Report and recommendations on submissions to the Auckland City District Plan: Hauraki Gulf Islands Section Proposed 2006

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1 DR / Open Report and recommendations on submissions to the Auckland City District Plan: Hauraki Gulf Islands Section Proposed 2006 Topic: Part 7 Heritage (Ecological sites) and Appendix 6 List of threatened and unusual plant and animal species Report to: From: The council The chairperson, hearings panel Date: 27 March 2009 Group file: 314/ Introduction For ease of use and understanding, the heritage submissions and further submissions have been divided into the seven themes which relate to different heritage disciplines: archaeological sites buildings, objects, properties and places of special value conservation areas ecological sites geological sites Maori heritage trees. Each heritage theme has been addressed in a separate decision report. Each decision report addresses all matters within the Plan that relate to that discipline. For example, this report addresses submissions relating to ecological sites in: part 7 Heritage appendix 1d Schedule of sites of ecological significance inner islands appendix 2g Schedule of sites of ecological significance and sensitive areas outer islands appendix 4 Criteria for scheduling heritage items. There are submissions that relate to more than one discipline; these have been addressed in the general heritage decision report. This report considers submissions and further submissions ( submissions ) that were received by the council in relation to Part 7 Heritage (ecological sites) and Appendix 6 List of threatened and unusual plant and animal species of the Auckland City District Plan: Hauraki Gulf Islands Section - Proposed 2006 ( the Plan ). Page 1

2 DR / This report provides an analysis of the decisions requested in submissions and the supporting evidence presented at the hearings on this matter. The report recommends whether each submission should be accepted or rejected (in full or in part) and what amendments (if any) should be made to the Plan to address matters raised in submissions. Further submissions are not specifically addressed but are dealt with in conjunction with the submissions to which they relate. 2.0 Statutory framework This section of the report briefly sets out the statutory framework within which the council must consider the submissions. In preparing this report the submissions and, in particular, the decisions requested in the submissions, together with the supporting evidence presented at the hearing, have been considered in light of the relevant statutory matters. These were summarised by the Environment Court in Eldamos Investments Limited v Gisborne District Council W047/05 where the court set out the following measures for evaluating objectives, policies, rules and other methods in district plans: 1. The objectives of the Plan are to be evaluated by the extent to which they: a. Are the most appropriate way to achieve the purpose of the RMA (s32(3)(a)); and b. Assist the council to carry out its functions in order to achieve the purpose of the RMA (s72); and c. Are in accordance with the provisions of part 2 of the RMA (s74(1)). 2. The policies, rules, or other methods in the Plan are to be evaluated by the extent to which they: a. Are the most appropriate way to achieve the objectives of the Plan (s32(3)(b)); and b. Assist the council to carry out its functions in order to achieve the purpose of the RMA (s72); and c. Are in accordance with the provisions of part 2 of the RMA (s74(1)); and d. (If a rule) achieve the objectives and policies of the Plan (s76(1)(b)). The purpose of the RMA is to promote the sustainable management of natural and physical resources, and sustainable management is defined in section 5(2) as meaning: managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety while (a) Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and (b) (c) Safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and Avoiding, remedying, or mitigating any adverse effects of activities on the environment. Along with section 5, part 2 of the RMA includes sections 6 (matters of national importance), 7 (other matters) and 8 (Treaty of Waitangi), which set out a range of matters that the council needs to recognise and provide for in achieving the purpose of the RMA. Those matters are also relevant when considering submissions. The Plan must assist the council to carry out its functions under section 31 of the RMA. These functions are: (a) (b) The establishment, implementation, and review of objectives, policies, and methods to achieve integrated management of the effects of the use, development, or protection of land and associated natural and physical resources of the district: the control of any actual or potential effects of the use, development, or protection of land, including for the purpose of Page 2

3 DR / (c) (d) (e) (i) the avoidance or mitigation of natural hazards; and (ii) the prevention or mitigation of any adverse effects of the storage, use, disposal, or transportation of hazardous substances; and (iia) the prevention or mitigation of any adverse effects of the development, subdivision, or use of contaminated land: (iii) the maintenance of indigenous biological diversity: The control of the emission of noise and the mitigation of the effects of noise: The control of any actual or potential effects of activities in relation to the surface of water in rivers and lakes. In addition to the matters listed above from the Eldamos decision: 1. The Plan must give effect to any national policy statement and any New Zealand coastal policy statement (s75(3)(a) and (b)). 2. The Plan must give effect to the regional policy statement (made operative after 10 August 2005) (s75(3)(c)). 3. The Plan must be not inconsistent with any regional plan (s75(4)). 4. The council must ensure that that the Plan does not conflict with sections 7 and 8 of the Hauraki Gulf Marine Park Act 2000 ( the HGMPA ). Section 10 of the HGMPA requires that sections 7 and 8 of that Act be treated as a New Zealand coastal policy statement under the RMA. 3.0 Background This section of the report sets out background information about the topic under consideration. It identifies how the Plan deals with ecological sites. The islands contain a number of important and distinctive natural features of ecological significance. These are described in the Plan as sites of ecological significance and sensitive areas. Sensitive areas only apply to the outer islands, but sites of ecological significance apply to both the inner and outer islands. The extent and variety of these sites of ecological significance and sensitive areas need to be conserved and their qualities maintained. The Plan recognises the value of these sites by identifying and scheduling them. In determining whether sites with ecological values are worthy of protection they have been evaluated against the criteria listed in appendix 4 Criteria for scheduling heritage items. As notified, the Plan did not provide for any activities to occur as of right within a site of ecological significance or sensitive area. Where a site is wholly contained in any site of ecological significance or sensitive area; or where a site is partially contained in a site of ecological significance or sensitive area to the extent that less than 1000m2 of land is available for land use activities outside the site of ecological significance or sensitive area then clearance of modification of vegetation to provide a building platform, effluent disposal system and accessway is a restricted discretionary activity. Otherwise, any proposal to cut, damage, alter or destroy the indigenous vegetation is a discretionary activity. 4.0 Analysis of submissions 4.1 Introduction This section of the report discusses the decisions requested in submissions about Part 7 Heritage (ecological sites) and Appendix 6 List of threatened and unusual plant and animal species and recommends how the council should respond to the matters raised and decisions requested in submissions. The submissions are addressed under subject headings. While the relevant statutory matters (identified in section 2.0 of this report) will not necessarily be referred to directly, the discussion and recommendations have given appropriate consideration to these and any other relevant matters. Page 3

4 DR / Evidence presented at the hearing is directly referred to in this report where the panel believes it is of particular assistance in understanding the decision requested or the reasons for the panel s recommendation. These references are not intended to be exhaustive, and some evidence presented at the hearing may not be directly referred to in this report. However in reaching its recommendations the panel has considered all submissions, any written or verbal evidence presented in support of those submissions and the council planner s report. A list of the submissions considered in this report together with the related further submissions is contained in appendix 1 of this report. Any amendments to the Plan recommended in response to submissions are identified in this section of the report and are further detailed in appendix 2 of this report. 4.2 Submissions about general issues Submissions dealt with in this section: 111/2, 558/2, 558/3, 629/2, 1028/2, 1051/3, 1313/2, 1347/2, 1413/2, 1450/2, 1478/2, 1494/2, 1504/2, 1516/2, 1557/2, 1585/2, 1892/2, 1964/2, 2004/2, 2169/2, 2181/2, 2213/2, 2219/2, 2254/2, 2277/2, 2366/2, 2374/2, 2420/2, 2447/2, 2494/2, 2912/6, 3061/164, 3645/2, 3672/2, 3735/2, 3761/ Decisions requested These submissions in general raise the following issues: allowing more flexible and realistic use of private land limiting the criteria to which council can schedule sites include the operative plan s wording or revise clause 7.11 traffic on existing accessway effective integration support for clause Panel s analysis and recommendations Flexible and realistic rules Submission 111/2 seeks for the rules to be modified to allow a more flexible and realistic use of privately owned land. Submissions 558/2 and 558/3 seek to amend clause and respectively to ensure that the activities recognise the practical aspects of protection, managing and restoring scheduled sites. The panel agrees that clause Rules for ecologically significant sites needs to be amended to allow for the practical use of land. The rules, as notified, require a resource consent for all activities within an SES that will alter the vegetation in some way. The panel considers that these provisions are overly restrictive as they do not allow for any works to be undertaken as of right. The panel considers it appropriate for the rules to recognise a balance between protecting and providing for the wellbeing of landowners. Therefore the panel recommends that submissions 111/2, 558/2 and 558/3 be accepted and clause be amended to provide for some activities as of right. These suggested amendments can be found in appendix 2 of this report Limiting the council s ability to schedule Submissions 629/2, 1313/2, 1347/2, 1413/2, 1450/2, 1478/2, 1494/2, 1504/2, 1516/2, 1557/2, 1585/2, 1892/2, 1964/2, 2169/2, 2181/2, 2213/2, 2219/2, 2254/2, 2277/2, 2366/2, 2374/2, 2420/2, 2447/2, 2494/2, 3645/2, 3672/2, 3735/2 and 3761/2 seek that council s ability to list ecological sites is limited to those representing the most significant examples. Page 4

5 DR / The submitters concern is that the criteria are far too broad and that minimal application of it would mean that every property on the island could be subject to being scheduled as an ecological site. Appendix 4 of the Plan outlines the criteria for scheduling heritage items. For sites of ecological significance, to determine whether particular areas are worthy of recognition and protection in the Plan they are evaluated against a variety of criteria. These range from the diversity of species; the rarity of the ecosystem; the naturalness of the area etc. If one or some of the criteria are satisfied, it does not necessarily mean the area is automatically scheduled in the Plan. Areas are recommended for scheduling based on the opinion of an experienced and qualified ecologist and an assessment against the relevant criteria. The panel consider it inappropriate to limit the council to only schedule those ecological areas that are the most significant example for a number of reasons including: 1. A site of ecological significance may not be the most significant example but it may be the habitat for threatened species. 2. Sites of ecological significance make an important contribution to the natural character of the island. 3. Sites of ecological significance help protect networks of green corridors which are important in providing movement to indigenous species. 4. The RMA does not stipulate that the council should only schedule the most significant examples. The panel therefore considers that the council should not be limited to only scheduling the most significant examples of ecological sites and as such recommends that these submissions be rejected Operative plan wording Submissions 1028/2 and 1051/3 state that the wording of the operative plan with regard to sites of ecological significance is more balanced and appropriate and it should be included or clause 7.11 should be revised. The submissions state that the purpose of the RMA is to achieve a balance between the protection of natural resources and the needs of the community and that this balance has been lost in this instance. The submission further states that clauses from the operative plan are more reasonable and balanced. The operative Plan requires resource consent for the modification or destruction of SES s but has exceptions to the rule when a site is wholly contained within a SES, or when there is less than 1,000m2 of land available for land use activities. The proposed Plan (as notified) requires either restricted discretionary or discretionary activity consent for the modification or destruction of a SES. As noted above, it is considered that the proposed Plan provisions can be improved to provide for a range of routine maintenance type activities as of right. The panel considers that the suggested revised provisions are preferable to those in both the operative and proposed Plan. The submitter s concern with provisions resulting in most activities as being discretionary such as gardening and weed grubbing is supported by the panel. This was not the council s intention. It is intended that small scale activities such as gardening and maintenance of existing accessways be permitted activities. Therefore the panel recommends that these submissions be accepted in part in so far as they support the amendments recommended above. Page 5

6 DR / Medland Road Submission 2004/2 seeks for clause 7.11 to be amended to allow for an increase in traffic on the existing access way at 38 Medland Road. Submission 2004 is concerned about the effect of SES 57-1 on their shared accessway. They seek for the SES to be removed from the accessway OR for clause 7.11 to be amended as stated above. Due to the recommendation to accept submission 2004/1 and remove the SES from the accessway it is recommended that submission 2004/2 be rejected. Notwithstanding this, the Plan does not restrict the number of vehicles that can use an accessway and therefore there is no need for clause 7.11 to be amended Support Submission 2912/6 seeks to retain clause As some changes are recommended to clause 7.11 it is recommended that this submission be accepted in part. Submission 3061/164 states that clause 7.11 is generally supported, as it is recognised that SES s make up an important part of the islands unique character. There is a need to ensure these provisions are effectively integrated with related areas such as catchments and wetlands, especially in terms of protection and management. The ecology of the Hauraki Gulf islands is protected through a variety of techniques. At a broad level this includes the identification of particular landform land units that apply specific controls to dune and wetland systems, forest and bush areas etc. Inherent within these landforms is recognition of the ecological features. Sites of ecological significance and sensitive areas have also been identified which overlay the land unit controls. General tree protection rules also protect trees above a particular height and girth and there are other development controls that help protect ecological values. Therefore, the panel considers there are sufficient controls within the Plan to provide for the protection and management of the natural environment in its totality. Therefore the panel recommends that this submission be accepted with no amendments to the Plan. 4.3 Submissions about an ecological survey Submissions dealt with in this section: 315/2, 949/1, 1028/1, 1051/1, 1349/4, 1382/4, 1419/4, 1446/4, 1477/4, 1497/4, 1500/4, 1503/2, 1506/4, 1510/2, 1555/4, 1934/4, 1965/4, 1969/4, 1985/4, 2147/4, 2163/4, 2171/4, 2176/4, 2198/4, 2208/4, 2257/4, 2275/4, 2314/4, 2342/4, 2349/4, 2361/4, 2406/4, 2416/4, 2422/4, 2473/4, 3521/56, 3521/162, 3640/4, 3684/4, 3688/2, 3756/4, 3763/ Decisions requested These submissions raise the following issues: identifying vital ecological values which need protection for the council to commit to an ecological survey of Great Barrier to be undertaken in consultation with the Community Board and landowners carryout extensive ecological survey exclude existing cleared areas, roads, gardens, house sites further investigative work so that the true extent of SES s is checked review the ecological values of all dune systems on Great Barrier and ensure there are mechanisms for protection and restoration Page 6

7 DR / Panel s analysis and recommendations Ecological survey/review Submission 315/2 seeks for the Plan to examine specific localities and identify the vital ecological values which need protection. The panel notes that the Plan does identify the significant ecological values on the islands and provides them with protection through scheduling them. Further restrictions, through clause 7.11, are placed on land that is located within a site of ecological significance or sensitive area to ensure that activities do not damage the inherent values for which these significant areas have been scheduled for. Therefore the panel recommends that this submission be accepted as the Plan currently identifies significant ecological areas and provides protection. Submissions 1349/4, 1382/4, 1419/4, 1446/4, 1477/4, 1497/4, 1500/4, 1506/4, 1555/4, 1934/4, 1965/4, 1969/4, 1985/4, 2147/4, 2163/4, 2171/4, 2176/4, 2198/4, 2208/4, 2257/4, 2275/4, 2314/4, 2342/4, 2349/4, 2361/4, 2406/4, 2416/4, 2422/4, 2473/4, 3640/4, 3684/4, 3756/4 and 3763/4 seek for the council to commit to an ecological survey of Great Barrier Island in 2007 to be undertaken in consultation with Great Barrier Community Board, residents and landowners. Submission 949/1 seeks for the council to review sites of ecological significance consulting with the owners of the land and surveying for accuracy. Submissions 1503/2, 1510/2 and 3688/2 seek for the council to undertake a careful site survey in consultation with affected landowners and with their full cooperation to assess and identify exactly what feature it wishes to protect. Mr Downie and Mr Robertson attended the hearing to provide further evidence. The sites of ecological significance and sensitive areas for the outer islands were rolled over from the operative Plan. Post notification of the Plan, and in response to submissions, ecologists did reassess a number of sites on Great Barrier. The process for this was to contact property owners that had submitted on the Plan about a particular SES or SA and if the property owner granted permission, visit the site and assess its ecological values. If permission to enter the property was not granted by the property owner then where possible it would be assessed from an adjacent property or public land. While some modifications were recommended to the boundaries of the ecologically significant sites all of the sites that were visited were considered to have ecological significance. In terms of the accuracy of the information the panel acknowledges that as the ecology for Great Barrier was not reassessed for the proposed Plan using modern GPS techniques, the information is unlikely to be as accurate as that for the inner islands. As outlined in clause of the Plan it was not possible to identify and assess the entire heritage for the gulf islands at the time of notification. As such, the panel anticipates that further work does need to be undertaken on a range of heritage matters such as ecology. Therefore the panel recommends that these submissions are accepted in part as further site surveys and ecological assessments of specific sites were undertaken. However, as decisions on undertaking further ecological work are not made by the panel it is not possible to accept the submissions in full. Submissions 1028/1 and 1051/1 seek for the council to carryout an extensive ecological survey to justify the significance of special sites and to exactly delineate the extent of the designations before imposing a restrictive designation on privately owned land. Existing cleared areas, roads, gardens, house sites and woodlots should be excluded. As noted above and in clause of the Plan at the time of notification of the Plan it was not possible to identify and assess the heritage items for all the islands. The extent of the sites Page 7

8 DR / of ecological significance is shown on the planning maps and in the case for sites of ecological significance on Waiheke in appendix 1d. The panel considers it inappropriate to show the extent of the sites of ecological significance and sensitive areas for Great Barrier in appendix 2d due to their large extent and the scale of the diagrams. The planning maps for the outer islands show with reasonable clarity the location of the SES s and SA s. The panel does not consider it practical to exclude small areas that do not have significant ecological values such as roads and house sites due to the scale of the maps. It is however noted that in section of this report it is recommended to permit a certain level of vegetation removal for maintenance around existing dwellings, along fence lines and driveways within SES s and SA s. Therefore the panel recommends that these submissions be accepted in part True extent of SES s Submission 3521/56 seeks for the council to undertake further investigative work so that the true extent of SES s are checked and verified. They also note that the extent of a number of sites of ecological significance on Waiheke extend beyond the SES boundaries into bush residential zoning. An example of this is the Kuakarau Bay SES 11, where the forest continues beyond the marked SES. Ecological surveys were undertaken for the majority of the inner gulf islands and a number of areas were identified, assessed and scheduled as sites of ecological significance. However, not all bush areas in the gulf islands necessarily meet the criteria for protection in the Plan and as such have not been scheduled. Notwithstanding this, it should be noted that the ecology of the Hauraki Gulf islands is protected through a variety of techniques. At a broad level this includes the identification of particular landform land units that apply specific controls to dune and wetland systems, forest and bush areas etc. Inherent within these landforms is recognition of the ecological features. Sites of ecological significance and sensitive areas overlay the land unit controls. General tree protection rules also protect trees above a particular height and girth and there are other development controls that help protect ecological values. Notwithstanding this, the panel also notes that the use, development and protection of the Hauraki Gulf island s natural resources need to be managed at a way or rate so that people and communities can provide for their social, cultural and economic wellbeing. Therefore, it is considered important to find an appropriate balance to ensure that sustainable management is promoted. As noted in clause of the Plan some of the islands were not re-assessed for their ecological value and a plan change or variation may be required to update this information. However, it is not intended to reassess those inner gulf islands that have already being subject to ecological surveys. Therefore the panel recommends that this submission be rejected Review Submission 3521/162 seeks for the council to review the ecological values of all dune systems on Great Barrier (with specific reference to Okupu, Palmers and Overtons Beach). Ensure that mechanisms for protection and restoration are developed and included in the Plan, this may include the closing of unformed road at Palmers Beach. Representatives of the ARC attended the hearing to provide further evidence. These areas generally have a dune system landform applied to them which inherently recognises their ecological importance and applies suitably restrictive provisions. Therefore, while the panel acknowledges that the ecological values of these areas may need re-assessing, their ecological importance is recognised in the application of that land unit. In relation to unformed legal roads council has a road legalisation process in place for Great Barrier. Page 8

9 DR / However, this process is extremely time consuming, complicated and costly. The panel notes that it is also a process that is undertaken outside the scope of a Plan review. Therefore the panel recommends that this submission be rejected. 4.4 Submissions about compensation Submissions dealt with in this section: 794/2, 3695/ Decisions requested Submission 794/2 seeks significant rates relief as compensations as the council has now declared some two-thirds of our property at 218 Te Whau Drive as a SES (SES 23) which severely restricts the land use and development opportunities now available to us. Submission 3695/3 seeks for the council to mitigate the highly inequitable effects of some of the council s designations (specifically for heritage sites in southern Great Barrier) which result in some landowners being much more heavily penalised than others in the promotion of the council s policies. The financial burdens of the council s policies should be much more equitably distributed among Great Barrier residents, landowners and visitors Panel s analysis and recommendations The panel heard from a number of submitters on Great Barrier and Waiheke in relation to rates vs. the District Plan. The panel considered that the points raised required further investigation so advice was sought from council s Finance group. In summary the panel advise: 1. The council is legally required to perform a citywide property revaluation every three years. For the 2008 valuation, the council applied robust revaluation methods that have been audited by the Valuer General, and individuals were given the opportunity to object to valuations. 2. The revaluation is required to reflect the overall movement in the three years since the 2005 revaluation. Although values may be declining at present, there were increases following the 2005 revaluation, and only since mid 2007 have they been in decline. While the number of recent sales on GBI was quite low, this was specifically considered by the Valuer General during the audit process. Council valuers sought additional information about the property market on GBI from real estate agents and private valuers familiar with the island and this additional information was used in conjunction with sales evidence during the audit. 3. The draft district plan has been in the public domain since September 2006 and any restrictions or perceived restrictions from the proposed land designations would have been factored into the sales prices determined by the market during this time. The valuations (on which rates are based) would therefore reflect the market s perception of the impacts, if there are any. 4. The council proposes to continue to base the rating definitions on actual land use are rated on the same basis. These principles are not unique to the islands; the same issues apply to all of Auckland city. 5. The council proposes renaming Rural 1, Farming and open space and expanding the definition to include vacant land and bush blocks on Waiheke, GBI and Rakino islands greater than five hectares. (Properties in the Farming and open space category are Page 9

10 DR / charged lower rates than residential properties). This change is proposed in the Long Term Council Community Plan. Submitters are reminded that they can formally object to their valuation. In relation to SES 23 on Te Whau peninsula it is noted that Waiheke was reassessed for its ecological values as part of the Plan review process. Therefore, while the aerial photo that is used for the SES may be outdated the information used to protect the area is suitably current. In terms of compensation for this particular site it is noted that a similar sized SES to that in the proposed Plan was included in the operative Plan. Therefore, the restrictiveness of land use and development opportunities is similar now to what it has been for the last 10 plus years. Notwithstanding that, the panel considers that council is meeting its statutory obligations by providing protection through the Plan to ecologically significant areas. However, in doing so the panel is mindful of the need to balance this requirement against the need for people and communities to provide for their social, economic and cultural wellbeing. In seeking to achieve this some modifications are recommended to the rules for SES s that reduce the overall activity status from discretionary to restricted discretionary and enable some works to occur as a permitted activity. In terms of rates relief and compensation these are issues that are outside the Plan review process. Accordingly, the panel recommends that these submissions be rejected. 4.5 Submissions about criteria Submissions dealt with in this section: 3695/ Decisions requested Submission 3695/1 seeks for the Plan to give consistent and objective criteria for the selection of heritage sites (specifically for southern Great Barrier) Panel s analysis and recommendations The criterion for scheduling heritage sites is in appendix 4. These criteria are used to assess all heritage sites and are therefore consistent. The criteria are objective to the point that the assessment is carried out by an experienced specialist in the appropriate field. Therefore the panel recommends that this submission be accepted. 4.6 Submissions about clause Submissions dealt with in this section: 1316/1, 1424/1, 1449/1, 1462/1, 1466/1, 1469/1, 1566/1, 1963/1, 1977/1, 1986/1, 1991/1, 2143/1, 2159/1, 2241/1, 2276/1, 2315/1, 2405/1, 2424/1, 2427/1, 2443/1, 2456/1, 2863/1, 3421/1, 3742/1, 3765/ Decisions requested These submissions seek for clause to be amended to state: How to ensure that ecologically significant sites, which have been depleted by a variety of land uses, will be adequately protected by the Plan. How to ensure the landowners and residents are adequately consulted in the process of identifying and protecting sensitive sites. How to balance the need to protect sensitive sites while recognising the rights of owners to enjoy their properties and maintain their economic, social and cultural rights in respect of the properties. Page 10

11 DR / Panel s analysis and recommendations The issues are statements about existing or potential problems in the islands that must be resolved to achieve sustainable management. The issues statements in the Plan apply the RMA to the specific circumstances of the islands. The first proposed issue relates to consultation with the landowners in identifying and protecting sensitive sites. The task of identifying sensitive areas is given to an experienced ecologist and scheduling is determined based on an assessment of ecological significance. Landowners had the opportunity to be involved in consultation during the drafting of the proposed Plan in 2005, and through notification of the Plan there has been the opportunity for further public participation through the formal submission and hearing process. The council encouraged those people who were affected by, or have an interest in, the matter to present their views at the hearings. The panel recognise that issue documents were prepared for Great Barrier to launch the consultation process followed by workshops and thus it is considered that sufficient consultation was undertaken. The second proposed issue relates to a balance between protecting significant vegetation and recognising the need for land to be used for living. The panel considers this to be an important issue of balancing the restrictions imposed by the Plan and the needs of the community. In section 4.10 of this report the panel acknowledges that further work is needed to ensure that consideration is given to the needs of the community. The panel recommends that a new issue be included acknowledging the effect of scheduling on the community. Therefore the Panel recommends that these submissions be accepted in part. 4.7 Submissions about clause Submissions dealt with in this section: 3521/54, 3521/ Decisions requested Submission 3521/54 seeks to retain clause (1) and retain sites of ecological significance. Submission 3521/68 seek to amend clause (4) to read by maintaining or enhancing populations of threatened or protected species and threatened ecosystems such as wetlands and dunefields Panel s analysis and recommendations Support The panel recommends that submission 3521/54 be accepted as it seeks to retain policy 1 which sets out the actions the council will undertake to achieve the objective to protect significant ecological sites. It also seeks to retain sites of ecological significance; this is supported by the panel as it is a matter of national importance under the RMA to protect areas of significant indigenous vegetation Clause (4) Clause (4) states: By avoiding the loss of threatened or protected species within sites of ecological significance and sensitive areas. Page 11

12 DR / The submitter wishes to expand the clause to read: by maintaining or enhancing populations of threatened or protected species and threatened ecosystems such as wetlands and dunefields. It is unclear to the panel as to whether the submitter is seeking for this wording to replace policy 4 or to be included at the end of the policy. Policy 4 is a broad action from the council to achieve the protection of sites of ecological significance and sensitive areas. The suggested amendment is not considered appropriate as it relates to a broader level of protection that would extend beyond those areas that are defined as being ecologically significant sites. Therefore the proposed wording is considered unnecessary and the panel recommends that this submission be rejected. 4.8 Submissions about clause Submissions dealt with in this section: 558/ Decisions requested Submission 558/1 seeks to amend clause to ensure that only sites of actual significance are included Panel s analysis and recommendations The submitter states that sites of ecological significance include areas of significance as well as driveways and other areas that are not significant. Due to the scale of the maps the panel does not consider it practical to exclude small areas such as driveways from the SES s. Therefore the panel recommends that this submission be rejected. However, the panel notes that it has been recommended in this report to include permitted activities such as the maintenance of accessways so that the restrictions do not negatively affect the areas within the SES which are not significant. 4.9 Submissions about clause Submissions dealt with in this section: 941/41, 1106/1, 1106/2, 1243/59, 1301/1, 1308/1, 1412/1, 1481/1, 1508/1, 1577/1, 1927/1, 1958/1, 1972/1, 1984/1, 2114/1, 2145/1, 2155/1, 2170/1, 2247/1, 2274/1, 2322/1, 2346/1, 2372/1, 2378/1, 2390/1, 2401/1, 2411/1, 2439/1, 2452/1, 2453/1, 2454/1, 2459/1, 2460/1, 2464/1, 2470/1, 2475/1, 2855/1, 3033/1, 3104/3, 3521/67, 3551/1, 3551/2, 3551/3, 3551/4, 3551/5, 3551/6, 3641/1, 3687/1, 3695/5, 3741/1, 3766/1, 3800/1, 3846/ Decisions requested These submissions relating to clause in general relate to the following issues: rules to work that is authorised by regulations or statutes grazing of animals complying with the Act opposition to the clause entirely support for the clause allowing various activities to occur as permitted. Page 12

13 DR / Panel s analysis and recommendations New activity Submission 941/41 seeks for a new rule to be included in clause to provide for the actions of any person in carrying out work which is authorised by statute or regulations as a permitted activity. Adding this activity would allow companies and government agencies to undertake work without a resource consent or involvement of the council in assessing the potential effects on the significant ecological site. Acts such as the Electricity Act 1992 may authorise a registered electrician to do work which is authorised by statute. Given the ecological importance of the gulf islands, providing for network utility operators to undertake works as a permitted activity may result in an unacceptable level of effects on the scheduled item. As such, the panel does not consider it appropriate to permit work on a scheduled geological item as a permitted activity. The panel also notes that section 330 of the RMA provides for emergency works and power to take preventive and remedial action. Therefore, in emergency situations network utility operators can undertake works without having to comply with the relevant section of the RMA, such as section 9 restriction on use of land. Therefore the panel recommends that submission 941/41 be rejected Requirement outlined by part 3 section 9 (4) (c) of the RMA Submission 1106/2 seeks that the requirement outlined by Part III 9(4) (c) of the RMA be adequately complied with, particularly in relation to the grazing of cattle on legal roads adjoining unfenced sensitive areas, specifically SES 57-3 and The panel notes that the council has objectives, policies and rules for SES and SA s which, as notified, require consent for works within a SA. While modifications are recommended to these provisions it is considered that these amendments effectively outline the land use requirements in terms of s9 of the RMA. Therefore the panel recommends that this submission be rejected Grazing Grazing - for Submission 1243/59 seeks for the Plan to provide for grazing to take place as a permitted activity on ecologically significant sites in rural locations that are in private ownership and that are farmed. Federated Farmers attended the hearing to provide further evidence. The panel notes that farmers may have existing use rights to continue grazing on land that has been scheduled as a site of ecological significance. Notwithstanding this, grazing within a site of ecological significance would only require a resource consent if it will result in modification, damage or destruction to any indigenous vegetation or if the underlying land unit requires consent for grazing. The panel also notes that from an ecological perspective grazing within a site of ecological significance can cause significant damage and result in the loss of ecological values. The panel does not consider it necessary to specifically provide for grazing as a permitted activity as this is the purpose of the land units. Accordingly, the panel recommends that this submission be rejected. Grazing against Submission 1106/1 seeks for the grazing of cattle on legal roads adjoining unfenced sensitive areas particularly sites of ecological significance 57-3 and 60-1, be either prohibited entirely, or be effectively controlled so that damage to the sensitive areas does not continue to occur. The panel does not it appropriate to make the activity of grazing cattle on legal roads adjoining unfenced sensitive areas a prohibited activity. A prohibited activity status can only Page 13

14 DR / be used for activities were there are no circumstances were such an activity would be appropriate. Prohibited activities must be backed with strong evidence of its necessity and that it would never be appropriate. The panel does not consider that sufficient justification for this activity status could be provided as the land in which the grazing occurs on is not within a sensitive area and the council is not trying to achieve the protection of legal roads from grazing. The panel also notes that as sensitive areas are largely on private land, the council has no authority to fence these areas from livestock. Accordingly, the panel recommends that this submission be rejected. Submission 3695/5 seeks for the Plan to provide practically enforceable means whereby damage to sensitive and heritage areas by grazing cattle is prevented. As there are controls in the Plan that require a consent for damage to vegetation in sensitive areas it is considered that the Plan already has practically enforceable rules to control damage to sensitive areas. Therefore the panel recommends that this submission be accepted with no amendments to the Plan Opposition and support to clause Opposition to clause Submission 3104/3 opposes clause The council has a legal requirement under section 6 of the RMA to protect areas of significant indigenous vegetation and significant habitats of indigenous fauna as a matter of national importance. For that reason, and for the reasons outlined in the Plan, the section 32 analysis and this report, the panel recommends that this submission be rejected. Submissions 1301/1, 1308/1, 1412/1, 1481/1, 1508/1, 1577/1, 1927/1, 1958/1, 1972/1, 1984/1, 2114/1, 2145/1, 2155/1, 2170/1, 2247/1, 2274/1, 2322/1, 2346/1, 2372/1, 2378/1, 2390/1, 2401/1, 2411/1, 2439/1, 2452/1, 2453/1, 2454/1, 2459/1, 2460/1, 2464/1, 2470/1, 2475/1, 2855/1, 3033/1, 3641/1, 3687/1, 3741/1, 3766/1 and 3800/1 seek for the removal of clause (1). Clause (1) states that the following is a discretionary activity: Any proposal to cut, damage, alter or destroy any indigenous plant (including its roots) within a scheduled site of ecological significance or sensitive area. Mr Somerville-Ryan attended the hearing to provide further evidence. The submissions state that this clause severely limits any activity which residents and landowners can undertake without requiring a consent and deprives them of enjoying their properties. The panel acknowledges that vegetation clearance for some activities such as maintaining lawfully existing activities needs to be permitted. This then provides for more activities to occur within sites of ecological significance without requiring a consent. The panel also recommends that the activity status be changed to restricted discretionary activity for those works and activities that do not comply with the permitted activity standard. Therefore, while the panel recommends changes to the relevant clause it does not consider it appropriate to remove this clause and as such recommends that these submissions are rejected. Support for clause Submission 3521/67 seeks to retain the rules for ecologically significant sites under clause The panel recommends that this submission be accepted in so far as it supports the amendments recommended above in section of this report. Page 14

15 Maintenance and existing activities DR / Submission 3551/1 states the need to be able to maintain the existing buildings/bach on the Noises (map ref 32-1) used by the family and also by weed control contractors and research scientists. This requires regular repairs and maintenance and seeks amendments to relevant provisions to allow the bach to be rebuilt if it is ever destroyed by fire or vandalism. Submission 3551/4 and 3551/5 seek for the Plan to allow for: for the need to maintain existing access pathways/tracks on the Noises which requires annual trimming of trees and shrubs for the need to keep the bush trimmed around the existing dwelling/buildings In section of this report it has been recommended that clause be amended to give the following activities among others a permitted activity status: The clearance of vegetation for the maintenance of lawfully established existing dwellings and accessways. The eradication, control or management of plant pests listed in appendix 14. Therefore the submitter can undertake maintenance of existing buildings and accessways, and eradication of plant pests as of right. However, submission 3551/1 also seeks for the bach to be rebuilt if it was burnt down in a fire. A proposal to rebuild the bach would have to comply with the land unit rules and in this case land unit Conservation. In this land unit, the construction of a building is a restricted discretionary activity and therefore consent would be required. If the building platform exists and no vegetation needs to be modified or cleared then there would be no further restrictions relating to the site of ecological significance. The panel also notes that sections 10 and 10b of the RMA outline certain existing use rights and instances where certain existing building works are allowed. Therefore the panel recommends that submission 3551/1 be accepted in part and submissions 3551/4 and 3551/5 be accepted based on the above recommendation in section of this report. Submissions 3551/2, 3551/3 and 3551/6 seek for the Plan to allow: the possibility of extending the bach/larger building or second small building as the family groups existing long drop toilet to be used 3-4 weeks per year for the existing outdoor fireplace used for heating water and cooking. Extending bach or second building An extension to the existing bach or construction of a new building would have to comply with the land unit rules and therefore would require a resource consent under land unit Conservation. Further, a consent would be required if vegetation had to be modified or cleared to provide for a building platform. Therefore there is an opportunity to extend the building but it will require a consent. The panel recommends that this submission be accepted in part. Using existing long drop toilet and outdoor fireplace As the toilet and fireplace are existing and no vegetation will be cleared to use these items, no resource consent will be required by part of the Plan. Therefore the panel recommends that these submissions be accepted in part. The panel notes that wastewater is regulated by the Auckland Regional Council. Page 15

16 Vegetation clearance DR / Submission 3846/1 seeks for all vegetation clearance to be a restricted discretionary activity with respect to clause The suggested amendments to clause also recommend changes to the rules to permit some activities to occur as of right as well as changing the overall activity status to restricted discretionary. The rationale for this is that council s discretion can be adequately restricted to ecological issues, and it is not necessary to broaden the range of issues considered which may occur through a full discretionary activity. Therefore the panel recommends that this submission be accepted Submissions about clause Submissions dealt with in this section: 1300/1, 1421/1, 1458/1, 1472/1, 1513/1, 1534/1, 1901/1, 1902/1, 1983/1, 2253/1, 2265/1, 2348/1, 2448/1, 2486/1, 2532/1, 3642/1, 3683/1, 3767/1, 3739/ Decisions requested Submissions 1300/1, 1421/1, 1458/1, 1472/1, 1513/1, 1534/1, 1901/1, 1902/1, 1983/1, 2253/1, 2265/1, 2348/1, 2448/1, 2486/1, 3642/1, 3683/1, 3767/1 and 3739/1 seek for the following bullet points to be added in clause : The extent to which any development or modification of a site may act to support the recovery of the environment including, but not limited to: o Pest control o Stock and access control o Compensatory planting o Establishment and development of seed banks/reserves o Introduction of rare and endangered species (flora and fauna) The extent to which any development or modification of a site may enhance the economic potential of the site, the economic well-being of the residents and landowners, and economic development of the island. Whether the proposed activity reflects established or historic patterns of land use for the island. Whether the activity promotes the economic, social and cultural enjoyment of the property in a sustainable way. Whether the proposed activity will significantly change the character of the wider ecological area in which the site is located. Submission 2532/1 seeks to add the following assessment criteria: Pest control Stock and access control Compensatory planting Establishment and development of seed banks Introduction of rare and endangered flora and fauna Panel s analysis and recommendations As it has been recommended to change the activity status from discretionary to restricted discretionary for activities other than those that are permitted, it is appropriate to include additional matters of discretion to consider a wider range of issues. The matters of discretion require refinement to include matters relating to the significance of the particular area where the proposed works are located and to consider the positive effects Page 16