Proposed Kaipara District Plan. Decision Report of the Hearings Panel. Sub Report 2 Excavation and Fill and Vegetation Clearance

Transcription

1 Proposed Kaipara District Plan Decision Report of the Hearings Panel Sub Report 2 Excavation and Fill and Vegetation Clearance 31 August 2011

2 Table of Contents 1 Key Changes Principal Issues Key Changes to the Sub Report Introduction Overview of the Hearing Process Statutory Framework Analysis of Submissions Decision Report Structure Decisions Relating to Excavation and Fill [WOR SR2.1] Exclude Forestry from Earthworks and Vegetation Clearance Rules where the activity meets the Forest Accord [WOR SR2.2] Exclude farming from excavation and fill controls in the Rural Zone and amend Rural Excavation and Fill Rule thresholds to be the same as the Northland Regional Water and Soil Plan [PAN SR2.1] Interpretation of Excavation and Fill Rules [PAN SR2.2] Performance Standards for the Excavation and Fill Rules [PAN SR2.3] Excavation and Fill Rules: Assessment Criteria Decisions Relating to Vegetation Clearance [WOR SR2.3] Vegetation height limits and area limits [WOR SR2.4] Vegetation Clearance specific Rule amendments [PAN SR2.4] Vegetation Clearance Rules General [PAN SR2.5] Vegetation Clearance Rules: Assessment Criteria [PAN SR2.6] Decisions on submissions that did not request a specific change to the Excavation and Fill or Vegetation Clearance Rules August 2011 // Page i

3 1 Key Changes 1.1 Principal Issues The Hearings Panel (the Panel ) has reviewed the Proposed Kaipara District Plan (the Plan ) and associated documentation, submissions and further submissions, the Hearing Report, and evidence presented at the Hearing. The Panel has determined the principal issues in contention that they were required to consider in respect of the Excavation and Fill and Vegetation Rules across the five zone chapters, being Chapters 12: Rural, 13: Residential, 14: Business, 15A: Maori Purposes Maori Land and 15B: Maori Purposes Treaty Settlement Land. These are listed as follows: 1. Exclusions to the Excavation and Fill Rules for certain activities: farming, network utilities, tank pulls, forestry, and horticulture; 2. Improving the clarity of the Excavation and Fill and Vegetation Clearance Rules and Assessment Criteria; 3. More directive assessment criteria in relation to ecological areas, Outstanding Landscapes and Cultural effects and cross references to the Policy Framework in other Chapters of the Plan; and 4. Removing references in the assessment criteria as to whether resource consent has been obtained from the Northland Regional Council. 1.2 Key Changes to the Sub Report In considering the above issues, the Panel has considered the merits / benefits or relative costs / disadvantages of the Plan (and those submissions in support) or the relief sought in those submissions in opposition to the Plan and weighed these against the overarching purpose and principles of Part 2 of the Resource Management Act 1991 (the RMA ) and the other key planning and statutory documents including the New Zealand Coastal Policy Statement (NZCPS), Northland Regional Policy Statement and relevant Regional Plans. In taking this balanced approach, the Panel concludes that a number of amendments to the Rules within these chapters will better enable the Plan to achieve the principle and purpose of the RMA (providing for the sustainable management of the district s land resources), and improve the effectiveness and efficiency of the Rules in achieving the objectives and policies within the zones. In summary, key amendments to the Excavation and Fill and Vegetation Clearance Rules include: 1. Amendments to the rules defining Excavation and Fill activities that require consent to exclude farming, network utilities, underground storage tanks, horticulture and forestry companies that are signatories to the New Zealand Forest Accord; 2. Amendments to Rule Rural Zone to change the excavation and fill volumes to the same volumes and areas set out in the Water and Soil Plan for Northland (except in Overlay areas); 3. Amendments to the Rules to improve interpretation by making it clearer when sub clauses apply to the Overlays and to identify that there is a definition in the Plan for Excavation and Fill and Vegetation Clearance; 4. Amendments to the Excavation and Fill assessment criteria to: a) Remove the reference to whether resource consent has been obtained from Northland Regional Council; b) Include specific reference to Appendix 24G Assessments of Ecological Areas and Outstanding Landscape Areas; 31 August 2011 // Page 1

4 c) Include a new assessment criterion for Excavation and Fill Rules which takes into consideration cultural and heritage values and the extent to which consultation has been undertaken with tangata whenua; d) Include a new assessment criterion for Excavation and Fill Rules which takes into consideration the relevant objectives and policies in Part A and C of the Plan; 5. Removal of the exclusions to the Vegetation Clearance Rule; 6. Insertion of a new definition for Vegetation Clearance 7. Amendments to simplify the Vegetation Clearance Rules and to make it consistent with the structure of other rules in the Plan; 8. Inclusion of a new permitted activity performance standard which requires resource consent for clearance of indigenous vegetation within areas identified in Appendix F (Kiwi Density); 9. Amendments to the Vegetation Clearance Rule assessment criteria to: a) Include a specific reference to Appendix 24G (Assessment of Ecological Areas) and Outstanding Landscape Areas; b) Include a new assessment criterion which considers contribution to an ecological corridor; c) Include a new assessment criterion for Vegetation Clearance Rules which takes into consideration the relevant objectives and policies in Part A and C of the Plan. 31 August 2011 // Page 2

5 2 Introduction This report contains the decisions of the Panel of the Kaipara District Council (the Council ) on submissions and further submissions (hereafter referred to as submissions) on the Excavation and Fill and Vegetation Clearance rules contained within the five zone chapters, being Chapters 12: Rural, 13: Residential, 14: Business, 15A: Maori Purposes Maori Land and 15B: Maori Purposes Treaty Settlement Land of the Plan. The rules applying to Chapter 16: Estuary Estates are addressed separately in the Chapter 16 Decision Report. 2.1 Overview of the Hearing Process The Plan review process is summarised briefly below. The Plan was publicly notified on 21 October The closing date for lodging submissions was 18 December The submissions were publicly notified for further submissions on 1 March The closing date for lodging further submissions was 12 March A summary report of all submissions and further submissions was released in April 2010, combining the two summary reports for submissions and further submissions. Hearing Reports were then prepared which provided the reporting planner s recommendations on 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. Hearings were held in June through to August 2010 to provide the opportunity for submitters to speak in support of their submissions. 2.2 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 have been considered in light of the relevant statutory matters. These matters were summarised by the Environment Court 1, which set out a summary of the mandatory requirements for district plans or plan changes as follows: A. General requirements 1. A district plan (change) should be designed to accord with, and assist the territorial authority to carry out its functions so as to achieve, the purpose of the Act. 2. When preparing its district plan (change) the territorial authority must give effect to any national policy statement or New Zealand Coastal Policy Statement. 3. When preparing its district plan (change) the territorial authority shall: (a) have regard to any proposed regional policy statement; (b) not be inconsistent with any operative regional policy statement. 1 Long Bay Okura Great Park Society Inc. v North Shore City Council A078/08 (paragraph 34) 31 August 2011 // Page 3

6 4. In relation to regional plans: (a) the district plan (change) must not be inconsistent with an operative regional plan for any matter specified in section 30(1) [or a water conservation order]; and (b) must have regard to any proposed regional plan on any matter of regional significance etc.; 5. When preparing its district plan (change) the territorial authority must also: have regard to any relevant management plans and strategies under other Acts, and to any relevant entry in the Historic Places Register and to various fisheries regulations; and to consistency with plans and proposed plans of adjacent territorial authorities; take into account any relevant planning document recognized by an iwi authority; and not have regard to trade competition; 6 The district plan (change) must be prepared in accordance with any regulation (there are none at present); 7. The formal requirement that a district plan (change) must also state its objectives, policies and the rules (if any) and may state other matters. B. Objectives [the section 32 test for objectives] 8. Each proposed objective in a district plan (change is to be evaluated by the extent to which it is the most appropriate way to achieve the purpose of the Act. C. Policies and methods (including rules) [the section 32 test for policies and rules] 9. The policies are to implement the objectives, and the rules (if any) are to implement the policies; 10. Each proposed policy or method (including each rule) is to be examined, having regard to its efficiency and effectiveness, as to whether it is the most appropriate method for achieving the objectives of the district plan taking into account: D. Rules (a) the benefits and costs of the proposed policies and methods (including rules); and (b) the risk of acting or not acting if there is uncertain or insufficient information about the subject matter of policies, rules, or other methods. 11. In making a rule the territorial authority must have regard to the actual or potential effect of activities on the environment. E. Other statues: 12. Finally territorial authorities may be required to comply with other statutes. Within the Auckland Region they are subject to: the Hauraki Gulf Maritime Park Act 2000; the Local Government (Auckland) Amendment Act 2004." 31 August 2011 // Page 4

7 NOTE: This decision was issued prior to the 2005 RMA amendments. Those amendments included changes to section 75 of the RMA which deals with the contents of a district plan. Therefore in paragraph 3 of the summary, where it states that a district plan shall not be inconsistent with any regional policy statement, this should now state that a district plan should give effect to a regional policy statement. Part 2 of the RMA sets out the Act s purpose and principles. The purpose of the RMA is to promote the sustainable management of natural and physical resources. 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) Safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and (c) Avoiding, remedying, or mitigating any adverse effects of activities on the environment. Part 2 of the RMA also requires Councils to recognise and provide for matters of national importance stated in Section 6. Councils must also have particular regard to other matters listed in Section 7 and in Section 8 to take account of the principles of the Treaty of Waitangi. These 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) 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: (b) the control of any actual or potential effects of the use, development, or protection of land, including for the purpose of (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: (c) (d) The control of the emission of noise and the mitigation of the effects of noise: (e) The control of any actual or potential effects of activities in relation to the surface of water in rivers and lakes. The Panel has had regard to Section 32 of the RMA (consideration of alternatives, benefits, and costs) throughout its deliberations and decision making. Section 32 states: (1) In achieving the purpose of this Act, before a proposed plan, proposed policy statement, change, or variation is publicly notified, a national policy statement or New Zealand coastal policy 31 August 2011 // Page 5

8 statement is notified under section 48, or a regulation is made, an evaluation must be carried out by (a) the Minister, for a national environmental standard or a national policy statement; or (b) the Minister of Conservation, for the New Zealand coastal policy statement; or (c) the local authority, for a policy statement or a plan (except for plan changes that have been requested and the request accepted under clause 25(2)(b) of Schedule 1); or (d) the person who made the request, for plan changes that have been requested and the request accepted under clause 25(2)(b) of Schedule 1. (2) A further evaluation must also be made by (a) a local authority before making a decision under clause 10 or clause 29(4) of Schedule 1; and (b) the relevant Minister before issuing a national policy statement or New Zealand coastal policy statement. (3) An evaluation must examine (a) the extent to which each objective is the most appropriate way to achieve the purpose of this Act; and (b) whether, having regard to their efficiency and effectiveness, the policies, rules, or other methods are the most appropriate for achieving the objectives. (3A) This subsection applies to a rule that imposes a greater prohibition or restriction on an activity to which a national environmental standard applies than any prohibition or restriction in the standard. The evaluation of such a rule must examine whether the prohibition or restriction it imposes is justified in the circumstances of the region or district. (4) For the purposes of the examinations referred to in subsections (3) and (3A), an evaluation must take into account (a) the benefits and costs of policies, rules, or other methods; and (b) the risk of acting or not acting if there is uncertain or insufficient information about the subject matter of the policies, rules, or other methods. (5) The person required to carry out an evaluation under subsection (1) must prepare a report summarising the evaluation and giving reasons for that evaluation. (6) In addition to the matters listed above the following are relevant to considering the submissions on the Plan: 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)). 31 August 2011 // Page 6

9 3. The Plan must be not inconsistent with any regional plan (s75(4)). 4. A rule must not be more lenient and can only be more stringent than a national environmental standard if the standard expressly says that a rule may be more stringent than it (s43b(1) and (3)). 2.3 Analysis of Submissions The following sections contain the decisions the Panel has made after considering the submissions, further submissions and any written or verbal evidence tabled in support of those submissions at the Hearing and the recommendations made in the reporting planner s report. The full Panel determined all decisions apart from decisions relating to the Council submission. The independent chair determined those decisions on the Council submissions to ensure an impartial decision was reached. The Hearing Reports summarised the reasons for the submissions and the decisions sought. This has not been repeated in this report for each submission. A discussion of the decision sought has been provided, where it assists in understanding the decision made by the Panel, in particular where this is different to that recommended by the reporting planner. To assist submitters the Panel has cross referenced its decisions with the relevant Hearing Report. Copies of all Hearing Reports are available from Council offices, libraries and the website; Evidence tabled 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. All evidence has however, been carefully considered. While the relevant statutory matters (identified in section 2.2 of this report) will not necessarily be referred to directly, the discussion and decisions have given appropriate consideration to these and any other relevant matters. The report recommends whether each submission should be accepted or rejected (in full or in part) and what amendments should be made to the Plan to address matters raised in submissions. The decisions of the Hearings Panel are not necessarily the same as those contained in the Hearing Reports. Further submissions are not specifically addressed but are dealt with in conjunction with the submission to which they relate. It is noted that many further submissions were made collectively to the submission points raised by a submitter. The reference to accept or reject a further submission as noted in this report only relates to the specific submission point being considered in that specific section of the Hearing Report. Decisions of the Panel have been made pursuant to Clause 10 of the First Schedule of the RMA which states that a local authority may group submissions without giving a decision that addresses each submission individually. As such the Panel has considered the submissions received collectively by issue and has endeavoured to identify all submissions in the submission lists (within the respective Decision Reports). These lists are not necessarily exhaustive and the Panel notes that where a submission has not been individually identified in the report, this does not mean that the submission point has not been considered in the Panel s deliberations and decisions. Clause 16(2) of the First Schedule provides the opportunity for a local authority to make an amendment to the Plan to alter any information, where such an alteration is of minor effect, or may correct any minor errors (such as style, numbering, grammar and spelling). Where amendments have been made to correct minor errors these have not been listed separately in this report, but have been shown as strikethrough for deletions and underscore for insertions in the decisions version of the text provided in Appendix 1. Submissions which address matters relating to the whole of the Plan, the plan process and minor miscellaneous changes (grammar, spelling, punctuation and numbering and the like) are addressed 31 August 2011 // Page 7

10 separately in the General and Miscellaneous Report. Appendix 2 contains a list and cross reference of all submissions which have been transferred to other Decision Reports. 2.4 Decision Report Structure This report has been structured around two key areas of decisions on submissions: Those in respect of Excavation and Fill, and Vegetation Clearance. For each topic, the decisions on submissions were made in two phases and as such they have been divided into a number of separate sub sections. These subsections relate to Workshop decisions (WOR) and Panel decisions (PAN). Because of the number of decisions required to be made, the need for consequential amendments to the Plan that have flowed from some decisions, and the need (from an administrative perspective) to keep track of the decision making process and the actual changes to the provisions of the Plan, the distinction between Workshop (or 2010 decisions) and Panel (or 2011 decisions) has been retained purely for administrative reasons. Decisions have been made by the Panel over the extended deliberation period from late 2010 until September 2011 and all decisions were reviewed by the Panel during 2011 prior to the decision reports being finalised Workshop decisions (WOR) These sub-sections set out the decisions which highlighted those areas of submissions which may have required consequential amendments to the Plan and as such these decisions were made first (late 2010). These sub-sections set out the Panel s decisions as to whether the submissions are accepted, rejected or accepted in part, the reasons for those decisions, and any consequential amendments to the Plan arising from these decisions Panel decisions (PAN) These sub-sections set out the decisions where the potential for consequential amendments to the Plan were considered less likely and as such these decisions were made later (in 2011). These sub-sections set out the Panel s decisions as to whether the submissions are accepted, rejected or accepted in part, the reasons for those decisions, and any consequential amendments to the Plan arising from these decisions. 31 August 2011 // Page 8

11 3 Decisions Relating to Excavation and Fill 3.1 [WOR SR2.1] Exclude Forestry from Earthworks and Vegetation Clearance Rules where the activity meets the Forest Accord 2 A number of submissions were made to the Plan regarding earthworks and vegetation clearance rules where the activity meets the Forest Accord. These included: 1. Exclude plantation forestry (maintenance, upgrade and constructions of roads and landings) from Rule (441/8). 2. Add exemption to Rule to allow for ancillary damage to indigenous vegetation as a result of plantation forestry activities. Wording is as follows: Decision That submissions: Clearance of indigenous vegetation as a result of plantation forestry activities including: a. understory vegetation that has grown under and/or may have overtopped the plantation species; or b. areas of failed planting within the plantation forest in areas that have been cleared and planted within the current rotation ; or c. incidental damage and disturbance to indigenous vegetation adjacent to the crop as a result of harvesting where forestry best practice is followed; or d. clearance within 50m of a river associated with a river crossing that is provided for by a rule in a Regional Plan for Northland or by a resource consent granted by the Northland Regional Council provided the clearance is less than 500m 2 in any one instance. (441/9) Submission Point Submitter Name Hearing Report Page Decision 441/8 Fonterra Co-operative Group Ltd SR Be Accepted in Part FS481/5 Rayonier New Zealand Ltd SR Be Accepted in Part FS511/38 Farmers of New Zealand Inc., Kaipara Citizens and Ratepayers Association Inc., Pouto Topu A Trust SR Be Accepted in Part FS489/1 Northland RMA Forestry Forum SR Be Accepted in Part 441/9 Fonterra Co-operative Group Ltd SR2 31 Be Accepted in Part FS481/10 Rayonier New Zealand Ltd SR2 31 Be Accepted in Part FS489/1 Northland RMA Forestry Forum SR2 31 Be Accepted in Part FS511/23 Farmers of New Zealand Inc., Kaipara Citizens and Ratepayers Association Inc., Pouto Topu A Trust SR2 32 Be Rejected in Part 2 It is noted that these submissions also consider the Vegetation Clearance rules and methods of the District Plan. These provisions are considered further in section 4 of this report. 31 August 2011 // Page 9

12 3.1.2 Reason for Decision 1. In regard to submission 441/8, the Panel acknowledges the Plan s policy framework (particularly Objective , Policy and Outcome ), and notes that forestry can allow for communities to provide for their social and economic wellbeing. However, the Panel considers that the Council needs to balance this policy framework against any potential adverse effects on the environment. 2. In this regard, the Panel notes that the New Zealand Forest Accord requires signatories to consider the potential effects of undertaking forestry activities, and requires a variety of factors to be considered when siting forestry activities. This is to allow a balance to be achieved between protecting and enhancing existing indigenous bush and heritage areas, with the commercial and social benefits of plantation forestry. Taking into account the potential adverse amenity effects associated with excavation from forestry activities, the Panel considers that it would be appropriate for such works to be considered in a resource consent application if the forestry company is not a signatory to the New Zealand Forest Accord. 3. Therefore the Panel accepts in part submission 441/8 and 441/9 to the extent that it amends the performance standards of the excavation and fill Rules in Chapter 12, to exclude signatories to the New Zealand Forest Accord. 4. On balance, it is not considered appropriate to amend the definition to exclude these activities as this effectively makes the definition a Rule. However, to assist users of the Plan the Panel amends the definitions for Excavation, Fill and Vegetation Clearance to identify that some Rules of the Plan exclude activities from the performance standards Changes required as a result of Decision Amend the Performance Standards in Rules and to exclude forestry activities in those cases where the company is a signatory of the New Zealand Forest Accord. It is noted that amendments to Rules and are also discussed in Section 3.2 of this report. To avoid repetition, the revised text showing these changes have been included in in Sections and of this report. [Amend the Definitions of Excavation and Fill 3 and Vegetation Clearance 4 in Chapter 24: Definitions to add the following advice notes to clearly refer users of the Plan to those Rules that exclude some activities, as follows] Excavation. Note: Rules relating to Excavation and Fill (see Rules , , , 15A.10.1 and 15B.10.1) exclude some excavation and fill activities. 3 It is noted that a definition of Fill has been included in the District Plan as a consequence of Decisions to the Definitions Chapter of the Proposed District Plan, see section 4.11 of Decision Report of the Hearings Panel: Chapter 9 Definitions. 4 The definition of Vegetation Clearance is further discussed and amendments made by the Hearing Panel in Section 4.2 of this report. 31 August 2011 // Page 10

13 Fill Note: Rules relating to Excavation and Fill (see Rules , , , 15A.10.1 and 15B.10.1) exclude some excavation and fill activities. Vegetation Clearance Note: Rules relating to Vegetation Clearance (see Rules , , , 15A.10.2 and 15B.10.2) exclude some vegetation clearance activities Consequential Amendments Amend Rules 15A.10.1 and 15B.10.1 as per above. 3.2 [WOR SR2.2] Exclude farming from excavation and fill controls in the Rural Zone and amend Rural Excavation and Fill Rule thresholds to be the same as the Northland Regional Water and Soil Plan Several submissions oppose Rule and seek that the rule be amended or deleted. A summary of the reasons for submissions includes: 1. Removing Note 1. This refers to the potential requirement from Northland Regional Council for consent for excavation. (80/1) 2. Delete Rule as it duplicate Northland Regional Council s controls. Submitter 112/1 also opposes Section (in respect of Overlays). 3. Delete Rule or amend the Rule (e.g. Submission 99/11) to be consistent with the Regional Water and Soil Plan for Northland. Submitters seeking deletion of this Rule indicate that as earthworks are a regional council function. Submitters are concerned that the volumes and areas for excavation and fill are arbitrary and require resource consent for relatively low impact farming activities. Many of these submissions also do not agree with the thresholds for Overlay and non- Overlay areas. (submission points 207/116, 207/117, 207/118 and 207/119). 4. Other submitters sought specific amendment to the Rule. For example, to add a note to exclude building works authorised by a building consent, maintenance of farm tracks or formation of farm drains (Submission Points 174/20, 174/22) or maintenance of the Fonterra waste water pipeline. Submitter 431/12 specifically sought amendment to Rule (2), to require a minimum 50m setback for earthworks adjacent to the Fonterra wastewater pipeline and storage tanks and new assessment criteria that considers effects on the Fonterra wastewater pipeline and storage tanks. Evidence tabled by this submitter at the Hearing reduced the proposed setback from 50m to 30m Decision That submission: Submission Point Submitter Name Hearing Report Page Decision 80/1 Rope, Pam SR2 5-6 Be Rejected 112/1 Sumby, Yvonne SR2 5-6 Be Rejected 31 August 2011 // Page 11

14 Submission Point Submitter Name 207/116 Farmers of New Zealand Inc., Kaipara Citizens and Ratepayers Association Inc., Pouto Topu A Trust 207/117 Farmers of New Zealand Inc., Kaipara Citizens and Ratepayers Association Inc., Pouto Topu A Trust 207/118 Farmers of New Zealand Inc., Kaipara Citizens and Ratepayers Association Inc., Pouto Topu A Trust 207/119 Farmers of New Zealand Inc., Kaipara Citizens and Ratepayers Association Inc., Pouto Topu A Trust Hearing Report Page Decision SR2 5-6 Be Rejected SR2 5-6 Be Rejected SR2 5-6 Be Rejected SR2 5-6 Be Rejected 99/11 Larsen, Jonathan SR2 5-6 Be Accepted 431/12 Fonterra Co-operative Group Ltd SR2 6-7 Be Accepted in Part 174/20 Federated Farmers of New Zealand SR Be Accepted in Part FS466/74 Horticulture NZ SR Be Accepted in Part FS488/2 Bull, Peter SR Be Accepted in Part 174/22 Federated Farmers of New Zealand SR Be Accepted in Part FS488/2 Bull, Peter SR Be Accepted in Part Reasons for Decision 1. The Panel notes that Rule (Note 1) of the Plan identifies that the Regional Water and Soil Plan for Northland contains minimum standards for erosion and sediment control, and that an applicant needs to consider both Plans (District and Regional) before undertaking earthworks. The Panel considers that retaining this Note within Rule alerts applicants to also consider the Regional Plan when assessing whether resource consent is required for earthworks. 2. The Panel highlights that the earthworks rules in the Regional Water and Soil Plan for Northland control environmental effects on natural resources, particularly effects on water quality and erosion of soil. In contrast, the District Plan s excavation and fill rules (e.g. Rule ) manage environmental effects in respect of the District s resources, for example on amenity values, landscapes, ecological areas and infrastructure (e.g. roads). In particular, the Panel considers that these provisions are appropriate to respond to the District Plan Issue There are potential adverse effects on amenity and the natural environment from rural activities, including land disturbance and vegetation clearance. In this respect, the Panel does not accept that the excavation and fill provisions of the District Plan are a duplicate of the Regional Plan provisions. 3. However, the Panel does recognise that a balance needs to be reached in respect of managing the effects of excavation and fill activities of amenity and the natural environment and recognising that farming, forestry and other activities in the District support the social and economic wellbeing of the District and that there is a need to provide for ongoing opportunities for economic development (as identified in Issue of the District Wide Strategy (Chapter 2 of the Plan) and reflected in the Zone Chapters (e.g. in Issue ). The Panel acknowledges that the Rules for excavation and fill need to more closely align with the policy framework of the Plan in regards to providing for farming activities. Taking this into consideration, the Panel agrees that the excavation and fill rules in the Rural Zone, as Proposed, are too onerous. From review of the submissions and presentations at 31 August 2011 // Page 12

15 the Hearing, the Panel considers that the limits of the Northland Regional Council s Regional Water and Soil Plan appear to be generally accepted as an appropriate threshold for normal farming practices and as such, the Panel amends Rule (1) to reduce the excavation and fill volumes so that this Rule aligns with the volume set out in Regional Water and Soil Plan for Northland for general rural areas. 4. However, the Panel considers that it is appropriate that the standards for earthworks in more sensitive receiving environments, as defined by the Overlays (Kai Iwi Lakes in particular, but also the Coast and Harbour Overlays) be more onerous or restrictive. In particular, this is considered the most effective and efficient method to recognise and deliver on the objectives and policies for these environments (as set out in Chapter 4). In particular those objectives and associated policies relating to the protection of natural character and maintenance and enhancement of water quality of receiving environments, such as Objectives 4.4.1, 4.4.3, 4.4.5, For the reasons set out above, the Panel rejects submissions 112/1, 207/116, 207/117, 207/118, 207/119 and accepts submission 99/11. The Panel accepts in part submission 431/12 to the extent that the Panel has amended the performance standards for earthworks to be consistent with the performance limits of the Regional Council (in the Regional Plan), in the general Rural Zone. It is considered that consistency of these limits will provide sufficient flexibility for excavation and fill activities undertaken as part of normal farming practice. 6. The Panel notes that the amendments suggested by submitter 431/12 that request a setback for earthworks from the Fonterra Pipelines is not appropriate because the suggested amendments to Rule are onerous and would be difficult implement. 7. The Panel considers that the relief sought by submissions 174/20, and 174/22 to exclude maintenance of farm access tracks and farm drains will be provided for through the amendment to the Rule, increasing earthworks volumes consistent with the Northland Regional Plan (as noted above). On this basis the Panel accepts in part submissions 174/20, and 174/22 to the extent that such farming practices would be meet the revised performance standards for excavation and fill, provided it complies with the volume set out in Regional Water and Soil Plan for Northland Changes required to Sub Report 2 as a result of Decision Amend the Excavation and Fill Rule as set out in section Consequential amendments Amend Rules , , 15A.10.1 and 15B.10.1 as per above. 3.3 [PAN SR2.1] Interpretation of Excavation and Fill Rules Several submissions were received requesting amendments to the Excavation and Fill Rules (e.g and ) to improve their clarity. The following is a summary of relief sought: 1. Define terms for excavation and fill within 6 meters of a bank of any water body. The submitter states this may affect many of our buildings which have been in situ for up to 90 years. (164/5) 2. Amend Rules (b) and (b) to read: Any excavation or fill is less than 2m in depth or height over a continuous distance less than 50m. 31 August 2011 // Page 13

16 3. The submitter also seeks that guidance is provided in the plan on how to measure the 2m height/depth parameter in Rules (b) and (b). (174/23) 4. Amend Rule to include the words excavation and fill is a Permitted Activity if under Rule Heading if the rule is retained. (207/121, 207/120) 5. Amend the Rules in respect of assessing the excavation by hectare. For example, to amend the Rules to ready cubic metres, in any Hectare, in any 12 month period (60/1), to specify how volume per hectare will be judged. (207/155) and to specify that the volume of excavation or fill applies to: in any hectare. (Submissions 432/25 and 425/25) 6. Review Rule and explain what happens if ground cover is not achieved after 12 months (specifically Rule (f)). (207/156) Decision That submission: Submission Point Submitter Name Hearing Report Page Decision 164/5 Chases Gorge Camp Club SR2 5 Be Accepted in Part 174/23 Federated Farmers of New Zealand SR Be Accepted in Part FS488/2 Bull, Peter SR2 7 Be Accepted 207/120 Farmers of New Zealand Inc., Kaipara Citizens and Ratepayers Association Inc., Pouto Topu A Trust SR2 10 Be Accepted FS494/1 Hogan, Jonathen SR2 10 Be Accepted 207/121 Farmers of New Zealand Inc., Kaipara Citizens and Ratepayers Association Inc., Pouto Topu A Trust SR2 10 Be Accepted 60/1 Bone Design Ltd SR2 18 Be Accepted in Part 432/25 Te Roroa Be Accepted in Part 425/25 Te Uri o Hau Be Accepted in Part 207/155 Farmers of New Zealand Inc., Kaipara Citizens and Ratepayers Association Inc., Pouto Topu A Trust SR2 18 Be Accepted FS494/1 Hogan, Jonathen SR2 18 Be Accepted 207/156 Farmers of New Zealand Inc., Kaipara Citizens and Ratepayers Association Inc., Pouto Topu A Trust SR2 18 Be Rejected FS494/1 Hogan, Jonathen SR2 18 Be Rejected 31 August 2011 // Page 14

17 3.3.2 Reasons for Decision 1. The Panel notes that Excavation and Fill is defined in Chapter 24: Definitions 5. However, the Panel acknowledges that greater clarity will assist applicants to interpret how to measure the distance of excavation and fill from a water body. On this basis the Panel accepts in part submission 164/5 and amends Rules (1)(b), (2)(a) and (3)(a) as follows: is not within 6m of the top a of the bank of any water body. 2. The Panel acknowledges that greater clarity is required in relation to how the depth or height of excavation or fill is measured. For this reason, the Panel accepts in part submission 174/23 and includes the word continuous in Rules (2)(b) and (3)(b). 3. The Panel agrees that moving the wording Excavation and fill is a permitted activity if to above the heading Rural will make the rule clearer so that it applies to sub clauses 1-3. On this basis, the Panel accepts submissions 207/121 and 207/ The Panel recognises that there is an inconsistency within the Excavation and Fill rules between the Residential Zone and the Overlays with regard to excavation volumes within a certain time period. The Panel also notes that Rule is intended to apply to excavation and fill activities within a site, rather than within the Zone. Therefore, the Panel amends Rule to improve the consistency of this rule, accepting in part submissions 60/1, 432/25 and 425/ The Panel considers that the Excavation and Fill Rules (e.g. Rule (f)) provide an appropriate standard to manage the effects of excavation and fill, and notes that including a requirement for revegetation to be carried out is an important management tool to address potential effects, such as dust, silt and sedimentation, as well as visual and amenity effects. Therefore, the Panel considers that if the requirements of this Rule cannot be met, it would be appropriate for these potential environmental effects to be assessed by way of a resource consent application. For these reasons, the Panel considers that no changes are required to Rule (f) and rejects submission 207/ However, the Panel recognises that the key issue that these Rules address is to reduce earthwork scars and the amenity and natural environment effects of such scars. In this respect, the Panel considers that the wording of the rule could be improved to make it clearer that the rule is not intended to capture bare earth areas and accepts that in some instances (such as access tracks) that it may not be practicable to vegetate areas. Therefore, the Panel amends the Rules (e.g. Rule (1)(c)) to provide more flexibility to allow an applicant to either vegetate or stabilise an excavated area. For the reasons detailed above the Panel accepts in part submission 174/21 to the extent the amendments stated above are made to Rule (1)(c). The Panel considers that for consistency purposes Chapters 13, 14, 15A and 15B are amended. 7. The Panel agrees that the intent of defining the area which will apply to the Rule is appropriate but that the use of in any hectare makes the Rules overly complicated to assess. On this basis, the Panel concludes that the Rules be amended so that the performance standards are assessed within any site. 5 The definitions of excavation and fill have been amended by submissions. 31 August 2011 // Page 15

18 3.3.3 Changes required as a result of Decision Amend the Excavation and Fill Rules and (Excavation and Fill) as set out in section 3.4.3)) Consequential Amendments Amend Rules , 15A.10.1 and 15B.10.1 as per above. 3.4 [PAN SR2.2] Performance Standards for the Excavation and Fill Rules Several submissions were received opposing the volumes or areas permitted in the standards of the Excavation and Fill Rules. Requested amendments included the following (demonstrating both submissions seeking increases and decreases to the permitted volumes and areas): 1. Apply Rules (1) (a-d) to the Overlays. The earthworks rules are more onerous than the Rural Zone without an overlay. (22/1) 2. Delete Rules sub parts (1), (2), (3). (10/3, 24/2) 3. Thresholds in the Harbour and West Coast Overlays are too stringent and not practical for farming activities or driveways. (79/1) 4. Amend the volume of excavation and fill so that it is less than 1,000m 3 to make the Rule consistent with the East Coast, West Coast and Harbour Overlays. (78/3) 5. Clarify earthworks provisions as to the volume of earthworks permitted. (67/1) 6. Amend Rule to reduce the excavation and fill threshold. The submitter states that the excavation and fill allowance per year is too low and restricts business activities. (396/9) 7. Amend and 15A10.1 (2) a) to 300 m 3 in any 12 month period, and amend excavation and fill setback from a water body to 20 metres applying to Overlays. (135/60, 135/85 and 135/99) 8. Amend the excavation volumes in Rule to 1000m 3 in any hectare in any 12 month period in all zones. (95/16) 9. Amend Excavation and Fill Rule (1) a) in all zones to refer to mapped areas of instability or flood hazards to address sedimentation issues in the District. It is noted that the submitter attached a plan to their submission. (74/3) 10. Amend Rule (a) to areas identified as subject to instability or flood hazard, and to insert the words where practical in (c). The submitter notes that revegetation is impractical for the purpose for an access track. (174/21) 11. Submissions 432/25 and 425/25 request amendments to Rules , and to include a restriction on excavation and fill being undertaken within 20m of the CMA for Kai Iwi Lakes and Waterways 6 Overlay. This performance standard should be included in all zones. The submitter also states that rules should take into consideration tangata whenua cultural values around adverse effects to the whenua and protection of such earthworks close to Wai Maori. 6 Renamed by the Panel as the Valued Natural Environments of Mangawhai 31 August 2011 // Page 16

19 12. Another submission also sought to amend (a) to include a further restriction within all Overlays so that the amount of earthworks are restricted where they are within 20m of the Coastal Marine Area. (95/16) In addition to the volumes and areas, a number of submissions seek to exclude specific activities from the Excavation and Fill rules. The following is a summary of the variety of relief sought: 1. Exclude trenching activities in association with the installation of network utilities from the Excavation and Fill standards in the Chapters 12, 13, 14 and 15A. (114/19, 114/20, 114/21, 114/22, 114/23) 2. Exclude network utilities; clarify earthworks for network utility maintenance purposes increase the threshold for the depth of excavation for network utilities in some zones (e.g. 1.5m in residential and business areas); amend the definition of excavation to exclude network utilities; and provide for earthworks associated with maintenance and minor upgrading of the National Grid as a permitted activity. (434/24) Several submissions seek that new rules be included in the Plan for certain activities in relation to Excavation and Fill. The following is a summary of the relief sought: 3. Add a new rule to allow the removal of underground petroleum storage systems and associated soil as a permitted activity plan in Chapter 12, 13, 14, 15A and 15B, or amend the definition excavation to exclude the removal of underground petroleum storage systems. The submitter also made submission points in support of the current provisions in chapter 12, 13 and 14 to allow activities on contaminated land to be assessed as a permitted activity where effects are no more than minor. (104/16, 104/17, 104/18, 104/19, 104/11, 104/2, 104/3, 104/4) 4. Rewrite Rule to recognise orchard operations and include a reduction and review of the assessment criteria. Orchardists do not vegetate after planting as they clear the ground (submission 147/6) Decision That submission: Submission Point Submitter Name Hearing Report Page Decision 22/1 Cullen, Shane Noel SR2 7-8 Be Accepted in Part FS465/61 Department of Conservation (Northland SR2 7-8 Be Accepted in Part Conservancy) 10/3 Poutu Investments Ltd SR2 7-8 Be Rejected 79/1 Talbot, Lindsay Dalton SR2 7-8 Be Rejected 24/2 Rowe, Graeme and Pam SR2 7-8 Be Rejected 67/1 Hendrickx, Paul SR2 7-8 Be Rejected 78/3 Duck Nominees Ltd SR2 7-8 Be Rejected 396/9 Flett, Alistair Murray SR2 20 Be Rejected 135/60 Department of Conservation (Northland Conservancy) 135/85 Department of Conservation (Northland Conservancy) 135/99 Department of Conservation (Northland Conservancy) SR2 6-7 Be Rejected SR2 21 Be Rejected SR2 21 Be Rejected 31 August 2011 // Page 17

20 Submission Point Submitter Name Hearing Report Page Decision 95/16 Royal Forest and Bird Protection Society of NZ Inc. SR2 6-7 Be Rejected FS464/3 Coles, Peter & Rose SR2 6-7 Be Accepted FS490/23 Federated Farmers of New Zealand SR2 6-7 Be Accepted FS471/2 Newlove, Thomas and Barbara SR2 6-7 Be Accepted FS466/72 Horticulture NZ SR2 6-7 Be Accepted FS511/23 Farmers of New Zealand Inc., Kaipara Citizens and Ratepayers Association Inc., Pouto Topu A Trust SR2 6-7 Be Accepted 74/3 Makey, Leane SR2 4 Be Accepted in Part FS488/2 Bull, P SR Be Accepted in Part 432/25 Te Roroa SR2 4-5 Be Accepted in Part 425/25 Te Uri o Hau SR2 4-5 Be Accepted in Part 114/19 Telecom NZ Ltd, SR2 9 Be Accepted in Part FS498/173 Northpower Limited SR2 9 Be Accepted in Part 114/20 Telecom NZ Ltd, SR2 19 Be Accepted in Part 114/21 Telecom NZ Ltd, SR2 20 Be Accepted in Part FS498/174 Northpower Limited SR2 20 Be Accepted in Part 114/22 Telecom NZ Ltd, SR2 21 Be Accepted in Part 114/23 Telecom NZ Ltd, SR2 22 Be Accepted in Part 434/24 Transpower New Zealand Limited Be Accepted FS498/135 Northpower Ltd Be Accepted FS487/15 Vector Gas Limited Be Accepted 104/16 The Oil Companies SR2 12 Be Accepted 104/17 The Oil Companies SR2 12 Be Accepted 104/18 The Oil Companies SR2 12 Be Accepted 104/19 The Oil Companies SR2 21 Be Accepted 104/20 The Oil Companies SR2 22 Be Accepted 104/11 The Oil Companies 8 20 Be Accepted 104/2 The Oil Companies 8 21 Be Accepted 104/3 The Oil Companies 8 21 Be Accepted 104/4 The Oil Companies 8 21 Be Accepted 104/9 The Oil Companies Not specifically referred to in the Hearing Report 104/15 The Oil Companies Not specifically referred to in the Hearing Report Be Accepted Be Accepted 31 August 2011 // Page 18

21 Submission Point Submitter Name Hearing Report Page Decision 147/6 Price, Ewan Ronald & Jennifer SR Be Accepted in Part FS466/75 Horticulture NZ SR2 11 Be Accepted in Part 174/21 Federated Farmers of New Zealand SR Be Rejected Reasons for Decision 1. The Panel notes that exclusions in Rule (1) were intended to also apply to the Overlays. The Panel considers that it would improve the interpretation of the Rules if they were amended to make this clearer. On this basis, the Panel accepts in part submission 22/1 to the extent that it amends the Excavation and Fill Rules (e.g ) to include a separate section for all Overlays to make it clear what standards apply to these areas. 2. The Panel notes that the Regional Water and Soil Plan for Northland contains rules for earthworks within the Riparian Management Zone, (reduced limits in proximity to water) and considers that this amendment is appropriate for the reasons set out in section above. 3. The Panel notes a typographical error in Rule The Panel considers that the excavation and fill volumes in are appropriate and believes if Council was to increase the volume of excavation and fill allowed as a permitted activity it would not be consistent with the policy framework of the Business Zone Chapter. The Panel notes that it would not be an effective or efficient method to achieve the objectives and policies and would therefore not achieve the Outcomes of the Plan, in particular Outcome , which states: A range of new business activities will be established across the District while avoiding, remedying or mitigating any adverse effects on the environment, particularly harbours, lakes and coastal environments. For the reasons set out above the Panel considers that the excavation and fill volumes for the Overlays are appropriate, and is satisfied that the thresholds contained in Rule will ensure that development is carried out in accordance with the policy framework of the Plan. Accordingly the Panel rejects submissions 10/3, 24/2, 78/3, 396/9, 135/60, 135/85 and 135/99. Excavation Rules Overlays Thresholds 5. The Panel acknowledges that Council identified in the Section 32 Report that the effects of earthworks are relevant to a number of resource issues in the District, including vegetation cover (ecological values, landscape and amenity values and the physical resource), heritage and cultural values, amenity values and natural hazards, infrastructure and roading. The Panel notes that Council concluded in that report that an appropriate balance between normal rural farming practices and protecting the sensitivity of environments (Overlays) needs to be met. The Panel considers that to achieve this balance, it is appropriate for Council to have more restrictive performance standards for excavation and fill in Overlays, as compared with other areas of the District 7. This matter is also considered in Section 3.2 of this report. For the reasons set out in Section 3.2, the Panel considers that the excavation and fill volumes for the Overlays are appropriate, and is satisfied that the thresholds contained in the Plan s Rules will ensure that development is carried out in accordance with the policy framework of the Plan. The Panel rejects submissions 79/1 and 95/16. 7 It is noted, however, that as a result of Panel decisions from submissions to the Plan that the extent of geographic area of Overlays has been reduced (see the Decision Report for Chapter 4: Overlays). 31 August 2011 // Page 19