutory context National policy statements The Regional Policy Statement Water conservation orders Matters a regional plan must be in accordance with (RMA section 66(1)) Matters which a regional plan must have regard to (RMA section 66(2)) Iwi planning documents (section 66(2A)) Te Upoko Taiao Natural Resource Management Committee Schedule 1 requirements Consultation during the plan review process Notification and provision of document to public bodies (clause 5 of Schedule 1) Overview of submissions and further submissions received Waivers and extensions of timeframes Pre-hearing meetings Hearings and decisions process Appointment of the Hearing Panel Section 42A reports Hearings Decision of the Hearing Panel Conclusion References 39 Appendix A: List of submitters Appendix B: Further submitters Appendix C: Extensions and waivers Appendix D: Documents incorporated by reference Appendix E: List of section 32 reports... 65

4 Appendix F: Common Format Submissions Appendix G: List of all provisions in the proposed Plan with their relevant section 42A officer s report List of figures Figure 1: The resource management policy and planning framework (Source: Proposed Natural Resources Plan for the Wellington Region 2015, p8)... 8 Figure 2: Summary of plan preparation and notification process under Schedule 1 of the RMA List of tables Table 1: List of abbreviations... i Table 2: Structure of the section 42A officers reports and hearings... 2 Table 3: Summary of how the proposed Plan must treat different documents under the RMA Table 4: Types of Common Format submission received by Council Table 5: Pre-hearing meetings held prior to April Table 6: Objectives examined in Council's section 42A reports (post-notification) compared to section 32 reports (pre-notification) Table 7: Indicative hearings schedule for the proposed Plan Table 8: List of Farmer Common Format submitters Table 9: List of Wairarapa Water Users Common Format submitters Table 10: List of Land Matters Common Format submitters Table 11: List of Titahi Bay Residents Common Format submitters Table 12: List of Craig Dairy Farms Common Format submitters Table 13: List of Sufer Common Format submitters... 73

5 Table 1: List of abbreviations List of Abbreviations Carterton District Council Hutt City Council Kāpiti Coast District Council Masterton District Council National Policy Statement for Freshwater Management 2014 National Policy Statement on Urban Development Capacity (2016) New Zealand Coastal Policy Statement (2010) Porirua City Council Regional Policy Statement for the Wellington Region Resource Management Act 1991 South Wairarapa District Council Summary of Decisions Requested Upper Hutt City Council Wellington City Council Wellington Regional Council CDC HCC KCDC MDC NPS-FM NPS-UDC NZCPS PCC RPS RMA SWDC SDR UHCC WCC WRC i

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7 Section 42A Report Part A: Introduction & procedural matters 1. Executive summary This report contains the background information, statutory context, and procedural matters that relate to the proposed Natural Resources Plan for the Wellington Region (proposed Plan). It also explains how the section 42A officers reports 1 are structured and how these relate to Wellington Regional Council s (Council s) section 32 reports 2 that were prepared prior to public notification of the proposed Plan. Officers of the Council and consultants have prepared section 42A reports that address the submissions received on the proposed Plan. These reports are intended to assist the Hearing Panel and those persons and organisations who lodged submissions on the proposed Plan. Seventeen of the 20 section 42A officers reports contain recommendations on submissions for consideration by the Hearing Panel; these are referred to as the topic-based reports. Three reports do not contain recommendations on submissions. These are referred to as the Part A reports and are intended to address issues that do not sit with any individual provision or topic of the proposed Plan. The Part A reports are: Part A: Introduction and procedural matters (this report) Part A: Overall policy framework of the explains Council s policy approach for the proposed Plan, the whaitua approach to implementing the National Policy Statement for Freshwater Management (2014) (NPS-FM), and the physical structure of the proposed Plan Part A: Section 32 and consultation considers comments made in submissions and further submissions on Council s consultation process and on Council s section 32 reports published at the time the proposed Plan was notified. Table 2 shows the structure of the section 42A officers reports. Given the integrated nature of the proposed Plan, there are overlaps between topic-based reports, and related provisions will be identified in the reports. Appendix G contains a list of every provision in the proposed Plan with a cross-reference to the relevant section 42A officers report. 1 Reports prepared under s42a of the Resource Management Act Reports prepared under s32 of the Resource Management Act NATRP PAGE 1 OF 127

8 Topic-based reports Part A reports Section 42A Report Part A: Introduction and procedural Matters Table 2: Structure of the section 42A officers reports and hearings Hearing Section 42A officers reports Proposed Plan objectives 1 Part A: Introduction and procedural matters Part A: Section 32 and consultation Part A: Overall policy framework of the No recommendations on specific provisions are included in these reports Part B: Overall policy framework of the O1, O2, O3, O4, O5, O11, O14, O15, O26 Beneficial use and development O6, O7, O8, O9, O10, O12, O13 Areas and sites with significant mana whenua values O16, O33 2 Air quality management O39, O40, O41 Land use in riparian margins and stock access to water bodies Soil conservation 3 Water allocation O52 O27, O44, O45 O42, O47 Wetlands and biodiversity O18, O28, O29, O30, O31, O35 Natural form and function O17, O19, O32, O36, O37, O38 4 Water quality O23, O24, O25, O50 Stormwater 5 Beds of lakes and rivers No objectives are considered in this report Discharges to land Contaminated land and hazardous substances O48 O46, O49 O43, O51 6 Coast O53, O54, O55, O56, O57, O58, O59 Natural hazards Significant historic heritage values O20, O21, O22 O34 PAGE 2 OF 127 NATRP

9 Section 42A Report Part A: Introduction & procedural matters 2. Introduction 1. My name is Amber Carter. I am a planner from Opus International Consultants Ltd, based in Wellington. My qualifications and experience are as follows: I hold a Bachelor of Science (Geography) and a Master of Planning degree (with distinction) from Otago University and a Graduate Diploma in Commerce specialising in Economics from Victoria University. I have two years experience in planning under the Resource Management Act 1991 (RMA). I was not involved with the preparation of the proposed Natural Resources Plan for the Wellington Region (proposed Plan). I was contracted by the Wellington Regional Council (Council) in December 2015 (after the proposed Plan notification period had closed) to help prepare the Summary of Decisions Requested by Submitters (SDR) and code further submissions into GWRC s internal submissions database Spoken. In addition to reading the submissions, I have read Council s section 32 reports and the four consultation reports published prior to notification of the proposed Plan (Parminter 2011a, 2011b, 2013, 2015). Where I have relied on various Council letters, minutes and reports, these are identified in footnotes. 3. Code of conduct 5. I confirm that I have read the Code of Conduct for Expert Witnesses contained in the Environment Court Practice Note and that I agree to comply with it I confirm that I have considered all the material facts that I am aware of that might alter or detract from the opinions that I express, and that this evidence is within my area of expertise, except where I state that I am relying on the evidence of another person. I am authorised to give this evidence on the Council's behalf. 4. Scope of hearing report 8. This report is prepared in accordance with section 42A of the Resource Management Act 1991 (RMA). This report provides factual background NATRP PAGE 3 OF 127

10 Section 42A Report Part A: Introduction and procedural Matters information, statutory context, procedural matters and a guide to how Council s reports to the Hearings Panel (the section 42A officer s reports) are structured. The substance of submissions are not considered in this report. Section 5 provides a brief background to Council s decision to prepare an integrated regional plan that includes the regional coastal plan Section 6 is an overview of the statutory context that the proposed Plan sits within Section 7 details how Council met the Schedule 1 requirements for consultation and notification of the proposed Plan Section 8 explains the hearings process and the structure of the section 42A officers reports, including how these relate to Council s section 32 reports prepared prior to public notification Appendix A contains a list of submitters Appendix B contains a list of further submitters Appendix C contains a list of extensions and waivers Appendix D contains a list of documents incorporated into the proposed Plan by reference Appendix E contains a list of Council s section 32 reports Appendix F contains a list of the Common Format submissions Appendix G contains a list of every provision in the proposed Plan with a cross-reference to the relevant section 42A officers report. PAGE 4 OF 127 NATRP

11 Section 42A Report Part A: Introduction & procedural matters 5. Council s integrated regional plan 9. The proposed Natural Resources Plan for the Wellington Region (proposed Plan) is a regional plan prepared under the RMA. It is intended to replace Council s current suite of operative regional plans, which are: Regional Air Quality Management Plan for the Wellington Region 8/5/2000 Regional Freshwater Plan for the Wellington Region 17/12/1999 Regional Plan for Discharges to Land for the Wellington Region 17/12/1999 Regional Soil Plan for the Wellington Region 9/10/2000 Regional Coastal Plan for the Wellington Region 19/6/ Regional plans are one of a number of statutory instruments provided for in the RMA. The purpose of a regional plan 3 is to assist the regional council to carry out its functions in order to achieve the purpose of the RMA (sustainable management of natural and physical resources). The purpose of the regional coastal plan (discussed further below at section 5.1) is to assist the regional council, in conjunction with the Minister of Conservation, to achieve the purpose of the RMA in relation to the coastal marine area of that region. 4 Regional plans must be reviewed every 10 years. 5 The default requirement in the RMA in relation to most activities controlled by a regional council is that a resource consent needs to be obtained unless there is a rule in a regional plan permitting that. 6 Council s decision to have a regional plan covering more than the mandatory regional coastal plan is partially driven by the need to provide for such permitted activities in a plan. 7 Other drivers include the outcomes of the review process for the existing 3 RMA s63 4 RMA s63(2) 5 RMA s79(1)(b) 6 RMA s9, s12, s13, s14 and s15. 7 Regional Plan review process by Nicola Shorten, Manager, Envrionmental Policy, report to Te Upoko Taiao Natural Resource Plan Committee, 26 February 2010, File reference ENV/31/01/01. NATRP PAGE 5 OF 127

12 Section 42A Report Part A: Introduction and procedural Matters operative plans and the need to implement the National Policy Statement for Freshwater Management 2014 (NPS-FM). 12. The proposed Plan takes an integrated approach to the management of the region s natural and physical resources. The proposed Plan has taken five operative plans, including the regional coastal plan, and combined them into one document that seeks to manage natural and physical resources in a more holistic manner. This approach has influenced the structure of the proposed Plan. For example, there is a single objectives chapter and a single policies chapter which apply across the management of all natural and physical resources, as opposed to having separate air, land, water and coast chapters. The proposed Plan also contains five catchment-based chapters based on different whaitua 8 areas that contain interim provisions for minimum flows, minimum water levels and core allocation of water. The section 42A officer s report Part A: Overall policy framework of the covers the physical structure of the plan and the policy drivers behind the proposed Plan in further detail. 5.1 Inclusion of the regional coastal plan in the proposed 13. Plan Section 64(1) of the RMA states there shall be at all times, for the coastal marine area of a region, one or more regional coastal plans. Section 64(2) enables the regional coastal plan to form part of a regional plan in order to promote the integrated management of the coastal marine area and any related part of the coastal environment. 14. The provisions of the proposed Plan that form part of the regional coastal plan are identified by an icon. 5.2 Legal effect of rules in the proposed Plan 15. Section 86B of the RMA sets out when rules in a proposed Plan have legal effect. Unless otherwise specified, all rules have legal effect only once a decision on the submissions is made and publicly notified under clause 10(4) of 8 Māori word meaning designated space or catchment. PAGE 6 OF 127 NATRP

13 Section 42A Report Part A: Introduction & procedural matters Schedule 1. Where rules take legal effect before, or after this date, that must be specified at the time of notification of a In accordance with section 86E of the RMA, the proposed Plan at clearly identified that all rules in the proposed Plan have legal effect from the date of notification of the proposed Plan (being 31 July 2015). This was also stated in the public notice. The reason for this is that all the rules within the proposed Plan are considered to fall within the matters listed in section 86B(3) of the RMA. Section 86B(3) of the RMA states: (3) A rule in a has immediate legal effect if the rule (a) protects or relates to water, air, or soil (for soil conservation); or (b) protects areas of significant indigenous vegetation; or (c) protects areas of significant habitats of indigenous fauna; or (d) protects historic heritage; or (e) provides for or relates to aquaculture activities. 9 RMA, s86e NATRP PAGE 7 OF 127

14 Section 42A Report Part A: Introduction and procedural Matters 6. Statutory context 17. Sections 63 70B of the RMA set out the purpose, preparation, parameters, matters to consider and contents of a regional plan for the whole or part of a region. The RMA provides for a number of different planning instruments to give national, regional or district policy direction and sets out responsibilities for the management of the region s natural and physical resources. The RMA sets out how this range of policy statements, national environmental standards and plans work together. Regional policy statements and regional plans must give effect to national policy statements, including the New Zealand Coastal Policy Statement 2010 (NZCPS). District and regional plans must give effect to regional policy statements. Rules in plans must not duplicate, or conflict with, provisions within national environmental standards. 10 Figure 1 below shows the geographical boundaries of the policy statements and plans within this resource management framework. Figure 1: The resource management policy and planning framework (Source: Proposed Natural Resources Plan for the Wellington Region 2015, p8) 10 RMA s44a PAGE 8 OF 127 NATRP

15 Section 42A Report Part A: Introduction & procedural matters 18. Table 3 contains a summary of how the proposed Plan is required to treat different kinds of statutory instruments under the RMA. These requirements are discussed in more detail in the sections below. Table 3: Summary of how the proposed Plan must treat different documents under the RMA. RMA section Requirement Relevant documents for the proposed Plan s67(3) must give effect to National policy statements Wellington Regional Policy Statement s67(4) s66(1) s66(2) s66(2a) must not be inconsistent with must be in accordance with shall have regard to must take into account must recognise and provide for Water conservation orders Council s functions under section 30 Provisions of Part 2 of the RMA Obligations to prepare an evaluation report in accordance with section 32 Any regulations The Crown s interests in the coastal marine area Management plans and strategies prepared under other Acts Relevant entries on the New Zealand Heritage List/ Rārangi Kōrero Regulations relating to ensuring sustainability, or the conservation, management, or sustainability of fisheries resources Regional policy statements and plans of adjacent regional councils Regulations made under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 Relevant planning documents recognised by an iwi authority Planning documents prepared by a customary marine title group none for the Wellington Region 6.1 National policy statements 19. A national policy statement is an instrument available under the RMA that states objectives and policies for matters of national significance. They must be given effect to by regional policy statements and regional plans. At the time of writing, there are five national policy statements in place. These are: NATRP PAGE 9 OF 127

16 Section 42A Report Part A: Introduction and procedural Matters National Policy Statement for Freshwater Management (2014) (NPS- FM) 11 National Policy Statement on Electricity Transmission (2008) (NPS-ET) National Policy Statement for Renewable Energy Generation (2011) (NPS- REG) New Zealand Coastal Policy Statement (2010) (NZCPS) National Policy Statement on Urban Development Capacity (2016) (NPS- UDC) 20. With the exception of the NPS-UDC (which came into effect after notification of the proposed Plan), all of the above national policy statements existed prior to notification of the proposed Plan and were considered as part of its preparation in order to ensure the proposed Plan gives effect to them National Policy Statement on Urban Development Capacity (2016) (NPS-UDC) 21. The NPS-UDC was issued by Gazette Notice on 3 November It came into force on 1 December The provisions in the NPS-UDC must be considered by decision-makers when making decisions that affect an urban environment. The NPS-UDC sets out a range of objectives and policies. The objectives apply to all local authorities, but different policies apply to different local authorities depending on the level of growth in an area. The Kāpiti and Wellington urban areas (which includes WCC, PCC, UHCC and HCC) are currently classed as medium-growth urban areas The proposed Plan is required to give effect to the NPS-UDC. As Wellington is classified as a medium-growth area, all the objectives, as well as NPS-UDC policies PA1-PA4, PC1-PC4 and PD1-2 must be given effect to as soon as practicable. Further, Policies PB6, PB7 and PB1-5 must also be given effect to, but the NPS-UDC specifies a later timeframe for that to happen. As none of the relevant objectives or policies are directive as to the amendments required to the proposed Plan, the Council must progress any necessary amendments 11 The Clean Water Package 2017 proposes a number of amendments to the NPS-FM, but at the time of writing the NPS-FM 2017 was draft only. 12 Note that Wellington s classification may be subject to change as new data becomes available. PAGE 10 OF 127 NATRP

17 Section 42A Report Part A: Introduction & procedural matters through the normal RMA Schedule 1 process for changing a regional plan as soon as practicable. 23. At the time of writing this report, the Council is currently reviewing the proposed Plan to determine what amendments are required, if any, in order to give effect to the NPS-UDC and how they will be progressed. The topic-based section 42A officers reports will consider whether the proposed Plan s provisions give effect to the NPS-UDC and whether further amendments are/are not required in order to do so within the scope of existing submissions or whether a plan change or variation will be required. 6.2 The Regional Policy Statement 24. The Regional Policy Statement for the Wellington Region (RPS) was made operative on 24 April Under section 67(3) of the RMA a regional plan must give effect to any regional policy statement. The purpose of the RPS is to establish a series of complementary policies and methods that provide a robust, integrated approach to promoting the sustainable management of the region s natural and physical resources. The RPS contains resource management issues, objectives, policies and methods that provide direction to the Council and the territorial authorities on the management of the following topics: Air quality Coastal environment Energy, infrastructure and waste Fresh water Historic heritage Indigenous ecosystems Landscape Natural hazards Regional form, design and function Resource management with tangata whenua; and Soils and minerals. 25. The RPS also directs the content of regional and district plans by setting out the type and tone of policies required to manage or address specific resource NATRP PAGE 11 OF 127

18 Section 42A Report Part A: Introduction and procedural Matters management issues in the region. It also directs how councils are to address issues that cross geographic or jurisdictional boundaries and specifically contains policies (Policies 61, 62 and 63) that direct how regional and district plans are to recognise and provide for overlapping functions under sections 30 and 31 of the RMA. 6.3 Water conservation orders 26. A regional plan must not be inconsistent with a water conservation order. 13 There is only one water conservation order relevant to the Wellington Region, which applies to Lake Wairarapa and was made under the Water and Soil Conservation Act The National Water Conservation (Lake Wairarapa) Order 1989 was made on 6 March 1989 and recognises that Lake Wairarapa has outstanding wildlife habitat, created in part as a consequence of natural fluctuations of water levels. 27. The order prohibits diversion of water and states that no water rights or general authorisation shall be made if the effect would be to diminish significantly the outstanding wildlife habitat feature of the lake. For the proposed Plan, this order s main impact is on the water allocation regime proposed for Lake Wairarapa, but it is also why reclamation of the bed of Lake Wairarapa is prohibited under Rule R128 of the proposed Plan (as reclamation would necessarily require diversion of water). 6.4 Matters a regional plan must be in accordance with (RMA section 66(1)) 28. Section 66(1) requires the Council to prepare a regional plan in accordance with: its functions under section 30 the provisions of Part 2 its obligations under section 32 and any regulations. 13 RMA s67(4)(a) PAGE 12 OF 127 NATRP

19 Section 42A Report Part A: Introduction & procedural matters Each of these matters are addressed below. However, due to the broad and wide-ranging nature of section 32, and the number of concerns raised by submissions on the section 32 reports Council prepared prior to notification of the proposed Plan, I address this subject in more depth in a separate section 42A officer s report: Section 32 and consultation. In addition, when preparing or changing any regional plan, the Council is required to have regard to the matters set out in RMA section 66(2) which are addressed in section 6.5 below Functions of a regional council 31. The Council does not have the ability to control all effects from the use and/or development of all natural and physical resources. The functions of a regional council are set out in section 30 of the RMA, and a regional plan must be in accordance with these. 14 The functions of a regional council include the following: The establishment, implementation and review of objectives, policies and methods to achieve integrated management of the natural and physical resources of the region (section 30(1)(a)). The preparation of objectives and policies in relation to effects of the use, development or protection of land which are of regional significance (section 30(1)(b)). The control of the use of land for certain purposes (section 30(1)(c)). The investigation of land for the purposes of identifying and monitoring contaminated land (section 30(1)(ca)). The control of the coastal marine area (in conjunction with the Minister of Conservation) (section 30(1)(d)). The control of the taking, use, damming and diversion of water, and the control of the quantity, level and flow of water in any water body (section 30(1)(e)). 14 RMA s66(1)(a) NATRP PAGE 13 OF 127

20 Section 42A Report Part A: Introduction and procedural Matters The control of discharges of contaminants into or onto land, air, or water and discharges of water into water (section 30(1)(f)). Allocation of certain resources (section 30(1)(fa) and (fb)). Control of the introduction or planting of plants in the bed of a water body for certain purposes (section 30(1)(g)). Indigenous biodiversity (section 30(1)(ga)). Strategic integration of infrastructure with land use (section 30(1)(gb)). Any other function specified in the RMA (section 30(1)(h) The functions referred to in sections 30(1)(a) and 30(1)(b) primarily relate to Council s RPS, which the proposed Plan must give effect to. The proposed Plan implements sections 30(1)(c) and 30(1)(d) (h) Provisions of Part 2 of the RMA 33. Part 2 of the RMA contains its purpose and principles, which the proposed Plan must be prepared in accordance with. The purpose of the RMA is to promote the sustainable management of natural and physical resources. 34. Section 6 of the RMA identifies matters of national importance to be recognised and provided for. Section 7 identifies other matters to be given particular regard when managing natural and physical resources, and section 8 directs that councils must take into account the principles of the Treaty of Waitangi Obligations under section The Council prepared 20 section 32 reports focussing on specific topics and their related objectives. These were made publicly available when the proposed Plan was publicly notified and remain available on the Council website. An introductory document Introduction to the Resource Management Act 1991 Section 32 Reports accompanies them and provides information, procedural guidance and background to the topic-based evaluation reports. Council s section 32 reports, the requirements of section 32, and submissions in respect 15 The regional council also has other powers and functions under the RMA, see for example section 6 that applies to all persons exercising functions and powers under it. PAGE 14 OF 127 NATRP

21 Section 42A Report Part A: Introduction & procedural matters of that analysis are addressed in the section 42A officer s report: Section 32 and consultation Any regulations National environmental standards 36. National environmental standards are regulations issued under sections 43 and 44 of the RMA that prescribe technical standards, methods or other requirements to manage environmental matters. The regulations apply nationally, so every regional, city or district council must enforce the same standard, or, in some circumstances, may apply a stricter standard. The purpose of a national environmental standard is to protect people and the environment by securing a consistent approach and decision-making process throughout the country. At the time of writing, there are five national environmental statements in place. These are: Resource Management (National Environmental Standards for Air Quality) Regulations 2004 Resource Management (National Environmental Standards for Sources of Human Drinking Water) Regulations 2007 Resource Management (National Environmental Standards for Telecommunication Facilities) Regulations 2008 (the Resource Management (National Environmental Standards for Telecommunication Facilities) Regulations 2016 will come into force on 1 January 2017) Resource Management (National Environmental Standards for Electricity Transmission Activities) Regulations 2009 Resource Management (National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health) Regulations The Minister for Primary Industries released a draft National Environmental Standard for Plantation Forestry (NES-PF) for public consultation in 2015, but has not announced if or when this may come into effect. The implications of this NES-PF for the proposed Plan will be considered in the section 42A Officer s Report: Soil conservation, which will be prepared prior to Hearing Stream 2. A draft National Environmental Standard on Ecological Flows and NATRP PAGE 15 OF 127

22 Section 42A Report Part A: Introduction and procedural Matters Water Levels was released for consultation in 2008 but has not been further progressed. A draft NES has no legal effect Other regulations As well as national policy statements and national environmental standards, central government can provide national direction through regulations. Section 360 of the RMA details the purposes for which regulations may be made. In addition to the national environmental standards, current potentially relevant resource management regulations include: Resource Management (Discount on Administrative Charges) Regulations 2010 Resource Management (Exemption) Regulations 1996 Resource Management (Forms, Fees, and Procedure) Regulations 2003 Resource Management (Infringement Offences) Regulations 1999 Resource Management (Marine Pollution) Regulations 1998 Resource Management (Measurement and Reporting of Water Takes) Regulations 2010 Resource Management (Transitional, Fees, Rents, and Royalties) Regulations The recently enacted Resource Legislation Amendment Bill 2015 provides central government with the ability to make regulations to prescribe measures for stock exclusion from water bodies. 6.5 Matters which a regional plan must have regard to (RMA section 66(2)) 41. Section 66(2) requires the Council to have regard to the following relevant matters: The Crown s interests in the coastal marine area Management plans and strategies prepared under other Acts Relevant entries on the NZ Heritage List/Rārangi Kōrero PAGE 16 OF 127 NATRP

23 Section 42A Report Part A: Introduction & procedural matters Regulations relating to fisheries resources 16 The extent to which the proposed Plan needs to be consistent with adjacent regional councils policy statements and plans (including any proposed policy statements and plans) The extent to which the proposed Plan needs to be consistent with regulations made under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act For the Wellington Region, examples of relevant documents prepared under other Acts include: Wellington Conservation Management Strategy Wellington Regional Land Transport Plan 2015 Wellington Region Civil Defence Emergency Management Group Plan Greater Wellington Regional Council 10 Year Plan Wellington Regional Council s Regional Pest Management Strategy Wellington Biodiversity Strategy Bylaws covering the coastal marine area. 43. Specific Acts, statutory documents, guidelines and industry standards relevant to particular topics are identified in each topic-based section 42A officer s report Settlement legislation and statutory acknowledgements 44. There are two Treaty of Waitangi Settlement Acts that apply in the Wellington Region the Ngāti Toa Rangatira Claims Settlement Act 2014 and the Port Nicholson Block (Taranaki Whānui ki te Upoko o Te Ika) Claims Settlement Act Both of these Acts require that statutory acknowledgements be appended to the regional plan. These are appended as Schedule D of the 16 There are no fisheries or aquaculture activities in the Wellington Region that are managed by the proposed Plan. NATRP PAGE 17 OF 127

24 Section 42A Report Part A: Introduction and procedural Matters proposed Plan. The Acts require the Council to have regard to the statutory acknowledgements when making notification decisions under the RMA. 45. Since the proposed Plan was notified, a further deed of settlement has been agreed between the Crown and Rangitāne o Wairarapa and Rangitāne o Tamaki nui-ā-rua. The bill to give effect to this settlement, the Rangitāne Tū Mai Rā (Wairarapa Tamaki nui-ā-rua) Claims Settlement Bill, is progressing through Parliament at the time of writing and has not yet been enacted. Once passed into law, any statutory acknowledgement required to be appended to a regional plan will be included in Schedule D of the proposed Plan without the need to follow the RMA Schedule 1 process. 6.6 Iwi planning documents (section 66(2A)) 46. Section 66(2A) sets out how Council must deal with a relevant planning document recognised by an iwi authority or planning document prepared by a customary marine title group, if these documents are lodged with Council. There are no customary marine title groups in the Wellington Region at the time of writing The six mana whenua iwi of the Wellington Region are: Rangitāne o Wairarapa represented by Rangitāne o Wairarapa Incorporated Kahungunu ki Wairarapa represented by Ngāti Kahungunu ki Wairarapa Trust Taranaki Whānui ki te Upoko o Te Ika represented by Port Nicholson Block Settlement Trust Ngāti Toa Rangatira represented by Te Rūnanga o Toa Rangatira Incorporated Te Ātiawa ki Whakarongotai represented by Āti Awa ki Whakarongotai Charitable Trust Ngāti Raukawa ki te Tonga represented by Ngā Hapū ō Ōtaki PAGE 18 OF 127 NATRP

25 Section 42A Report Part A: Introduction & procedural matters 48. The relevant iwi management plans lodged with Council at the time of notification of the proposed Plan were: Raukawa Environmental Management Plan 2015 lodged by Ngāti Raukawa ki te Tonga Parangarahu Lakes Area Co-Management Plan lodged by Port Nicholson Block Settlement Trust Wellington Harbour Islands Kaitiaki Plan lodged Port Nicholson Block Settlement Trust. 49. These were taken into account during the proposed Plan s preparation Te Upoko Taiao Natural Resource Management 50. Committee Te Upoko Taiao Natural Resource Management Committee (Te Upoko Taiao) is a partnership committee that was established by Council resolution (GWRC 2009a, 2009b) to review and develop the revised regional plans. Its membership initially consisted of seven councillors and seven non-councillor members, each appointed by Council for their skills, attributes or knowledge relevant to the work of the committee and including their knowledge of the rohe of the relevant iwi authority to which they belong (GWRC 2009b, p.2). Te Upoko Taiao s terms of reference state that Council will have regard to the recommendation of the iwi authorities when appointing the non-councillor members Iwi representatives on Te Upoko Taiao were appointed from the six 19 iwi who are signatories of the Memorandum of Partnership (GWRC 2013). The six iwi entities are those listed in paragraph 47 above. Council has delegated a number of its statutory powers under the RMA 20 to Te Upoko Taiao set out in its terms of reference. 18 Proposed Natural Resources Plan for the Wellington Region, p Prior to settlement in 2008, the Wellington Tenths Trust and Taranaki Whānui ki Te Upoko o Te Ika were considered as two separate iwi authorities; these are now considered as a single iwi authority represented by Port Nicholson Block Settlement Trust. One appointed member position on the committee is vacant at this time. NATRP PAGE 19 OF 127

26 Section 42A Report Part A: Introduction and procedural Matters Te Upoko Taiao and consultation with iwi 53. Te Upoko Taiao s terms of reference state that It is not intended that the participation of non-councillor members on the Committee be a substitute for any consultation with iwi authorities required under the First Schedule of the Resource Management Act (GWRC 2009b) 54. Iwi input into the proposed Plan is discussed in Council s section 32 report: Māori Values, which was made publicly available when the proposed Plan was publicly notified. Further comment on Council s partnership approach with mana whenua to develop the proposed Plan is provided in the evidence of Mike Grace to the Hearing Panel. 20 In accordance with clause 30 of Schedule 7 of the Local Government Act PAGE 20 OF 127 NATRP

27 Section 42A Report Part A: Introduction & procedural matters 7. Schedule 1 requirements 56. The regional plan must be prepared in accordance with the procedures in RMA Schedule 1. An outline of the Schedule 1 process is shown in Figure Consultation during the plan review process (no statutory time limit) 2. Public notification and submissions (min. 40 working days) 3. Summary of Decisions Requested in Submissions (SDR) prepared by Council and notified 4. Further submissions open on the SDR (10 working days) 5. Pre-hearing meetings between Council officers and submitters 6. Council staff produce reports evaluating and making recommendations on submissions (section 42A reports) 7. Hearing 8. Deliberations 9. Notice of decision within 2 years of notification Figure 2: Summary of plan preparation and notification process under Schedule 1 of the RMA Consultation during the plan review process Statutory requirements prior to public notification 57. Clause 3 of Schedule 1 of the RMA sets out the consultation requirements for Council when preparing a proposed regional plan. There are several parties that must be consulted with, which are: 21 Note that the timeframe for the decision on the proposed Plan has been extended by 1 year under RMA s37. The reason for this extension are set out in section of this report. NATRP PAGE 21 OF 127

28 Section 42A Report Part A: Introduction and procedural Matters The Minister for the Environment. The Minister of Conservation, the Minister of Transport in relation to the Minister s functions under the Maritime Transport Act, and the Minister of Fisheries in relation to fisheries management and management of aquaculture activities. There are no fisheries or aquaculture activities in the Wellington Region that are managed by the proposed Plan. 22 Other Ministers of the Crown who may be affected by the plan. The local authorities affected within the Wellington Region (9): Wellington City Council, Porirua City Council, Kāpiti Coast District Council, Hutt City Council, Upper Hutt City Council, South Wairarapa District Council, Masterton District Council, Carterton District Council and a small part of Tararua District Council. Tangata whenua of the area through iwi authorities. There are six iwi authorities in the Wellington Region (see paragraph 47 above for the list). Any customary marine title group in the area. At the time of writing, there are no customary marine title groups for the Wellington Region. However, I note that there have been seven applications recently served on the Council under the Marine and Coastal Area (Tatuki Moana) Act Council may also consult with anyone else during the preparation of a proposed plan. Council s consultation during its plan review process from 2009 onwards has been extensive. Key milestones include releasing the Working Document for Discussion (WDFD) in July 2013 and the draft Natural Resources Plan in September The consultation process Council followed prior to notification, as well as submitter s comments on the consultation process, are considered in more detail in the Part A: Section 32 and Consultation report with the conclusion that consultation was in accordance with Clause 3 of Schedule 1 of the RMA and section 82 of the Local Government Act The proposed Plan is to be prepared in consultation with these ministers specifically because it includes provisions for the coastal marine area (RMA Schedule 1 Clause 3(3)). PAGE 22 OF 127 NATRP

29 Section 42A Report Part A: Introduction & procedural matters Technical reports 59. Alongside the consultation process, many technical and background documents have influenced the development of the proposed Plan. Some examples of such documents are: Effectiveness monitoring reports for each of the operative plans (GWRC 2006a, 2006b, 2008a, 2008b, 2008c) 23 Environmental monitoring data and annual monitoring reports Technical reports published throughout the pre-notification consultation period from 2009 onwards Peer reviews of the methodology used to identify different sites of significance included in the schedules of the draft Natural Resources Plan. 60. Council maintains an online document library of its publications. Key technical reports that underpin the proposed Plan, and in particular the sites with significant values in the schedules. These were made available, and are still available, on the Council website Review of the draft Plan 61. Whilst not a statutory requirement, Council engaged Enfocus to review the draft Plan prior to notifying it to ensure it was fit for purpose (Willis 2015). Changes were made as a result of this review (and as a result of feedback on the draft Plan) Incorporation of documents by reference 62. In accordance with clause 34 of Schedule 1, the Council gave public notice of documents proposed to be incorporated by reference to the proposed Plan via a notice published in the region s newspapers and online on 8 June 2015, nearly two months before the public notification of the proposed Plan on 31 July These 46 documents, listed in Appendix D to this section 42A officer s 23 Section 35 of the RMA requires Council to monitor the efficiency and effectiveness of the policies, rules and other methods in its policy statement and plans and to prepare a report on the results of this monitoring every five years. NATRP PAGE 23 OF 127

30 Section 42A Report Part A: Introduction and procedural Matters report, comprise various Acts, regulations, standards, and publications and were made available for public view on the Council website, except New Zealand Standards (due to copyright restrictions). Copies of all documents were also made available for view at the Council s offices and for purchase. The public was advised that any comments needed to be made by 6 July 2015, 20 working days after the public notice appeared Notification and provision of document to public bodies (clause 5 of Schedule 1) The proposed Plan was publicly notified on 31 July 2015, with submissions 63. closing 25 September The RMA sets out procedures and timelines for the preparation and notification of proposed regional plans. Clause 5 of Schedule 1 of the RMA contains the requirements for public notification, with clause 5(1C) specific to regional councils Public notification and section 32 reports clause 5(1) 65. Clause 5(1)(a) requires Council to prepare and have regard to a section 32 evaluation report when deciding whether to proceed with a. Council prepared 20 section 32 evaluation reports for the proposed Plan, and an introductory document Introduction to the Resource Management Act 1991 Section 32 Reports accompanied them and provided information, procedural guidance and background to the topic-based evaluation reports. These were made publicly available when the proposed Plan was publicly notified. Appendix E to this section 42A officer s report contains a list of section 32 reports prepared. 66. All the section 32 reports were published on the Council s website when the proposed Plan was notified. Hard copies of the section 32 reports were sent to the region s libraries, territorial authorities, iwi authorities, the Minister for the Environment, the Minister of Conservation, the Minister for Transport, and the Minister for Primary Industries. 24 RMA clause 34(2)(d) requires a local authority to allow a reasonable opportunity for persons to comment but does not specify a timeframe. PAGE 24 OF 127 NATRP

31 Section 42A Report Part A: Introduction & procedural matters The section 42A officer s report: Section 32 and consultation contains a more detailed explanation of the section 32 process that Council followed and considers issues raised by submissions regarding Council s section 32 reports and evaluation. At its meeting on 25 June 2015, Te Upoko Taiao recommended to Council that the proposed Plan proceed to notification, having had particular regard to section 32 of the RMA. 25 At its meeting on 30 June 2015, Council approved the proposed Plan proceeding to public notification. 26 Council placed a copy of the public notice on its website on 31 July 2015 and in the following newspapers around the region: Dominion Post: 31 July 2015 Hutt News: 4 August 2015 Kapi-Mana News: 4 August 2015 Kāpiti Observer: 6 August 2015 The Wellingtonian: 6 August 2015 Upper Hutt Leader: 5 August 2015 Wairarapa News: 5 August The Council also made the proposed Plan available in every public library in the Wellington Region Directly affected persons clause 5(1C) 71. Council notified all persons considered likely to be directly affected by the proposed Plan by: Directly notifying all residents in the Wellington Region via a letter, and copy of the public notice, sent to over 190,000 addresses. 25 Confirmed minutes of Te Upoko Taiao Natural Resource Management Committee meeting held in the Council Chamber, Shed 39, 2 Fryatt Quay, Pipitea, Wellington, on Thursday, 25 June 2015 at 9.33am, File reference E/12/05/ Confirmed Public minutes of the Council meeting held in the Council Chamber, Greater Wellington Regional Council, Shed 39, 2 Fryatt Quay, Pipitea, Wellington, on Tuesday, 30 June 2015 at 9.33am, File reference E/12/01/03. NATRP PAGE 25 OF 127

32 Section 42A Report Part A: Introduction and procedural Matters Directly notifying key stakeholders, by letter and copy of public notice. These were parties who had demonstrated an active interest in the proposed Plan development process prior to notification Contents of the public notice clause 5(2) 72. The public notice, in accordance with clause 5(2) stated: where the proposed Plan could be inspected that any person may make a submission on the proposed Plan the process for public participation in the consideration of the proposed Plan the closing date for submissions was 25 September 2015 the address for service for the Wellington Regional Council Closing date for submissions clause 5(3) 73. The closing date for submissions was 40 working days after public notification, being 25 September Copies of the proposed Plan clause 5(4) 74. Council sent a copy of the proposed Plan and section 32 reports to: The Minister for the Environment (clause 5(4)(a)) The Minister of Conservation (clause 5(4)(c)) The territorial authorities of the Wellington Region (WCC, HCC, UHCC, KCDC, SWDC, CDC and MDC) and the adjacent regional councils (Horizons Regional Council and the unitary authority of Marlborough District Council) (clause 5(4)(e)) Tangata whenua through iwi authorities (clause 5(4)(f)) The Minister for Transport The Minister for Primary Industries. 75. Council also made copies of its proposed Plan available on a USB on request Availability in public libraries subclause 5(5) 76. Council made a copy of the proposed Plan and section 32 evaluation reports available in every public library in the Wellington Region. PAGE 26 OF 127 NATRP

33 Section 42A Report Part A: Introduction & procedural matters Submissions in the prescribed form and submitters identifying themselves as trade competitors (Clause 6) 77. Clause 6(5) requires submissions to be in the prescribed form (Form 5 of the Resource Management (Forms, Fees, and Procedure) Regulations 2003). This form includes a section that requires submitters to identify whether they could gain an advantage in trade competition through their submission and if so, whether they are directly affected by an adverse environmental effect that does not relate to trade competition. The RMA limits a person s right to make a submission if they could gain an advantage in trade competition through the submission. 27 A person who could gain an advantage in trade competition may only make a submission if directly affected by an effect of the proposed Plan that adversely affects the environment and does not relate to trade competition There were two submitters who indicated on their submission form that they could gain an advantage in trade competition through their submission. Kaiwaiwai Dairies Limited (S119) indicated that they were directly affected by an effect of the subject matter of their submission that does not relate to trade competition. KapAg Limited (S41) did not indicate on their submission form whether they were affected by an adverse environmental effect that does not relate to trade competition. The substance of the submission appears to relate to trade competition matters (specifically in relation to Rule R83, submissions on which will be addressed in the section 42A officer s report: Discharges to Land). The Hearing Panel has the delegated authority to strike out this submission if it considers it necessary to do so under RMA section 41C. The Hearing Panel could also decide to consider the submission and address the trade competition issue directly in its substantive decision. The important aspect is that the Panel must not have regard to matters that relate only to trade competition (section 66(3) of the RMA). 27 RMA Schedule 1, Clause 6(4) NATRP PAGE 27 OF 127