SECTIONAL DISTRICT PLAN REVIEW Plan Change 15 RURAL NOISE PROVISIONS
for PALMERSTON NORTH CITY COUNCIL
File No. N2360 Version Final V1
9 September 2014
ACOUSAFE CONSULTING & ENGINEERING LTD
Nigel Lloyd Director of Acoustic Services
E-mail: [email protected]
P.O. BOX 14-315 WELLINGTON 6241, NEW ZEALAND. TELEPHONE 64-4-388 3407 ACOUSAFE CONSULTING & ENGINEERING LTD 412 1830 CONTENTS 1 Introduction ...... 1 2 Outline of Tasks ...... 1 2.1 General District Plan Provisions ...... 1 2.2 Wind Farm Noise Brief ...... 2 2.3 Reverse Sensitivity Noise ...... 2 3 General District Plan Noise Provisions ...... 3 3.1 Operative District Plan – Noise Rules ...... 3 3.2 Section 6 Exclusions ...... 4 3.3 Updating Noise Rule R 9.12.1 ...... 5 3.4 Recommended Noise Rules for the Rural Zone ...... 5 3.5 Other Zone Interfaces ...... 6 4 Wind Farm Noise ...... 7 4.1 Supporting Documents ...... 7 4.2 National Policy Statement and Implementation Guide ...... 7 4.3 Turitea Wind Farm Decision ...... 7 4.4 Te Rere Hau Wind Farm Declaration ...... 8 4.5 GEM Technical Workshop Report 2008...... 9 4.6 Operative District Plan Provisions - Activity Status for Wind Farms .... 9 4.7 Section 6 Exclusions for Wind Farm Noise ...... 10 4.8 Definition of Wind Farm ...... 10 4.9 NZS6808:2008 ...... 11 4.10 NZS6808 High Amenity Areas ...... 12 4.11 Porirua City Council Plan Change ...... 12 4.12 Proposed Wind Farm Rules...... 13 4.13 Wind Farm Discretionary Activity - Assessment Criteria ...... 15 4.14 Wind Farm Noise - Reverse Sensitivity ...... 15 5 Quarry Noise ...... 20 5.1 Supporting Documents ...... 20 5.2 Existing District Plan Activity Status ...... 21 5.3 Existing District Plan Noise Rules ...... 22 5.4 Existing Quarries ...... 22 6 State Highway Noise ...... 24 7 Rail Noise ...... 26 8 General Reverse Sensitivity Considerations ...... 27 9 Conclusions ...... 28
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1 Introduction This is a Sectional District Plan Change Review of the Palmerston North City Rural Zone, including: General noise controls, Wind farms Quarries, State Highway noise Rail noise, and Controls on reverse sensitivity issues such as nearby noise sensitive development and subdivision, These are all significant issues that need to be addressed in the Rural Zone. In 2012 PNCC undertook a successful boundary change process with Manawatu District Council. The newly incorporated land is predominantly rural and is likely to be zoned Rural under the Palmerston North City District Plan. Some of this land is proposed to be rezoned Industrial to provide for the future extension of the North East Industrial Zone. This review considers domestic and commercial scale wind generation activities. Domestic machines are significantly smaller than those found in commercial wind farms and would be utilised in small numbers. Domestic wind turbines would normally be required to meet the District Plan noise limits. Commercial machines may be 100 metres tall or more and generate significantly higher noise levels. To date wind farms in the Manawatu and Tararua areas have been developed as large-scale projects with varying degrees of acceptance from rural neighbours. There have been high levels of objection to wind farm noise at certain locations, as evidenced by the number of submissions received opposing wind farm proposals, in the past decade. Noise issues relating to quarries, State Highways and rail corridors are considered in this review with a particular emphasis on the protection against reverse sensitivity. Reference to the District Plan in this review means the Palmerston North City District Plan, unless it states otherwise. 2 Outline of Tasks The brief for this Noise Report is as follows: 2.1 General District Plan Provisions
a) Incorporate any changes to NZ standards that impact on the Rural Zone noise provisions: (i) changes to existing NZ Standards that are currently referenced in the Operative District Plan, (ii) incorporation of relevant new NZ Standards by reference, and
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(iii) update of the Rural Zone Noise provisions as a consequence of changes in NZ Standards, such as NZS 6801 and 6802. b) Identify any other activities in the Rural Zone that may require specific noise provisions and recommend provisions accordingly while being aware of the Boundary Change Area, and
c) Draft new District Plan noise provisions to fit with the structure and approach of the operative District Plan, as far as practicable. Give consideration to and provide advice on any transitional issues. 2.2 Wind Farm Noise Brief Regarding wind farm noise, an assessment will be made of the existing District Plan policies and objectives and rules to identify where these need to be changed and what additional measures are required. The aim is to prepare a noise section for the draft plan change. The technical advice sought by Council is as follows:
a) Review the current Manawatu District and Palmerston North City Rural Zone noise provisions, in particular Rule 9.12.1 of the Palmerston North City District Plan.
b) Specific recommendations for domestic and national scale wind' farms taking into account the relevant NZ Standards. Note: We will need to discuss the broad approach to managing wind farms in the District Plan but still support the conclusions of 2008 technical workshop - GEM report.
c) Specific recommendations to manage reverse sensitivity noise effects on existing I consented wind farms.
d) Consider whether there are any 'high amenity areas' as envisaged by NZS 6808:2010 (cl 5.3) which ought to be considered for identification within the District Plan. 2.3 Reverse Sensitivity Noise
A section of the original brief referred to Quarry noise and “other existing activities” with reverse sensitivity noise effects. In a recent Sectional Plan Change hearing for the Whakarongo Urban Growth Area (“PC6”), submissions were received from New Zealand Transport Agency (“NZTA”) and KiwiRail who sought protection from reverse sensitivity impacts from new dwellings close to the State Highway system and to the railway line respectively.
Each of quarries, the State Highway roading system and the rail system are important infrastructural elements that need to be protected from inappropriate development by noise sensitive activities that would result in possible future restrictions occurring. Inappropriate development can unwittingly expose people to noise that exceeds levels that are considered suitable to protect residential health and amenity.
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3 General District Plan Noise Provisions 3.1 Operative District Plan – Noise Rules Section 6: General. Rule 6.2.6.2(e) of the District Plan specifically excludes wind farms from the District Plan’s Noise Control Rules and states: (e) Sounds generated by wind farm activities in the Rural Zone shall be assessed, predicted, measured and controlled by reference to New Zealand Standard NZS6808:1998 Acoustics – The Assessment and Measurement of Sound From Wind Turbine Generators. The Noise Rule for the Rural Zone is found in Rule R9.12.1: (a) Sound emissions from any activity in the Rural Zone when measured at or within the boundary of any land zoned for residential purposes or at or within any land in the Rural Zone (other than land from which the noise is emitted or a road) shall not exceed the following:
7:00 am to 10:00 pm 50dBA L10 10:00 pm to 7:00 am 40dBA L10 and 70dBA Lmax Explanation Rural areas are in essence working environment within which there are pockets of residential activity. The rules are intended to provide for normal agricultural activities while controlling noise from a range of other activities which also exist in the rural area, eg home occupations. This control does not control rural activities in rural areas. Reference should be made to Section 6, Noise, for those rural activities that are excluded from the above controls and for further general information on noise. This Rule provides a moderately strict noise control regime which is approximately 5dB stricter than the least strict noise limits recommended by NZS6802 at the residential interface. At the time of writing the first generation District Plan, there was a conscious decision to apply the noise limits at rural site boundaries rather than at the notional boundaries of dwellings on rural sites. The notional boundary is defined as a line 20 metres from the side of a rural dwelling or the legal boundary, where this is closer to the dwelling. The use of the notional boundary technique enables a Council to apply the residential protection criterion at the appropriate location. However, the use of notional boundary concept is poor as a future planning tool because it does not protect land in a situation where an owner has the right to build a dwelling but where this dwelling has not yet been constructed. If a dwelling is constructed closer to a “noise maker” in the future, then this will cause stricter noise limits to suddenly be imposed.
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By applying the noise limits at the site boundary this protects the rural land itself from external noise (which is perceived as relevant and appropriate to the rural land in the Palmerston North District) and allows a further assessment to be made of a future use of land, if the need is to exceed District Plan limits, at that location. By contrast, the Manawatu District Plan Rural Zone noise limits for permitted and controlled activities (3.3.1 (K) & (L) are the least stringent recommended by NZS6802, except for the night-time Lmax which is 10dB stricter. Rural Zone noise limits apply at the notional boundary of dwellings (as defined below): K) Noise Received in Residential Zones or Village Zones All activities shall be so conducted as to ensure that noise from sites in the Rural zone shall not exceed the following noise limits, at any point within the boundary of any site zoned Residential or Village.
7.00am to 10.00pm 55 dBA L10
10.00pm to 7.00am the following day 45 dBA L10 and 65 dBA Lmax L) Noise Received at Rural Dwellings All activities shall be conducted so as to ensure that noise from the site shall not exceed the following noise limits, at any point within the notional boundary of any rural dwelling not on the subject site:
6.00am to 10.00pm 55 dBA L10
10.00pm to 6.00am the following day 45 dBA L10 and 65 dBA Lmax Note: the notional boundary is defined in NZS 6802:1991 Assessment of Environmental Sound as a line 20 metres from the facade of any rural dwelling, or the legal boundary where this is closer to the dwelling. The Operative Palmerston North District Plan noise limits are 5dB stricter, day and night, with the transition times being the same. The exception to this is the night-time Lmax limit which is actually relaxed by 5dB with the Operative Palmerston North District Plan. 3.2 Section 6 Exclusions The Operative District Plan identifies a number of rural activities in Section 6.2 Noise, R 6.2.6.2(d) that are exempt from the Noise Control Rules as follows: (d) Rural activities listed in R 9.6.1 and R 9.6.2 in the Rural Zone, and grazing and cropping activities, including horticulture, in the Flood Protection Zone. The activities listed in R 9.6.1 are permitted activities which include farming (excluding intensive farming), horticulture, soil conservation and river control works supervised by Council(s) and teaching and research associated with farming undertaken at Massey University. R 9.6.2 concentrates on production forestry.
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R 6.2.6.2(d) also exempts wind farms from the District Plan Noise Control Rules and this is discussed below. 3.3 Updating Noise Rule R 9.12.1 It is proposed to apply the noise limits in accordance with the latest version of NZS6802:2008 Acoustics Environmental Noise including changing to LAeq rather than the existing L10 standard. Methods for monitoring and assessing noise are set out in Section 6.2 Noise of the District Plan, and these were reviewed as part of the Inner Business Zone Plan Change PC1, to be in accordance with the 2008 versions of NZS6801 and NZS6802. These allow new rules to be written as LAeq. The first generation District Plan noise descriptors are currently expressed as L10 and Lmax (except for aircraft noise at the airport). L10 is a statistical method of measuring noise being the level that is equalled or exceeded for 10% of the time. This review proposes that LAeq be used to protect Rural Zone site boundaries and at the interface with Residential Zones. LAeq is an energy average of the sound levels. For road traffic and noise of a similar characteristic L10 is generally 2-4dB greater than LAeq for the same period. Lmax is to be retained and this is the maximum sound level in any measurement period. 3.4 Recommended Noise Rules for the Rural Zone The noise rules in the Rural Zone must be read in conjunction with the Section 6 exemptions for certain activities that are permitted in the Rural Zone. These activities are controlled using the Section 16 RMA duties, to not exceed reasonable noise levels and by adopting the best practicable option. With respect to Rule R 9.12.1 the following noise rule is recommended: (b) Sound emissions from any activity in the Rural Zone when measured at any point within any land zoned for residential purposes or any point within any site in the Rural Zone (other than site from which the noise is emitted or a road) shall not exceed the following:
7:00am - 7:00pm 50dB LAeq(15mins) 7.00pm to 10.00pm 45dB LAeq(15mins) 10:00pm - 7:00am 40dB LAeq(15mins) Night-time Lmax 10:00pm - 7:00am 70dBA Lmax Explanation Rural areas are in essence working environment within which there are pockets of residential activity. The rules are intended to provide for normal agricultural activities while controlling noise from a range of other activities which also exist in the rural area, e.g. home occupations. This control does not apply to specific rural activities in rural areas which should be managed by applying the
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section 16 requirements of the RMA in the circumstances that they arise. Reference should be made to Section 6, Noise, for those rural activities that are excluded from the above controls and for further general information on noise. The recommended noise rule contains a shoulder noise limit for the evening period. This is a time when residential amenity is particularly important and a transition between the daytime limit and night-time is considered appropriate. The shoulder limit is introduced by NZS6802. The noise rules are considered to be appropriate for Palmerston North rural area. Experience of the reaction of the community to wind farm noise indicates that it is not receptive to “introduced noise” that is perceived to be incompatible with the rural environment. The noise rules are not intended to control activities which are permitted in the Rural Zone (as described above) and which are exempted from the noise rule by reference to Section 6 of the Plan. It is other activities that need to comply with the noise rule. The recommended noise limits are 5dB stricter than the maximum guideline limits found in NZS6802:2008 and this is appropriate given the general ambient sound levels in rural areas1 and our experience of the expectation of the community particularly in respect of the Te Rere Hau compliance process and Turitea Wind Farm consent process2. As discussed above, there are logical planning reasons for applying the rural noise limits at any point within the site boundary, rather than the notional boundary. This provides certainty with respect to future development, both for the “noise maker”, and also by ensuring the noise contamination is contained within the “noise maker’s” site, at least until the impacts on potential development of noise sensitive activities on neighbouring sites can be gauged. In our experience this is even more important in Palmerston North given the propensity for (comparatively) higher density development and for rural dwellers to have high expectations for their amenity values. 3.5 Other Zone Interfaces Besides residential areas, the Rural Zone also borders various Recreational Areas, Conservation and Amenity Zone, Industrial Zone, Airport Zone and North East Industrial Zone. It is not proposed to provide for protection at these interfaces given the locations and the lesser need for noise control required at these boundaries.
1 http://www.pncc.govt.nz/content/7538/StateoftheEnvironmentReportSection3Amenity.pdf 2 http://www.mfe.govt.nz/rma/call-in-turitea/final-report/
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4 Wind Farm Noise 4.1 Supporting Documents
The following have been identified as the key supporting documents for the Wind Farm Noise Brief:
a) National Policy Statement (NPS) Regulations and Implementation Guidance. b) Horizon's One Plan. c) Decision of the Board of Inquiry on the 'Called-In' Application by MRP for Resource Consent to build the Turitea Windfarm d) Declaration of the Environment Court on Te Rere Hau Noise e) Good Earth Matters (GEM) Technical Workshop Report ‘Managing Windfarms’ March 2009. f) Rural Residential Land Use Strategy 2012 4.2 National Policy Statement and Implementation Guide These documents have been identified as key supporting documents for the Plan Change and the review work. The National Policy Statement on Renewable Electricity Generation Activities (NPSREG) came into effect in May 2011 and established certain obligations for Councils in relation to renewable generation activities that Territorial Authorities need to give effect to and have regard to in developing their plans and strategies. The NPSREG Implementation Guide includes examples of Objectives, Policies and Methods by which Council can demonstrate an appropriate policy response. Of particular relevance to this review is Policy D of the Guidance document which discusses the need to manage activities to avoid reverse sensitivity issues. Mention is also made in Method D3.6 that recommends the use of Industry Codes such as NZS6808:2010 Acoustics – Wind farm noise. The NPSREG Implementation Guide also recommends that Council identifies areas of high amenity that are in special need of protection. 4.3 Turitea Wind Farm Decision The consent application for Turitea Wind Farm, lodged by Mighty River Power (MRP) in August 2008, was ‘called in’ by the Minister for the Environment in December 2008 and heard before an independent Board of Inquiry. The complexities associated with wind farm development were clearly enunciated during the hearing, leading MRP to request the hearing be adjourned3 to enable it to re-design the wind farm and resulting in a reduction in the number of turbines from 127 to 104. In September 2011, the Board of Inquiry released its final decision with only 60 turbines consented (33 turbines at the northern end and 27 turbines at the southern end). Twenty-nine turbines are on Council-owned land and 31 on private landholdings. At the Turitea Wind farm hearing, agreement was reached between a number of noise experts (but not all) , that the assessment approach should be undertaken as if the
3 Hearing adjournment took place early 2010
P.O. BOX 14-315 WELLINGTON 3, NEW ZEALAND. TELEPHONE 64-4-388 3407. FAX 64-4-388 3507 ACOUSAFE CONSULTING & ENGINEERING LTD 420 1838 District Plan Review Industrial Zone 8 Noise Provisions Status – Final V1 neighbours to the wind farm were in high amenity areas. While NZS6808 is unclear on the test for when such areas should exist, significant weight is placed on whether the District Plan promotes a higher degree of protection of amenity related to the sound amenity, of a certain area. The conditions of consent for the Turitea Windfarm, relating to noise, are included in this review as Appendix A. Condition 18 includes the noise limits that apply in NZS6808 for High Amenity Areas. This is the stricter 35dBA
LA90(10min) baseline limit that applies at night (10pm to 7am) when the nearest wind farm wind speed is less than 6m/s. There are a number of conditions that go beyond the NZS6808 requirements. Condition 21 specifically required the wind farm to be designed with wind turbines that minimise noise emissions and that do not generate special audible characteristics. This is an important difference from only using NZS6808 recommendations, which could impact on the wind farm designer’s choice of turbine. The Board also considered that the matters intended for a Noise Management Plan (NMP) were of such importance that they should be promoted and included as conditions of consent. These included a requirement for background sound levels to be monitored, for the design to be transparent with regards to noise, and for procedures to be established that addressed turbine malfunctions that could result in increased noise levels. The conditions required that an acoustics emissions report be prepared for the turbines, and for a noise prediction report to be given to Council demonstrating that compliance will be achieved with the conditions. Conditions also set out the procedures for compliance monitoring including assessment of cumulative effects with Te Rere Hau Windfarm and what action must be taken in the event of non-compliance being detected, including derating or stopping the offending turbines. 4.4 Te Rere Hau Wind Farm Declaration In June 2012, Council sought a declaration from the Environment Court as to whether the Te Rere Hau Wind Farm, comprised of 65 installed turbines (out of 97 for which consent has been granted) has been operated in accordance with its resource consent and the conditions of consent imposed upon it. A significant issue for Council and for residents nearby, has been that the adverse noise effects from the operation of the wind farm are greater than those predicted and described by the Assessment of Environmental Effects (AEE) that accompanied the wind farm consent application. Noise monitoring, undertaken in accordance with the specified data collection method, showed that the actual noise was significantly different from the noise predictions within the AEE, a finding disputed by the owners, NZ Windfarms Ltd. The Environment Court found that the operation of the wind farm was generating noise effects that were greater than those described in the AEE and directed: That the acoustic information supplied in the AEE by the Respondent and the evidence of the Respondent was inaccurate to such an extent that Palmerston North City Council may rely on
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s128(1)(c) RMA to conduct a review of the noise consent conditions applicable to the Te Rere Hau wind farm The review process is still in motion. The matter was referred back to the High Court in February 2013 and the matter remains under litigation in the Court of Appeal. 4.5 GEM Technical Workshop Report 2008 Acousafe was an expert advisor and participant in a Technical Workshop convened by Council in 2008 for the following purpose: “To identify and discuss the alternative planning methods for managing wind-farms within Palmerston North City and outline the pros and cons of the various methods.” It was agreed at the Workshop that the District Plan’s provisions would need to be changed, if for no other reason than the fact that the District Plan is perceived as not providing sufficient certainty (or protection) to residents. It was agreed, after all of the options had been explored, that the preferred approach is to maintain a discretionary activity status for wind farms but provide specific wind farm policy provisions in the District Plan. 4.6 Operative District Plan Provisions - Activity Status for Wind Farms Wind farms are currently Discretionary Activities (Unrestricted) under R9.9.2 of the District Plan. Rule R9.9.2 sets out the assessment criteria for sawmills, rural industries and wind farms, as follows: In determining whether to grant consent and what conditions if any to impose, Council will in addition to the City View objectives in section 2 and the Rural Zone objectives and policies, assess any application in terms of the following further policies: (a) To avoid, remedy or mitigate adverse visual impacts of any proposed building, structure or storage areas for products and waste, on the surrounding rural environment, and on the landscape values of adjoining areas. (b) To avoid, remedy or mitigate the effects of noise and other environmental disturbance, on the amenity of the surrounding area. (c) To avoid, remedy or mitigate the risk of contamination posed by hazardous substances. (d) To avoid, remedy or mitigate the adverse effects on the safe and efficient operation of the roading network from the traffic movements generated by activities. (e) To ensure the provision of adequate on-site parking, loading, manoeuvring and access space to avoid this taking place on roads.
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Explanation All industrial activities in the rural area, because of the lack of services, have the potential to create adverse effects on the rural environment. Their usually, “one-off” location also increases their visual impact as does outdoor storage of goods and waste. A Discretionary Activity consent process gives Council the opportunity to assess any adverse effects and to ensure that those effects are avoided, remedied or mitigated. In the case of wind farms, the largely unknown effects of the activity mean that it is essential that it be examined on a case by case basis. [Underlining Added] In respect of these activities, it should be noted that horizons.mw may have separate consent requirements. 4.7 Section 6 Exclusions for Wind Farm Noise Section 6.2 Noise, R6.2.6.2(e) excludes wind farm sounds from being controlled by District Plan Rules. It is recommended that this be deleted. The Turitea Wind Farm consent hearing and subsequent decision demonstrated that NZS6808 does not provide a comprehensive control mechanism and the implication of R 6.2.6.2(e) is that wind farms could be permitted activities, if they complied with NZS6808. It is recommended that Assessment Criteria be included in the Plan for new wind farms as a discretionary activity, of which part of evaluation of the consent application will be assessment in accordance with NZS6808 (and of construction noise in accordance with NZS6803).
All of the wind farms in the Palmerston North District have their own noise conditions and for that reason R 6.2.6.2(e) becomes irrelevant when read with the rest of the provisions of the District Plan.
Domestic wind turbines should (according to NZS6808) meet the District Plan requirements. 4.8 Definition of Wind Farm The District Plan currently defines a wind farm as follows: means land, buildings or structures used to generate electricity from the wind. Because there is a stated intention to differentiate between domestic and commercial wind farms it is proposed that this definition be divided into two parts as follows4: Wind Farm: means turbines or other devices, other than domestic wind turbines defined elsewhere, used to derive energy from the wind,
4 http://www.qualityplanning.org.nz/index.php/component/content/article/10-useful-links/521- examples-of-definition-styles
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including pylons or towers that support turbines or other devices, ancillary buildings and the site on which they are located. Domestic wind turbines are discussed in NZS6808 and it is recommended they be defined in the District Plan, as follows: Domestic Wind Turbine: Means a wind turbine or other device used to derive energy from the wind with a blade length of no greater than 9m and a nacelle height of no greater than 20 metres from the ground. For other wind generating devices where a swept blade area is not applicable, then the output from the device shall be rated at no greater than 15kW. Only one wind generating turbine/device shall be installed on any site. 4.9 NZS6808:2008 The 1998 version of NZS6808 has now been superseded by NZS6808:2010 Acoustics – Wind farm noise. This is the version of the Standard that will now be referred to in this review. The noise assessment methodology in NZS6808 is aimed at dwellings where predicted wind farm noise levels will exceed 35dB LA90 and relies on the wind farm wind speeds. The techniques differ from other noise assessments because they are undertaken during various wind conditions including times when general noise monitoring would be abandoned due to high winds. This is ordinarily when local wind speeds exceed 3-5m/s. If the rural area is treated as one of High Amenity then the base noise limit is reduced from 40dBA to 35dBA and a correlation is made between the wind farm wind speeds and local background sound levels. NZS6808 recommends that the 35dBA high amenity baseline limit only applies when wind farm wind speeds are less than 6m/s although this can be different if the local conditions dictate. The background sound levels are statistically analysed and the best fit regression curve is used to determine the background sound level plus 5dB. The noise limit is either:
35dB LA90, up to a certain wind speed and if High Amenity is identified, or 40dB LA90, or the background sound level plus 5dB, whichever is the higher. Wind farms are normally discretionary activities in District Plans both because of the complexity of the assessment and because of the discretions allowed by the Standard. Where dwellings are outside the 35dB LA90 noise contour then there is greater certainty that they will comply with the noise limits (except potentially where the high amenity criterion applies). It is also recommended that, given the quiet night-time noise limits that are set out in the Plan, that the District Plan identifies the parts of the Rural
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Environment (having a rural residential land use typology) as being a High Amenity Area, with respect to wind farm noise. It is proposed to adopt the assessment procedures and recommended guideline noise limits as set out in NZS6808. 4.10 NZS6808 High Amenity Areas Section 5.3 of NZS6808 recognises that there may be special circumstances at some noise sensitive locations. An example is where evening and night- time noise limits in the plan for general sound sources are more stringent than 40dBA LAeq(15 min) or 40dBA L10. A high amenity noise limit should not be applied in any location where background sound levels are already affected by other specific sources, such as road traffic sound. The night-time noise limits for general activities in the District Plan have been 40dBA L10 applied at the rural or residential site boundary and these are proposed as 40dBA LAeq(15 mins) in the review. These moderately strict limits provide a basis for a High Amenity Area to be established. Examination of the District Plan Maps indicates that the High Amenity Area is likely to mostly coincide with the Rural Residential Areas/Subdivision Overlay in the Plan, and this is where rural subdivision and rural residential amenity expectations are expected to be highest. Consequently then, it is recommended that the rural residential area be afforded a High Amenity Area categorisation in terms of NZS6808. This only relates to wind farm noise and is compatible with the Board of Inquiry’s decision on the Turitea Windfarm. 4.11 Porirua City Council Plan Change The Porirua City Council’s Plan Change 7 applied to wind farms. The Council’s decision was appealed to the Environment Court. The Court upheld the provisions of the plan change and this decision is now beyond further challenge5. Peter Matich, a senior policy analyst with PCC summarised the key points of the Plan Change in an email to PNCC, as follows: Wind farms are a discretionary activity within the Rural Zone, provided that wind turbines are located at least 700m from the boundary of a site that is not part of the wind farm, and at least 700m from a zone boundary. Where these standards are not met, the wind farm is a non- complying activity. In addition to this, there are a range of assessment criteria to consider. The 700m standard for a windfarm was derived after Hegley Acoustic Consultants reviewed the Council’s initial draft plan change and advised that if anyone was with 700m (line-of-sight) of a 3MW wind
5http://www.pcc.govt.nz/DownloadFile/News---Events/Public-Consultation/District-Plan- Change-7/Plan-Change-7---Environment-Court-Decision-dated-8-October-2012
P.O. BOX 14-315 WELLINGTON 3, NEW ZEALAND. TELEPHONE 64-4-388 3407. FAX 64-4-388 3507 ACOUSAFE CONSULTING & ENGINEERING LTD 425 1843 District Plan Review Industrial Zone 13 Noise Provisions Status – Final V1
turbine, they would be likely to experience an adverse noise effect. The subsequent Environment Court decision indicates that they agreed that this is a good reason to establish a 700m discretionary activity standard to trigger a non-complying status. The fact that the Council applied this standard to a site boundary (as opposed to a notional boundary) has not been challenged. The plan change involved a lot of consultation with the local community, and several independent community groups who all eventually decided that they would support the Council's decision through the appeal process, as 274 parties. As these requirements now establish a planning precedent for wind farm noise, and in a comparative rural environment, it is recommended that PNCC adopts the relevant aspects of the Porirua City Council’s Plan Change 7. 4.12 Proposed Wind Farm Rules The NPSREG requires that objectives, policies and methods for wind farms must be balanced. The following policy framework borrows on the noise requirements of the Porirua District Plan, but should not be read in isolation, as there are other policies are contained in the Porirua District Plan which recognise the importance of developing sustainable electricity generation. The following Policy is taken from the Environment Court Decision and the subsequent Council decision (as notified) and it makes wind farms discretionary activities where the wind farm is separated by at least 700 metres from adjacent zone boundaries, and from boundaries with properties that do not form part of the wind farm site. It is recommended that this Policy be adopted for the Palmerston North City District Plan. Where the wind farm is within 700 metres from the adjoining site6, it becomes a non complying activity. For completeness, the Porirua City Plan Policy C4.2A.2 is repeated as a matter of record, in its entirety, although some parts are only relevant to landscape and amenity values and not necessarily directly linked to noise. Policy C4.2A.2 Explanation This policy recognises the importance of the development of renewable energy resources, while recognising that the development and use of wind farms, as the most likely type of renewable energy generators, have the potential to cause significant adverse effects on the environment, particularly in terms of landscape, ecology and amenity values, noise (including any low frequency noise) and traffic. These potential adverse effects and the inability of some wind farms to be able to internalise or substantially mitigate some of those effects means that a wind farm, or part thereof, may be inappropriate in some locations.
6 Meaning a site which is not part of the wind farm site.
P.O. BOX 14-315 WELLINGTON 3, NEW ZEALAND. TELEPHONE 64-4-388 3407. FAX 64-4-388 3507 ACOUSAFE CONSULTING & ENGINEERING LTD 426 1844 District Plan Review Industrial Zone 14 Noise Provisions Status – Final V1
Method of Implementation District Plan policies and rules provide for wind farms as a discretionary activity in the Rural Zone where criteria relating to separation from other Zones, separation from adjacent properties and exclusion from Landscape Protection Areas are met. This category of resource consent allows the Council to either refuse the application, or grant consent and impose conditions in order to avoid, remedy or mitigate adverse effects on the environment. The rule includes specific assessment criteria to guide Council's consideration of any applications for resource consent. Wind farms that do not meet the separation and exclusion criteria will be considered as non-complying activities. Principal Reasons Given the likely scale and the generally elevated location of wind farm developments, they may be unable to internalise all potential adverse effects that they may generate within the wind farm site. The consequential scale of effects generated on the surrounding environment will vary widely depending on the location of the wind farm and the characteristics of the surrounding area, including such factors as topography, screening and background noise. The nature of the topography and geographical layout of the City means that any wind farm will potentially be visible throughout the City. Any application for resource consent for a wind farm will need to include an assessment of the visual impact of the wind farm within the landscape and the appropriateness of the location. The discretionary activity criteria specifically excludes wind farms from being located within Landscape Protection Areas to reflect that it would be unlikely that wind farms would not significantly compromise the recognised high landscape and amenity values in these areas. The adverse effects associated with noise (including any low frequency noise) and shadow flicker may be able to be mitigated at a distance of 700m from the closest wind turbine. The status of wind farms as a discretionary activity rule reflects this by requiring a separation distance of 700m from adjacent Zone boundaries and boundaries with properties that do not form part of the wind farm site. As a discretionary activity, any wind farm will be subject to a full and rigorous assessment. Where the separation distance is not met, it is less likely that significant adverse effects will be able to be appropriately avoided, remedied or mitigated and a noncomplying activity status reflects this. Given the planning precedent this sets for wind farms it is recommended that the policy should be adapted to suit the structure of the Palmerston North City District Plan. The PCC decision was released after the 2008 GEM Workshop Report and it is recommended that the non-complying activity status be applied to wind farms within 700 metres of the site boundaries of adjacent sites which are not part of the wind farm site.
P.O. BOX 14-315 WELLINGTON 3, NEW ZEALAND. TELEPHONE 64-4-388 3407. FAX 64-4-388 3507 ACOUSAFE CONSULTING & ENGINEERING LTD 427 1845 District Plan Review Industrial Zone 15 Noise Provisions Status – Final V1
4.13 Wind Farm Discretionary Activity - Assessment Criteria The Discretionary Activity Assessment Criteria (using Porirua City Council’s Plan Change 7 as a precedent) are recommended, as follows: Wind farms where no structure (including substations and turbines) is located within [a Landscape Protection Area or within] 700 metres of: a) A Zone boundary (excluding district boundaries); or b) The boundary of a property that is not part of the wind farm. Assessment Criteria In considering whether to grant consent to an application for resource consent and, if granted, what conditions to impose, Council will have specific regard to (but will not be restricted to) the following criteria: The effects of noise, and particularly the ability to meet NZS 6808:2010 Acoustics - Wind farm noise including the identification of those times when High Amenity Area noise limits apply with respect to times and wind farm wind speeds. The ability to manage and control construction noise using the provisions of NZS6803:1999 Acoustics – Construction noise The ability to control noise resulting from any on-site manufacture of concrete and any quarrying, by reference to the noise limits in Rule R9.12.1. The provisions for safeguards and contingencies particularly concerning: o The confirmation of the manufacturer’s noise emission levels for the actual turbines to be used at the wind farm when these have been determined; o the early identification and remedy of any special audible characteristics present when the wind turbines commence operation; o changes to background sound levels that may occur between the time consent is granted and when the wind farm is constructed; o effective noise monitoring programmes to demonstrate compliance, beyond the commissioning stage; o procedures for addressing turbine malfunctions; o community liaison and methods of dealing with complaints; o Reporting these matters to Council. Domestic Wind Turbines shall comply with the Rural Zone Noise Rule R9.12.1. 4.14 Wind Farm Noise - Reverse Sensitivity The Horizon’s One Plan (Regional Policy Statement) recommends the formation of areas close to wind farms, where the District Plan should control new noise sensitive activities.
P.O. BOX 14-315 WELLINGTON 3, NEW ZEALAND. TELEPHONE 64-4-388 3407. FAX 64-4-388 3507 ACOUSAFE CONSULTING & ENGINEERING LTD 428 1846 District Plan Review Industrial Zone 16 Noise Provisions Status – Final V1
There are two methods for achieving this outcome. One is to establish noise boundaries (“windnoise” boundaries) around each wind farm and to control residential activities within the area. This control would be different from the Palmerston North Airport airnoise controls because those include provisions for the noise insulation of dwellings near to the airport. The insulation is designed to protect indoor health and amenity and to protect sleep. Noise insulating new noise sensitive activity buildings near to wind farms is not an appropriate District Plan response though because wind farm noise levels are considerably lower than those near to airports. The prospect of new dwellings close to the wind farms was considered during each resource consent hearing and it was considered unlikely that dwellings would be built closer to each wind farm than existing dwellings. On that basis, it may not be necessary therefore to provide specific noise sensitivity controls for consented wind farms within the Palmerston North City District Plan. In the current draft provisions, the following assessment criteria are included for new dwellings & accessory buildings, dependent dwelling units, relocated dwellings and early childhood facilities within 1.5km of a wind turbine: R 9.8.7 New dwellings and accessory buildings, dependent dwelling units, relocated dwellings, education and early childhood facilities located within 1.5 km of a wind turbine, on a site for which a Wind Farm resource consent has been granted, are Discretionary Activities. In considering whether to grant the application and what conditions, if any, to impose, Council shall take into account the objectives and policies of the Rural Zone, the New Zealand Standards and the following further matters: (a) The extent to which the noise attenuation methods for the buildings will be effective in terms of mitigating Wind Farm noise without compromising the overall health and amenity of occupants using the building. (b) The extent to which any topographical or physical features of the site and surrounds and any factor, including predicted wind farm noise levels, make it appropriate to locate new dwellings, education and early childhood facilities at specific sites within the 1.5 km building set back. (c) The extent to which reverse sensitivity effects on the efficient and continued operation of existing Wind Farms are avoided or mitigated. Explanation The separation distances are intended to ensure that residentially occupied buildings and education and early childhood facilities, which are noise sensitive activities, are protected from Wind Farm noise and other environmental disturbance, such as shadow flicker effects. The Discretionary Activity status provides Council with the opportunity to take into account site- specific matters and unique circumstances to ensure effects can be avoided, remedied or mitigated, and the avoidance of reverse sensitivity effects for
P.O. BOX 14-315 WELLINGTON 3, NEW ZEALAND. TELEPHONE 64-4-388 3407. FAX 64-4-388 3507 ACOUSAFE CONSULTING & ENGINEERING LTD 429 1847 District Plan Review Industrial Zone 17 Noise Provisions Status – Final V1 consented Wind Farms. It is noted that private agreements may be registered on the Certificate of Titles of any proposed dwellings, education and early childhood facilities, in favour of the Wind Farm Generator, and may assist with mitigating the adverse reverse sensitivity effects. A “no complaints” covenant serves to advise a prospective purchaser of the property of the presence of wind farm noise. Each wind farm generates different noise levels depending on the types of turbines and the numbers involved. The distance of 1.5km would provide a sensible buffer from the wind farm with 1.3km being a distance beyond which 40dB LAeq is likely to be achieved and 1.8km being the distance where 35dB LAeq is likely to be achieved. These noise levels may be achieved closer to the wind farm than these distances depending on the noise emissions from the wind farm in question and the topography. The above Performance Standard would be continued into assessment criteria where dwellings are discretionary activities. Maps have been prepared for each wind farm in the Palmerston North District (including Te Apiti Wind Farm) which illustrate the distances from the wind farm in 500 metre increments from distances of 500m to 2km. The map for Te Rere Hau wind farm is shown below. The locations of complainants about Te Rere Hau Wind farm noise have been projected separately. This projection is not included in this report for reasons of privacy. The assessment of the record of wind farm noise complaints shows that complaints have been received from residents on Harrison Hill Road, Ridgeview Road and Pahiatua Aokautere Road which are between 1km and 2km from the wind farm and a number of complaints further than 2km from residents on Pahiatua Aokautere Road and County Heights Drive. Complaints from residents on Forest Hill Road are generally closer than this. The assessment of the distances from which complaints have been received therefore reinforces the choice of a setback distance from wind farms, of at least 1.5km, within which reverse sensitivity considerations should be given to new dwellings, regarding wind farm noise. 4.15 Submissions A submission has been received from Mighty River Power suggesting another alternative to criterion (a), to deal with ‘internal noise levels’ (based on permitted activity standards, which are used in many District Plans): (a) “Whether habitable rooms within the building can be designed to achieve an internal noise level of 35 dB LAeq. If windows are required to be closed to achieve the required internal noise level then consideration shall be given to an alternative means of ventilation in accordance with Clause G4 of the New Zealand Building Code.” This type of assessment technique is appropriate in high noise environments such as near roads, in the town centre or next to the airport but isn’t effective in a low sound environment, such as next to a wind farm. A dwelling will
P.O. BOX 14-315 WELLINGTON 3, NEW ZEALAND. TELEPHONE 64-4-388 3407. FAX 64-4-388 3507 ACOUSAFE CONSULTING & ENGINEERING LTD 430 1848 District Plan Review Industrial Zone 18 Noise Provisions Status – Final V1 naturally reduce outside noise by 14-17dBA with windows ajar and by more than 20dBA with windows closed. So to achieve an indoor sound level of 35dBA the outside level can be as high as 49-52dBA before there is a need to even close the window. In addition, the ‘reach’ of Mighty River Power’s proposed control will typically occur much closer to any wind farm, than the locations where Council is receiving complaints and in areas that would not be suitable for residential development. We do not therefore see any merit in substituting this assessment criterion, for that which is proposed in R9.8.7, criterion (a).
P.O. BOX 14-315 WELLINGTON 3, NEW ZEALAND. TELEPHONE 64-4-388 3407. FAX 64-4-388 3507 ACOUSAFE CONSULTING & ENGINEERING LTD 431 1849 District Plan Review Industrial Zone 19 Noise Provisions Status – Final V1
Figure 1. Set Back Distances from Te Rere Hau Wind Farm
P.O. BOX 14-315 WELLINGTON 3, NEW ZEALAND. TELEPHONE 64-4-388 3407. FAX 64-4-388 3507 ACOUSAFE CONSULTING & ENGINEERING LTD 432 1850 District Plan Review Industrial Zone 20 Noise Provisions Status – Final V1
5 Quarry Noise 5.1 Supporting Documents On 22nd March 2013 Acousafe was sent a City-wide map of the existing quarries within the Rural Area of the City, to support the review of the Quarrying provisions. It was noted that the PNCC Quarry shown at Cambridge Avenue is of historical interest only and is ‘technically’ beyond the ambit of Proposed Plan Change 15, being located within Ashhurst and not the Rural Zone. On Acousafe’s request the quarry sites have been overlaid with a 500 metre buffer zone. This is a hypothetical area adjacent to the quarrying land where there is potential for quarry noise to impact upon residential amenity. This is discussed further below. In addition to the City-wide quarry map information was provided by Council, as follows: RC 202277: Land Use Consent to extend Linton Quarry at 310 Hewitts Road and the end of Kendalls Line. (This was a retrospective land use consent to cover the increase in scale of operations since 2001, when the original 1997 consent expired). The 1997 noise condition for the Kendall’s Line Quarry was amended in 2007 as part of a resource consent to extend the quarry. Advice was presented by Neil Jepson, an acoustical consultant acting on behalf of the applicant, on the grounds that the application of a noise limit at the site boundary: ‘resulted in an unrealistic and unnecessary noise limit on the farm land surrounding the activity, as vacant farmland does not need the degree of protection normally afforded rural dwellings and residential land’, and further ‘The noise rules better reflect the needs of the consent holder and the neighbours and are in line with the objectives of the current noise rules NZS6801:1991 and NZS6802:1991’. It was recognised that the dwelling at 150 Kendalls Lines (closest dwelling to the Quarry) was the only site that the Quarry activities did not comply with the 50dBA noise requirement, and that the applicant now owned the site. Council has expressed concern that Mr Jepson postulated this view in spite of the fact that the adjoining rural land had the Rural Residential Overlay.
P.O. BOX 14-315 WELLINGTON 3, NEW ZEALAND. TELEPHONE 64-4-388 3407. FAX 64-4-388 3507 ACOUSAFE CONSULTING & ENGINEERING LTD 433 1851 District Plan Review Industrial Zone 21 Noise Provisions Status – Final V1
Council has asked that special attention be given to this consent and that one option that should be considered is the uplifting of the Rural Residential Overlay in the vicinity of any existing consented quarries. Otherwise we are asked to provide any other relevant guidance to Council. Council also identified that the Pratt Quarry on Back Road, Aokautere is near to land with the Rural Residential Overlay. 5.2 Existing District Plan Activity Status Rule R 9.9.3 sets out the activity status and assessment criteria for quarries, as follows: Quarrying, including the removal of sand, shingle, soil or other material is a Discretionary Activity (Unrestricted). In determining whether to grant consent and what conditions if any to impose, Council will, in addition to the City View objectives in section 2 and the Rural Zone objectives and policies, assess any application in terms of the following further policies: (a) To avoid, remedy or mitigate the adverse effects on the safe and efficient operation of the roading network from the traffic movements generated by activities. (b) To ensure the provision of adequate on-site parking, loading, manoeuvring and access space to avoid this taking place on roads.
P.O. BOX 14-315 WELLINGTON 3, NEW ZEALAND. TELEPHONE 64-4-388 3407. FAX 64-4-388 3507 ACOUSAFE CONSULTING & ENGINEERING LTD 434 1852 District Plan Review Industrial Zone 22 Noise Provisions Status – Final V1
(c) To avoid, remedy or mitigate the effects of noise, dust and other environmental disturbances on the amenity values of the area, particularly on adjacent residential uses. (d) To require any proposed reinstatement works to return the land to its previous, or a better state. (e) To avoid, remedy or mitigate the effects of the proposal on any area of environmental or (f) To ensure that the extraction of gravel has no adverse effects on the management of the potential of the river and/or stream to flooding. (g) To avoid, remedy or mitigate the effects on soil stability. (h) To avoid, remedy or mitigate any potential effects on water quality and river or stream habitats if quarrying is undertaken near rivers or streams. Explanation Quarrying within the City frequently takes place at the interface of the land and a river. As such, this area represents a delicate environmental area on which there is the potential for significant adverse effects. Care needs to be exercised to ensure these and other effects such as noise can be mitigated and that land is restored to a reasonable state at the end of operations. In respect of these activities, it should be noted that the Manawatu- Wanganui Regional Council may have separate consent requirements. 5.3 Existing District Plan Noise Rules The noise rule for the Rural Zone is found in Rule R 9.12.1 and is set out above. This Rule provides a moderately strict noise control regime which is approximately 5dB stricter than the least strict noise limits recommended by NZS6802 at the residential interface. The reasons for applying the noise limits at the site boundary rather than the notional boundary are set out previously in this report. By applying the noise limits at the site boundary this protects the land itself from external noise (which is perceived as relevant to the rural land in the Palmerston North District) and allows a further assessment to be made of future use of land if the need is to exceed District Plan limits at that location. There are no quarries currently in the Manawatu District that will become part of Palmerston North City as part of the boundary change. 5.4 Existing Quarries The City Wide Quarry Map in Appendix A shows the location and physical extent of existing quarries in the City. The Cambridge Avenue site is historical as is not to be included in this assessment. There are eight other quarries
P.O. BOX 14-315 WELLINGTON 3, NEW ZEALAND. TELEPHONE 64-4-388 3407. FAX 64-4-388 3507 ACOUSAFE CONSULTING & ENGINEERING LTD 435 1853 District Plan Review Industrial Zone 23 Noise Provisions Status – Final V1 shown on the Map with Napier Road, Te Matai Road and Raukawa Road quarries located in the Rural Zone and in some part, the Flood Protection Zone. None of these quarries are located in areas where the site or nearby land is located within the Rural Residential Overlay. With the exception of Kendall’s Line Quarry, the resource consents for each of the quarries within the Palmerston North City require that the noise from the quarry must comply with the District Plan noise limits (refer R9.12.1). These apply residential noise standards at the site boundary of the quarry and ensure that noise levels are internalised. If these conditions are met, then there is theoretically no need to provide for any reverse sensitivity issues on land adjoining the quarries. However, it must be recognised that quarries are an import resource in the City. Closure of quarries because of reverse sensitivity issues will have significant impacts on the costs of aggregate and roading materials. A significant cost of aggregate relates to the bulk transportation of materials. There are three options available for the control of reverse sensitivity noise from quarries: Option 1 Do nothing and allow the noise limits applied at the site boundary to control residential amenity in Rural (and Rural Residential Areas and Rural Residential Overlay). Option 2 Place land use planning constraints on residential (noise sensitive) development close to quarries where adverse noise effects could potentially arise. Option 3 Uplift the Rural Residential Overlay close to established quarries to remove the expectation that this land is suitable for residential development and control the density and location of noise sensitive activities on that land. While Option 1 is theoretically sound it ignores the pragmatic consequences that a quarry inevitably generates adverse noise impacts that contaminate surrounding land. For this reason Option 1 is not preferred. The choice then becomes whether Option 2 (fully constraining new development) is required or whether Option 3 is appropriate on the basis that dwellings could co-exist with quarries in a rural setting on a restricted basis. In this situation the quarries are existing quarries in rural areas of the District and there are existing dwellings in the surrounding rural areas which have historically been developed on a farm by farm basis. Without the Rural Residential Overlay there would be controls on the density of residential development. The Rural Zone minimum subdivision lot size is currently 4 hectares whereas the Rural-Residential Overlay reduces this to 1 hectare. It is seen as important therefore that the Rural Residential Overlay is removed from land near to the existing quarries thus removing any encouragement for future residential development. Option 3 is therefore preferred.
P.O. BOX 14-315 WELLINGTON 3, NEW ZEALAND. TELEPHONE 64-4-388 3407. FAX 64-4-388 3507 ACOUSAFE CONSULTING & ENGINEERING LTD 436 1854 District Plan Review Industrial Zone 24 Noise Provisions Status – Final V1
It is therefore recommended that consideration be given to the uplifting of the Rural-Residential Overlay in the 500 metre projected buffer, shown in Appendix A around relevant quarry sites, i.e. Back Road, Kendalls Line, and Scotts Road. The existing Plan contains no specific reference to reverse sensitivity effects within Section 7: subdivision of rural land (Objective 1 in 7.3; Policy 1.5) but direct reference is made to reverse sensitivity effects in the Policy for rural- subdivision for rural residential living (Objective 1 in 7.3; Policy 1.6, Clause 6). This provides for rural-residential subdivision with the proviso that “actual and potential reverse sensitivity effects in relation to nearby activities, activities allowed by zoning, or anticipated urban growth, are avoided or can be adequately mitigated”. The reasoning here is that the size of rural subdivision on a 4 hectare site can naturally provide for buffering to neighbouring nuisance whereas this is more difficult on sites that are 1 hectare. It is therefore recommended that the Rural-Residential Overlay be uplifted within a distance of 500 metres of existing quarry land. Beyond 500 metres, the quarry activity would be naturally remedied or mitigated to ensure that adverse noise impacts are avoided. The District Plan limits still control the noise emissions of quarries and these apply at the site boundary. With respect to the Kendall’s Line Quarry the 2007 consent altered the location where the District Plan noise limits apply from the site boundary to specific residential locations. The result of this is that the noise now contaminates adjoining land that is zoned rural but enables subdivision for rural-residential lots. It becomes particularly pertinent therefore to manage the use of this land such that residential development is not encouraged in areas where noise levels are greater than those that are recommended by New Zealand Standards. 6 State Highway Noise Residential set-backs for the main traffic routes rely on recent NZTA recommendations, resulting from evidence presented to the Board of Inquiry for Transmission Gully7. The Board was told by Dr Stephen Chiles on behalf of NZTA that the acceptable internal noise levels inside habitable rooms in dwellings is now 40dB LAeq(24 hours). This is the same for bedrooms because the night-time noise level of traffic noise is significantly less than the daytime level, and this provides the appropriate differential that is otherwise experienced between daytime and night-time noise criteria. On that basis the set-back distances for various roads will change from that previously recommended. In the case of the Plan Change 6 (Whakarongo
7 Final Report and Decision of the Board of Inquiry into the Transmission Gully Proposal
P.O. BOX 14-315 WELLINGTON 3, NEW ZEALAND. TELEPHONE 64-4-388 3407. FAX 64-4-388 3507 ACOUSAFE CONSULTING & ENGINEERING LTD 437 1855 District Plan Review Industrial Zone 25 Noise Provisions Status – Final V1
Residential Area) (PC6) the setback requirement for dwellings from State Highway 3 is 40 metres because this is required to establish an acceptable outdoor environment. The distance from the road within which dwellings need to be noise insulated is now 80 metres, reduced from the earlier setback distances of 100 metres as a noise insulation zone, which was previously based on NZTA Policy Guidelines8. Tables 1 and 2 from the NZTA Guidelines are copied below:
The speed limit on rural roads is commonly 100km/hr and the traffic profile will change between different routes. It is recommended however, using the precautionary principle, that the Traffic Profile Type is selected as Category C in Table 1. This has the Distance for the Environment Buffer Area (set-back) as 40 metres and Road Noise Effects Area (requiring noise insulation) as 100 metres. The Road Noise Effects Area has been reduced to 80 metres because of the change in NZTA Policy for internal noise levels and this allows the Effects Area to be reduced. However the Buffer Area protects both indoor and outdoor amenity and, as such, is not influenced by the shift in NZTA Policy. These principles were adopted for PC6 as follows: All noise sensitive activity buildings constructed within 80 metres of the nearest carriageway edge of a State Highway shall be designed,
8http://www.nzta.govt.nz/resources/planning-policy-manual/docs/planning-policy-manual- appendix-5D.pdf
P.O. BOX 14-315 WELLINGTON 3, NEW ZEALAND. TELEPHONE 64-4-388 3407. FAX 64-4-388 3507 ACOUSAFE CONSULTING & ENGINEERING LTD 438 1856 District Plan Review Industrial Zone 26 Noise Provisions Status – Final V1
constructed and maintained in accordance with a design report prepared by a suitably qualified and experienced acoustical engineer stating that the design as proposed will achieve compliance with an internal noise level of 40dB LAeq(24hr) in habitable rooms. Provided that no noise sensitive activity building is constructed within 40 metres of the nearest carriageway edge of a State Highway. These set-back and noise insulation requirements do not apply to non habitable accessory buildings. Where bedrooms and sleeping areas with openable windows are proposed in buildings requiring acoustic insulation, a positive supplementary source of fresh air ducted from outside is required at the time of fit-out. For the purposes of this requirement, a bedroom is any room intended to be used for sleeping. The supplementary source of air is to achieve a minimum of 7.5 litres per second per person, For all other developments, compliance shall be achieved with the satisfactory design guidelines given in AS/NZS 2107:2000: Acoustics – recommended design sound level and reverberation times for building interiors. The ventilation provision and reference to other developments is common to the recommendations for railways below and can be merged. The provision for an exemption from the requirements for non habitable accessory buildings was agreed to during the hearing. The Plan Change 6 decision had just been issued at the time of writing this report, 7 Rail Noise Acousafe also made recommendations for rail noise management and control for the proposed structure plan for PC6. The recommendations for setbacks from the railway resulted from discussions with KiwiRail around the requirements for the Hauraki District Plan, which followed KiwiRail’s draft noise guidelines. At Hauraki, it was deemed appropriate to set indoor noise limits of 40dB LAeq(1hr) inside bedrooms and 45dB LAeq(1hr) inside other habitable spaces . Rail noise tends to be less annoying than aircraft noise or road noise for the same noise dose. For the purposes of compliance with appropriate indoor limits, KiwiRail proposed that train noise shall be deemed to be 70dB LAeq(1hr) at 12 metres from the closest rail track and that this level would vary at a rate of 3dB per doubling of distance up to 30 metres, and 6dB per doubling beyond 30 metres. Noise insulation is required up to 70 metres from the edge of the nearest railway track. At this distance the sound insulation of a dwelling with windows closed will naturally control train noise to acceptable limits for that category of transportation noise.
P.O. BOX 14-315 WELLINGTON 3, NEW ZEALAND. TELEPHONE 64-4-388 3407. FAX 64-4-388 3507 ACOUSAFE CONSULTING & ENGINEERING LTD 439 1857 District Plan Review Industrial Zone 27 Noise Provisions Status – Final V1
As a result of discussions with KiwiRail during the PC6 consultation process, an additional set-back distance of 30 metres from the edge of the railway line was introduced to the proposed rules and this is a reasonable distance to provide protection to dwellings from immediate noise and vibration from the railway track. This set-back would not apply to accessory buildings. The following Rules are therefore recommended to control the reverse sensitivity effects of inappropriate development close to the Railway Lines: All noise sensitive activity buildings constructed within 70 metres of the nearest edge of the railway track shall be designed, constructed and maintained in accordance with a design report prepared by a suitably qualified and experienced acoustical engineer stating that the design as proposed will achieve compliance with an internal noise level of 45dB LAeq(1hr) in living rooms and 40dB LAeq(1hr) in bedrooms. Provided that no noise sensitive activity building is constructed within 30 metres of the nearest edge of a railway track. These set-back and noise insulation requirements do not apply to non habitable accessory buildings. Where bedrooms and sleeping areas with openable windows are proposed in buildings requiring acoustic insulation, a positive supplementary source of fresh air ducted from outside is required at the time of fit-out. For the purposes of this requirement, a bedroom is any room intended to be used for sleeping. The supplementary source of air is to achieve a minimum of 7.5 litres per second per person, For all other developments, compliance shall be achieved with the satisfactory design guidelines given in AS/NZS 2107:2000: Acoustics – recommended design sound level and reverberation times for building interiors. The ventilation provision and reference to other developments is common to the recommendations for State Highways above and can be merged. 8 General Reverse Sensitivity Considerations Special provision is recommended in this report for quarries, road and rail. These are identified as important infrastructural activities that inevitably generate noise. Special reverse sensitivity considerations are also given to the Palmerston North Airport operations. During pre-consultation on Draft Plan Change 15, a specific submission was received from Radio New Zealand seeking a setback of 1,000 metres for their emergency standby generator at a designated site at Gillespies Line. The site was previously in the Manawatu District. We do not consider that this fits within the same ambit as other activities discussed above, for which set-backs have been recommended. Emergency stand-by generators generally only operate during power failure or for maintenance purposes. In any event, the set-back distance of 1,000 metres for a generator is excessive. Any generator
P.O. BOX 14-315 WELLINGTON 3, NEW ZEALAND. TELEPHONE 64-4-388 3407. FAX 64-4-388 3507 ACOUSAFE CONSULTING & ENGINEERING LTD 440 1858 District Plan Review Industrial Zone 28 Noise Provisions Status – Final V1 that makes that much noise should be noise insulated to ensure that the best practicable option is being adopted in line with the duty imposed by S16 RMA. This normally involves the generator being correctly housed and with residential type silencers being installed. It is recommended that the submission seeking this set-back be declined. 9 Conclusions This review of the Rural Zone noise provisions provides for the limits to be expressed in terms of the latest New Zealand Standards for the measurement and assessment of noise. In analysing these options it is recommended that numerically similar noise limits, expressed as LAeq, be provided for in the Rural Zone with respect to protecting neighbouring Residential Zones and neighbouring sites within the Rural Zone. This recognises the rural residential character of parts of the Palmerston North Rural Area. Significant noise issues have arisen within the Rural Zone with the existing wind farms in Palmerston North City and in the Tararua District. Noise from Te Apiti and Tararua wind farms has been controlled such that only a small number of complaints are received from Palmerston North City residents. Te Rere Hau Windfarm has caused a large number of noise complaints over a long period of time, leading to Council seeking a Declaration from the Environment Court on a number of matters. This review recommends that Objectives, Policies and Rules for wind farms include provisions like those in the Porirua City District Plan which categorised wind farms as non complying activities when they are proposed to be established within 700 metres of a neighbouring site, which does not form part of the wind farm. Otherwise, proposed wind farms are to be assessed as discretionary activities. It is recommended that wind farms be assessed in accordance with NZS6808 with existing Rural Residential Areas (Aokautere Rural Residential Area and the Moonshine Valley Rural Residential Area) and areas within the rural residential subdivision overlay area, being categorised as High Amenity Areas. The assessment criteria are revised and updated to include those additional matters that were deemed important during the Turitea Windfarm Board of Inquiry hearing and which were established as consent conditions for that windfarm. Reverse sensitivity measures are discussed with a possible Performance Standard established to ensure that proposed dwellings and other noise sensitive activities are discretionary activities, if constructed closer than 1.5km from consented wind turbines. This review also considers the reverse sensitivity measures relating to the control of inappropriate noise sensitive developments close to quarries, State Highways and near to railway lines. With respect to quarries it is recommended that the Rural Residential Overlay be uplifted within 500 metres of established quarries.
P.O. BOX 14-315 WELLINGTON 3, NEW ZEALAND. TELEPHONE 64-4-388 3407. FAX 64-4-388 3507 ACOUSAFE CONSULTING & ENGINEERING LTD 441 1859 District Plan Review Industrial Zone 29 Noise Provisions Status – Final V1
With respect to new noise sensitive developments near to the State Highways and the railway it is recommended that new noise sensitive activities are required to be noise insulated where the building is within 80 metres of the State Highway and within 70 metres of the railway line. Set-backs are recommended within 40 metres for the State Highway and 30 metres for the railway line. Other developments will need to comply with the satisfactory design guidelines in AS/NZS 2107:2000: Acoustics – recommended design sound level and reverberation times for building interiors.
P.O. BOX 14-315 WELLINGTON 3, NEW ZEALAND. TELEPHONE 64-4-388 3407. FAX 64-4-388 3507 ACOUSAFE CONSULTING & ENGINEERING LTD 442 1860 District Plan Change 15 Rural Zone Noise Provisions Status – Final V1
APPENDIX A TURITEA WIND FARM RESOURCE CONSENT NOISE CONDITIONS
P.O. BOX 14-315 WELLINGTON 6241, NEW ZEALAND. TELEPHONE 64-4-388 3407 ACOUSAFE CONSULTING & ENGINEERING LTD 443 1861 Mighty River Power Generation Title: Turitea Wind Farm – Resource Consent Conditions
Responsibility: Turitea Project Manager
Date Issued: 5 August 2011 Revision: 1.4
Excavation of Koiwi Tangata Remains
11. If during construction activities, any Koiwi (skeletal remains) or similar material are uncovered, works are to cease within a 100m radius of the discovery immediately, and the Consent Holder shall notify the New Zealand Police, local iwi, the New Zealand Historic Places Trust and the relevant Environmental Compliance Manager(s). Works shall not recommence in that area until a site inspection is carried out by iwi representatives, relevant Council staff, and staff from the Historic Places Trust and the New Zealand Police (if they consider it necessary); the appropriate ceremony has been conducted by iwi (if necessary); the materials discovered have been removed by the iwi responsible for the tikanga appropriate to their removal and preservation or re-interment, or alternative action (e.g. works are relocated) has been taken; and approval to continue work is given by the relevant Environmental Compliance Manager(s).
Area of Local Significance
12. In the event that earthworks are undertaken within sites that local iwi have indicated to the Consent Holder in writing are of significance, the Consent Holder shall invite a tangata whenua representative on site to monitor the works.
13. The historic sites situated within the site, as identified in the Archaeological Assessment included as Appendix G of the application documents, shall be temporarily fenced off for the duration of site works to prevent accidental damage during construction.
Acoustic Matters
Construction Noise
14. Noise from all construction work shall be measured and assessed in accordance with NZS6803, and shall comply with the noise limits for long-term duration set out in that Standard.
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Responsibility: Turitea Project Manager
Date Issued: 5 August 2011 Revision: 1.4
15. A CNMP shall be prepared prior to the commencement of any construction works and shall be properly implemented at all times. The CNMP shall be generally in accordance with section 8 and the relevant annexures of NZS6803, which detail the relevant types of construction to which the CNMP is to apply, and procedures that will be carried out to ensure compliance with that Standard.
16. The CNMP shall be prepared by an appropriately qualified and experienced acoustic consultant, and shall be submitted to the Environmental Compliance Managers of each respective Council for review, acting in a technical certification capacity. A response should be provided within 30 working days of receipt. Construction activities must not commence until written certification has been obtained.
Operational Noise Levels (Non Turbine Related)
17. Noise from all other activities on the site (other than wind turbine generator operation, and construction activities including concrete manufacture) shall not exceed the following:
7.00am to 10.00pm 50dB LAeq
10.00pm to 7.00am 40dB LAeq
10.00pm to 7.00am 70dB LAmax
when measured at or within the boundary of any site other than the wind farm site. For the purpose of clarity, this condition does not apply to dwellings in respect of which the Consent Holder has reached agreement with the landowner. The noise shall be measured in accordance with NZS6801 and assessed in accordance with NZS6802.
Operational Noise Levels (Turbines)
18. The turbines shall be designed, constructed, operated and maintained so that wind farm sound levels shall comply with NZS6808 except where stated otherwise in the following conditions:.
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Responsibility: Turitea Project Manager
Date Issued: 5 August 2011 Revision: 1.4
18.1 The wind farm sound levels (LA90(10 min)) shall not exceed the background sound level (as described by the NMP discussed in condition 23.1 below) by
more than 5dB, or a level of 40dB LA90(10 min), whichever is the greater except for times when the wind speed and background noise levels are such as to trigger a secondary noise limit, as set out in condition 18.2 below;
18.2 When the wind farm speed is 6m/s or lower when measured within the Northern Turbine Zones (for residences in proximity to those turbines) or Southern Turbine Zones (for residences in proximity to those turbines), a secondary noise limit shall apply under which the wind farm sound levels
(LA90(10 min)) shall not exceed the background sound level (as described by the
NMP discussed in 23.1 below by more than 5dB, or a level of 35dB LA90(10 min), whichever is the greater;
18.3 This secondary noise limit shall apply only between the hours of 10pm to 7am.
19 Wind farm sound shall be measured and assessed in accordance with NZS 6808 and these conditions of consent within the:
19.1 notional boundary of any residential dwelling either existing or consented at the date of this consent (excluding residential dwellings on properties on which turbines are located or where the owner has provided written consent to the wind farm); or
19.2 property boundary of any residentially zoned site on which a residential dwelling is able to be constructed as a permitted activity in accordance with the relevant plan rules, as at the date of this consent.
20 For the avoidance of doubt and for the purposes of compliance with condition 18, the “Reference Test method” shall be adopted for testing whether the wind farm has tonal special audible characteristics, in accordance with Appendix B of NZS 6808.
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Responsibility: Turitea Project Manager
Date Issued: 5 August 2011 Revision: 1.4
21 The wind farm shall be designed with wind turbines that minimise noise emissions and that do not generate special audible characteristics.
NMP
22 A NMP shall be submitted to the Palmerston North City Council and Tararua District Council Principal Planners for review, acting in a technical certification capacity, prior to commencement of operation of the wind farm. A response should be provided within 30 working days of receipt.
23 The NMP shall be prepared by the Consent Holder in conjunction with an appropriately qualified and experienced acoustic consultant, and shall, as a minimum, include:
23.1 An assessment of background sound levels which shall form the basis of the noise limits described in condition 18;
23.2 Wind turbine selection, having regard to the sound power level predictions obtained in accordance with section 6.2, and the special audible characteristics in clause 5.4.1 of NZS6808;
23.3 Any further procedures necessary for ensuring compliance with the noise limits in condition 18 in addition to those already provided in these consents, including noise compliance testing, methods for addressing non-compliance, and contacts and complaints procedures;
23.4 Procedures for addressing turbine malfunctions that cause material noise effects beyond typical operational noise;
23.5 Any further requirements for post construction noise monitoring and assessment in addition to those already provided in these consents; and
23.6 Provisions regarding review and updating of the NMP.
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Responsibility: Turitea Project Manager
Date Issued: 5 August 2011 Revision: 1.4
24 The Consent Holder shall operate the wind farm and act in compliance with the NMP at all times.
Noise Monitoring Costs
25 The Consent Holder shall pay all reasonable costs associated with the compliance testing or assessment undertaken in accordance with these conditions.
Pre-Instalment Assessment
Acoustic Emissions Report
26 Prior to commencement of operation of the wind farm, the Consent Holder shall provide Palmerston North City Council’s Principal Planner with an Acoustic Emissions Report in accordance with NZS6808 which details the sound power level of the selected turbines, and confirms the selected turbines are not expected to have special audible characteristics.
Noise Prediction Report
27 Prior to commencement of operation of the wind farm, the Consent Holder shall provide Palmerston North City Council’s Principal Planner with a Noise Prediction Report in accordance with NZS6808 (and in particular sections 8.1, 8.2 and 8.4.2). The Noise Prediction Report shall:
27.1 be based on the sound power levels for the selected turbines, and demonstrate that the limits in condition 18 can be complied with;
27.2 identify the background sound levels and noise limits in accordance with condition 18;
27.3 include the finalised 35dBA contour for the project, pertaining to the wind speed at which the highest noise level is emitted from the selected turbines;
27.4 be detailed and accurate enough to determine (as shown on a map attached to the Noise Prediction Report) in the event that compliance with the limits in
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Responsibility: Turitea Project Manager
Date Issued: 5 August 2011 Revision: 1.4
condition 18 cannot be achieved with unrestricted operation, which wind turbines will be de-rated, by how much and under what circumstances; and
27.5 outline the control systems to be put in place so that the wind farm operates in accordance with the constraints in condition 27.4 from commissioning if necessary.
Background Noise Surveys
28 The Consent Holder shall engage an appropriately qualified and experienced acoustic consultant to undertake pre-installation background noise surveys at positions identified by the Consent Holder in consultation with the Palmerston North City and Tararua District Councils in addition to those undertaken for the Resource Consent application. The background noise surveys should include separately correlated background sound levels for the predominant north-westerly and south-easterly wind directions for both daytime and night-time periods (night- time as defined in condition 18.3). The surveys shall be undertaken, and results assessed, in accordance with sections 7 and 8.2 of NZS6808.
Noise monitoring during start up
29 The Consent Holder shall arrange for a minimum of 3 continuous NMT to be installed at appropriate locations around the wind farm site, and moved as different turbines (or groups of turbines) become operational. The NMTs shall be installed from when the first wind turbine (or group of turbines) become operational, until 3 months after the last turbine (or group of turbines) become operational or until such time as an appropriately qualified and experienced acoustic consultant engaged by the Consent Holder determines that sufficient representative monitoring has been undertaken of all contributing turbines, operating in representative wind speeds, directions and times of day/night.
30 The NMT shall be capable of carrying out audio recordings as necessary.
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Responsibility: Turitea Project Manager
Date Issued: 5 August 2011 Revision: 1.4
31 The NMT shall also be capable of producing a “regression curve” based on a rolling 10-day block of data, which is suitable for comparison with the noise limit regression curve in accordance with the procedures specified in NZS6808.
32 The Consent Holder shall ensure that after the first 2 weeks of monitoring, the rolling “regression curve” is emailed to the Palmerston North City Council’s Environmental Compliance Manager on a weekly basis for the remainder of the monitoring period, and after that, provided as requested by the local authority.
33 The appropriate number and locations for the NMT, and weather stations necessary for undertaking the necessary assessment, shall be determined as required throughout the monitoring period, by an appropriately qualified and experienced acoustic consultant engaged by the Consent Holder in consultation with the Environmental Compliance Manager of Palmerston North City Council or Tararua District Council as appropriate. In making this determination, the acoustic consultant shall in particular have regard to the number and location of contributing turbines currently operational and/or about to become operational, and their proximity to any residential properties.
34 The Consent Holder shall submit a monthly report to the Palmerston North City Council’s Environmental Compliance Manager outlining the results of the noise monitoring undertaken in accordance with condition 29, and reporting on compliance with the noise consent conditions. The first of these reports shall be provided 1 month after the first wind turbine (or group of turbines) becomes operational, and the last of these reports provided within 20 working days of the last turbine (or group of turbines) becoming operational.
Operational noise monitoring and assessment
Monitoring to determine compliance with NZS6808
35 If requested by the Environmental Compliance Manager of either the Palmerston North City or Tararua District Council, the Consent Holder shall undertake additional post-installation noise monitoring at any location, at any wind speed and direction,
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or time of day, for the purpose of determining compliance with the noise consent conditions or investigating complaints.
36 Any post-installation noise monitoring required in accordance with condition 35 shall be undertaken by an appropriately qualified and experienced acoustic consultant, and in accordance with the requirements of NZS6808. The results shall be submitted to the Environmental Compliance Manager of the appropriate Council within 10 working days after completion of the testing.
37 Should either the Palmerston North City or Tararua District Councils choose to undertake its own noise monitoring for whatever reason then the Consent Holder shall provide the wind data required to analyse the results in accordance with the noise consent conditions.
Assessment with respect to complaints regarding unreasonable noise
38 If requested by the Environmental Compliance Manager of either the Palmerston North City or Tararua District Council, the Consent Holder shall engage an appropriately qualified and experienced acoustic consultant, who together with the relevant Council’s nominated representative, shall undertake an assessment in similar meteorological conditions to those existing at the time of any complaint, to determine whether noise emanating from the wind farm is unreasonable in terms of section 16 of the Act. For the avoidance of doubt, this assessment may require sound file recordings to be taken and analysed.
39 A request in accordance with condition 38 may be made:
39.1 at any time after the first turbine (or group of turbines) becomes operational; and
39.2 as a result of complaints regarding unreasonable noise emanating from the wind farm, in circumstances where the Council’s Environmental Compliance Manager considers that such a complaint may not solely relate to a non- compliance with the noise limits from NZS6808.
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Responsibility: Turitea Project Manager
Date Issued: 5 August 2011 Revision: 1.4
40 The results of the assessment undertaken in accordance with condition 38 shall be submitted to the Environmental Compliance Manager of the appropriate Council within 10 working days after completion of the assessment.
Monitoring to determine any cumulative effects issues
41 Prior to any wind turbines becoming operational in the Northern Turbine Zones, a continuous NMT shall be installed at position representative of the noise received in the Northern Turbine Zones. The Consent Holder shall engage an appropriately qualified and experienced acoustic consultant who shall, in consultation with the Environmental Compliance Manager of Palmerston North City Council or Tararua District Council as appropriate, determine the appropriate location for the NMT.
42 The NMT referred to in condition 41 shall be installed for a minimum of 3 years from the date of commissioning the first turbine or group of turbines. The NMT shall be capable of collecting the following data, which shall be available to the Consent Holder (or its acoustic consultant) “on line” to enable remote evaluation of it, and saved for at least 3 months to allow subsequent analysis if required:
42.1 10 minute measurements of LAeq, LA90 and LAmax;
42.2 1 minute LAeq measurements;
42.3 One third spectral data available for the above time periods; and
42.4 Either direct recordings of the following meteorological data: wind speed and wind direction, or have this information available from a nearby station.
43 If requested by the Environmental Compliance Manager of either the Palmerston North City or Tararua District Council, the Consent Holder shall engage an appropriately qualified and experienced acoustic consultant to review the data from the NMT to determine if there has been any non-compliance with the noise consent conditions that may have resulted in a complaint, and if so, the turbines that contributed to this.
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Responsibility: Turitea Project Manager
Date Issued: 5 August 2011 Revision: 1.4
44 If the review of the NMT data is conclusive as to any non-compliance with the noise consent conditions, and the causes of this, the results of the review shall be submitted to the Environmental Compliance Manager of the appropriate Council within 10 working days after completion of the review.
45 If the review of the NMT data is not conclusive as to any non-compliance with the noise consent conditions, and the causes of this, the acoustic consultant shall as soon as reasonably practicable considering the relevant meteorological conditions undertake any additional field measurements they consider necessary to reach a conclusion as to the cause and validity of the noise complaint. The results of the field investigations shall be submitted to the Environmental Compliance Manager of the appropriate Council within 10 working days of the investigations being completed.
46 In the event the expert review and field investigations (if any) demonstrate a non- compliance with the noise consent conditions, and that such non-compliance would not have occurred had there not been any contribution of noise from either or both of the Northern Turbine Zone or Southern Turbine Zone (whether or not there was also any contribution of noise from the turbines of the Te Rere Hau wind farm), the requirements of condition 50 shall apply.
47 For the avoidance of doubt, the NMT required in accordance with condition 41 may be one of the NMTs required in accordance with condition 29.
Response to Noise Monitoring and Assessment
48 The Consent Holder shall provide copies of any reports or assessments submitted in accordance with conditions 34, 36, 40, 44, or 45 to the CLG, within the same timeframes as the respective clauses require they be submitted to the appropriate Council(s).
49 If the monitoring or assessments undertaken in accordance with conditions 29, 35, 38 and 41 show there has not been any non-compliance with the noise consent conditions nor any unreasonable noise finding, then the Consent Holder shall not
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be required to take any further action by way of response to that monitoring and assessment.
50 If the monitoring or assessments undertaken in accordance with conditions 29, 35 or 38 show there has been any non-compliance with the noise consent conditions and/or there is an unreasonable noise finding, or the circumstances in condition 46 apply:
50.1 As soon as reasonably practicable, the Consent Holder shall engage an appropriately qualified and experienced acoustic consultant to undertake such assessment as may be necessary to determine which turbine(s) are likely to be causing the non-compliance or unreasonable noise (if this has not already been determined);
50.2 Within 1 working day of being advised which turbine(s) are likely to be causing the non-compliance or unreasonable noise, the Consent Holder shall de- rate, including if necessary stopping, those turbines;
50.3 Once de-rated, the relevant turbines may only be re-commissioned after the Consent Holder has undertaken such repairs, testing and/or any other measures as may be necessary to ensure that those turbines can be operated without causing any non-compliance with the noise consent conditions or unreasonable noise;
50.4 For the avoidance of doubt, during the time that any turbine is subject to de- rating in accordance with condition 50.3:
a. the relevant turbine(s) may be operated in such circumstances and for such durations as may be necessary for undertaking compliance testing;
b. the relevant turbine(s) may be operated at such times or in such meteorological conditions where the monitoring or assessments undertaken in accordance with conditions 29, 35, 38 and 41 have
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confirmed that the operation of the turbines in those conditions will not result in any non-compliance with the noise consent conditions; and
c. the Consent Holder shall submit a weekly report to the Palmerston North City Council’s Environmental Compliance Manager and the CLG outlining the current status of the investigations being undertaken with respect to the relevant turbines.
50.5 When any turbine (or turbines) are re-commissioned in accordance with condition 50.3, the Consent Holder shall engage an appropriately qualified and experienced acoustic consultant to undertake such further monitoring and assessment as the consultant considers necessary to confirm that the turbine (or turbines) are now operating in compliance with the noise consent conditions. The results of this monitoring or assessment shall be submitted to the Palmerston North City Council’s Environmental Compliance Manager and the CLG within 10 working days of the turbine (or turbines) being re- commissioned.
50.6 For the avoidance of doubt, if the monitoring and assessment undertaken in accordance with condition 50.5 shows that there is still a non-compliance with the noise consent conditions, the requirements of conditions 50.1 to 50.5 shall apply as appropriate and necessary.
Review of Noise Conditions
51 In accordance with section 128 of the Act, the Palmerston North City and Tararua District Councils may serve notice on the Consent Holder of its intention to review any of the noise conditions of this consent:
51.1 if the wind turbine generators are installed in stages, at 1 year after completion of the first and each subsequent stage, 3 and 5 years after the final completion and then every 5 years thereafter; or
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51.2 if the wind turbine generators are not installed in stages, at 1, 3 and 5 years after the completion of all construction works and then every 5 years thereafter.
52 Any reviews must be completed within 6 months of t he notice being given in accordance with condition 51.
P.O. BOX 14-315 WELLINGTON 6241, NEW ZEALAND. TELEPHONE 64-4-388 3407 ACOUSAFE CONSULTING & ENGINEERING LTD 456 1874 ±
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457 1875 PALMERSTON NORTH CITY COUNCIL
PROPOSED PLAN CHANGE 15 A-H
UNDER PART 1 SCHEDULE 1 RESOURCE MANAGEMENT ACT 1991
DECISION OF THE HEARING COMMISSIONERS
Commissioners: Chris Mitchell (chair), Stuart Kinnear, Susan Baty, Tangi Utikere, Annette Nixon Leonie Hapeta, Ross Linklater, Rachel Bowen and Philip Milne
Date of Hearings: 14 October - 9 December 2015
Date of decision: 22 August 2016
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Contents
1. Introduction ...... 3 2. The Commissioners and Delegations ...... 4 3. Plan Change 15A-H: general approach to decision making ...... 5 4. Legal and Planning Framework ...... 6 5. Formal decision on PC15A-H ...... 12 6. Plan Change 15A Rural Zone ...... 13 7. PC15A Rural Subdivision ...... 27 8. Plan Change 15B Windfarms and Landscapes ...... 54 9. Plan Change 15C Boundary Change Area ...... 76 10. Plan Change 15D Flood Hazards ...... 80 11. Plan Change 15E North East Industrial Zone and Extension Area ...... 91 12. Plan Change 15F Braeburn Industrial Area (BIA) ...... 108 13. Plan Change 15G Utilities ...... 122 14. Plan Change 15H Airport ...... 136 15. Rezoning and requests from NDF and NZFS Submissions ...... 150 16 Further evaluation under section 32AA ...... 166 17. Conclusion ...... 169
Appendix 1: PC15A-H as amended by this decision
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1. Introduction
1) Plan Change 15 is an omnibus of eight separate but related topics A-H. It is part of the sectional review of the District Plan begun in 2011. The full description of PC15A-H is as follows:
a) Plan Change 15A: Rural Zone and Rural Subdivision b) Plan Change 15B: Wind Farms and Landscapes c) Plan Change 15C: Boundary Change Area d) Plan Change 15D: Flood Hazards e) Plan Change 15E: North East Industrial Zone and Extension Area f) Plan Change 15F: Braeburn Industrial Area (Longburn) g) Plan Change 15G: Utilities h) Plan Change 15H: Airport Zone
2) PC15A-H was notified on 29 January 2015. There were 91 submissions and 32 further submissions. Many submissions were on several parts of PC15.
3) The hearings began in October 2015 and concluded in December 2015. Further information on specific aspects was received during early-mid 2016.
4) Although PC15 has the eight different topics listed above, the hearings were arranged into ten topics - the extra two topics arose first, from splitting PC15A into general Rural Zone provisions and subdivision provisions, and second by concluding with submissions on specific rezoning requests and two particular submissions which crossed all the A-H topics.
5) Notwithstanding the breadth of the topics, there were a number of factors which strongly linked them and influenced the decision on the scope of PC15. These factors are summarised in the description of PC15 at the time of its notification1:
1.1.1 On 1 July 2012, the Council completed a boundary reorganisation process with the MDC. The Council is now required to promote a change to its District Plan to incorporate the area transferred to the city within its District Plan, in accordance with section 81 of the RMA. 1.1.2 As the majority of the BCA is currently zoned Rural, the plan change for the BCA has been amalgamated into the wider SDPR of the Rural Zone. 1.1.3 The BCA also includes the villages of Longburn and Bunnythorpe, and the Longburn industrial area. PPC15 includes new land use zones for Longburn and Bunnythorpe villages and identifies land suitable to be rezoned Industrial to meet the city’s long-term industrial growth needs. 1.1.4 Given the significant resource management issues associated with wind farm development and landscape management over the last decade, a separate specific topic area within the Rural Zone has been included within PPC15, (i.e, PPC15B). 1.1.5 Given the spatial extent of the BCA and the Rural Zone and the requirements of the One Plan, a separate specific topic area on Flood Hazards has been included within PPC15. 1.1.6 Given the national electricity grid largely affects land within the Rural Zone, the formal review of the Utilities section has been included within PPC15.
1 A number of abbreviations are used: BCA is Boundary Change Area, MDC is Manawatu District Council. SDPR is Sectional District Plan Review, and PPC is Proposed Plan Change
3 1878 1.1.7 Given the relationship between the airport and the Rural Zone, in particular the noise effects of aircraft operations, the review of the Airport Zone has been included within PPC15.
6) Prior to each of the hearings a number of reports (referred to as 'section 42A reports') from Council officers and consultants were prepared and publicly issued. These reports contain professional assessments of those officers and consultants on specific PC15 topics, and their assessments and recommendations on submissions and further submissions. At the end of each hearing (and, on occasion, after the hearing had finished) further evidence and recommendations on issues arising during the hearing was given by way of reply from Council representatives. An overall legal briefing report was also issued with the hearing agenda, and in some hearings this was supplemented by further advice from Council lawyers.
7) All of this information (and indeed all the documentary information received and considered by the hearing panels) has been, and remains, available on the Council website for the PC15 hearings.
8) Although this is a single decision on PC15, there is a different section dealing with each of the ten topics outlined above. However the decision begins and concludes with aspects which are common to all topics: the background, the legal and planning framework, and the further evaluation required by section 32AA of the Act.
2. The Commissioners and Delegations
9) A number of different commissioners were involved in the different hearings. This will be fully explained in the next section, but in brief:
a) PC15A-G was heard by a core hearing panel of: Chris Mitchell (Chair), Cr Susan Baty, Stuart Kinnear and Cr Tangi Utikere. Cr Rachel Bowen (PC15C), Cr Leonie Hapeta (PC15G and residual and rezoning requests), Cr Ross Linklater (PC15D, PC15E and PC15F) and Cr Annette Nixon (PC15A Rural Zone and Subdivision).
b) PC15H was heard by Chris Mitchell (Chair), Stuart Kinnear and Philip Milne.
10) All the Commissioners appointed to PC15 hearing panels are collectively delegated to make decisions only on their respective topics. Whilst all Commissioners have signed this decision, individuals have only participated in the decision making for those topics which they heard.
11) Because PC15H concerns the Airport Zone, and the Airport business is owned and managed by a Council controlled company, it was heard by 3 independent commissioners. The Commissioners on PC15H were Chris Mitchell, Stuart Kinnear and Philip Milne. Messrs Mitchell and Kinnear were also members of all other PC15 hearing panels, but Mr Milne has taken no taken no part in hearings or decision making on other topics.
12) All Commissioners involved in PC15A-G took part in site visits on 15-16 September 2015. Further site visits were undertaken in January 2016 as part of initial decision meetings.
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3. Plan Change 15A-H: general approach to decision making
13) It is appropriate, in this section of the decision to outline some of the general principles which guide the approach to decision making on proposed changes to the Plan and submissions and further submissions on those proposals. The specific statutory elements of these principles will be outlined in the next section of the decision ('Legal and Planning Framework'), but in this section the approach to evaluating information, opinions and ideas is outlined.
14) The starting point is that any plan change reflects the Council's view of how the District Plan should be amended to respond to changes in circumstances, issues of future demands and challenges, and lessons learned from experience.
15) The plan change hearing process is, applying a common analogy, very much the tip of an iceberg where the great bulk of preparatory and consultative work which led to specific proposals often lies largely unnoticed in the context of much narrower disagreements on detail. The process of planning for the future ideally brings together community expectations (grounded in the present) and aspirations (for the future), together with a range of expert or technical assessments as to specific measures which can work efficiently and effectively on a broad scale and achieve the statutory direction of sustainable management of the available resources.
16) It must also be emphasised that, at this level, planning is concerned with management provisions which will have broad application across an entire district or region, or large parts of it. While the Plan does recognise some specific areas with quite distinct requirements, it is not practically possible for planning on this scale to reflect differing individual needs and circumstances. Those more local or individual considerations can, and should be, included in the assessment of resource consent applications.
17) PC15A-H is therefore the outcome of a long and expensive process whose foundations are various social and (local government) management and funding strategies, expert assessments on current issues and best practice, and a framework of other legal and planning requirements.
18) It is important to make these points because it is a significant context in which many of the submissions will be assessed. In an evidence based assessment of proposals and submissions, any proposal - whether from the Council or a submitter - which is not supported by good evidence on the issues raised by this wider context cannot usually be accepted without diminishing the integrity and quality of the whole.
19) On this approach, submissions which requested (for example) different zoning, or changes to, or exemptions from particular provisions have generally not been accepted where they are not supported by adequate evidence.
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4. Legal and Planning Framework
20) This section is an outline of the framework of laws and policies which governs the process of hearing and decision-making on PPC15A-H. This framework is fundamentally the same for all the plan changes proposed as part of the sectional review and the following outline will be similar to that used in decisions on those earlier plan changes.
21) This framework has two major components: statutory and planning. The statutory framework is set out in the RMA and applies to all plan review and change proposals. The planning framework is a mix of policies, plans and other documents – some of which must always be considered in this context, and some which may be relevant only in particular topics or circumstances.
Statutory framework
22) In the following outline, all references to statutory provisions are those in the Resource Management Act 1991 unless another statute is expressly identified.
23) Under section 75 every district must have a district plan. Palmerston North City is a 'district', and has an operative district plan ('the Plan').
24) Under section 79 every district plan must be reviewed. To be more specific, a review is required of every district plan provision which has not been reviewed in the past 10 years. There are different ways of complying with this requirement but, whichever way is chosen, the Council needs to be mindful of its functional responsibility to achieve the 'integrated management' required by section 31(1). The Council decided in 2011 to undertake the review on a sectional basis - ie a topic based approach - which would enable the review of the whole Plan over a 5 year period. As noted above, PC15A-H is a significant part of that review and affects, in spatial terms, most of the City.
25) The statutory framework consists of a number of inter-related provisions, the key elements being the following:
a) Part 2: Section 5 sets and defines the purpose of the RMA, and sections 6- 8 contain a hierarchy of matters which must be specifically considered by decision makers in this context; b) Section 31 sets out the functions of the Council under RMA; c) Section 32 directs the Council to evaluate whether each of its objectives is the most appropriate way of achieving the purpose of the RMA, and then whether the policies and rules are the most appropriate way of achieving those objectives; d) Section 32AA specifies the circumstances where a further evaluation under s.32 is required; e) Sections 72-76 contain the provisions on the purpose of the Plan, Plan preparation and change, the matters to be considered by the Council, and the contents of the Plan; f) Schedule 1 Part 1 contains the detailed process under which new Plans and plan changes are prepared, notified for submissions and further submissions, heard and decided, and then formally adopted. g) Schedule 1 Part 3 contains provisions which apply where external documents are to be referred to and have legal effect in the Plan.
6 1881 26) All planning decisions under the RMA must collectively achieve the statutory purpose of sustainable management of the City’s natural and physical resources (as defined in section 5) and, in doing so, give effect to the requirements of sections 6 to 8. These provisions are collectively referred to as 'Part 2 RMA'.
27) Section 6 sets out matters of national importance which the Council must recognise and provide for in exercising its powers and functions. Section 7 sets out matters which the Council must have regard to in exercising its powers and functions. Section 8 requires the Council, when exercising functions and powers of the RMA, to take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).
28) In the context of the review of the topics in PC15A-H, many of provisions in Part 2 are particularly relevant. The following list serves simply as an identification of some of the areas where these provisions have been considered.
29) Section 5(2): the definition of sustainable management of natural and physical resources is a complex one which cannot be usefully abbreviated, yet is the cornerstone of many of the decisions which have to be made:
(2) In this Act, sustainable management means 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 well-being 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.
30) In section 6(f) 'the protection of outstanding natural features and landscapes from inappropriate subdivision, use, and development' as a matter of national importance to be 'recognised and provided for' is centrally important to the proposed outstanding landscapes in PC15B.
31) In relation to section 7, the obligation is 'to have particular regard' to the matters below where that are relevant to specific topics a) Section 7(b): the efficient use and development of natural and physical resources; b) Section 7(c): the maintenance and enhancement of amenity values; c) Section 7(f): the maintenance and enhancement of the quality of the environment; d) Section 7(g): any finite characteristics of natural and physical resources; e) Section 7(i) the effects of climate change; f) Section 7(j): the benefits to be derived from the use and development of renewable energy.
7 1882 32) Whilst section 7(j) is specifically relevant to provisions in PC15A concerning subdivision, and provisions in PC15B concerning windfarms, the other provisions of section 7 are relevant to all PC15 topics.
33) A number of aspects within the provisions listed above are defined in section 2 RMA (specifically, 'natural and physical resources', 'amenity values' and 'environment') and these definitions are also part of the statutory context. The word 'use' in section 9 is also defined.
34) We have considered Part 2 RMA as part of our overall evaluation of the component parts of PPC15A-H, and will return to it in the conclusion.
35) The Council has the functions set out in section 31. In terms of the functions created by section 31, we look specifically in this context at s.31(1)(a), (b) and (d):
(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: (d) the control of the emission of noise and the mitigation of the effects of noise:
36) We note that section 32 was amended in 2013 and that those amendments came into force in December 2013 (after the Sectional District Plan Review had commenced), and are therefore applicable to PPC15. Section 32AA requires a further evaluation of any changes to PPC15A-H made since the initial evaluation under s.32. This further evaluation is contained in the final section of this decision.
37) The further evaluation under s.32AA must consider in relation to any such changes: a) The extent to which each objective is the most appropriate way to achieve the purpose of the Act; b) Whether, having regard to their efficiency and effectiveness, the policies, rules or other methods are the most appropriate for achieving the relevant objectives (which include both any proposed objectives and any relevant existing objectives); c) The assessment under (b) above must identify anticipated benefits and costs including opportunities for economic growth and employment that may be provided or reduced and, if practicable, quantify those benefits and costs; d) 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.
8 1883 38) Sections 72 to 77D contain the provisions dealing with the purpose of District Plans, their preparation and change, the matters to be considered by the Council, the contents of the District Plan and the powers to make rules.
39) The District Plan exists (and must be created) within a context of other statutory plans and policies which may be relevant to the same resource management issues. Under section 74, these include any proposed Regional Policy Statement or Regional Plan, management plans and strategies prepared under other Acts, and any relevant entry on the New Zealand Heritage List/Rārangi Kōrero required by the Heritage New Zealand Pouhere Taonga Act 2014.
40) Section 75 sets out the requirements for the contents of District Plan: at the minimum, the District Plan must include the objectives for the district, the policies to implement the objectives, and the rules (if any) to implement the policies. The District plan must give effect to the policies listed in section 75(2) and these will be considered further in the next section on the policy framework.
41) Section 79 requires District Plans to be reviewed on a periodic basis. Council may either review its plan as a whole, or in sections - a 'sectional' review. The approach taken by the Council to the Palmerston North District Plan is outlined as follows in the section 32 report accompanying PC15A-H:
1.1.9 The Sectional District Plan Review breaks down the review of the District Plan into sections that will be reviewed over a five-year period. The current District Plan was prepared in the early 1990s, publicly notified in 1995 and became fully operative March 2005. The Council is required to commence a review of those provisions in the District Plan that have not been reviewed in the last 10 years, pursuant to section 79 of the RMA.
42) As noted above in para.26, with all decision-making in this context we are ultimately required to consider whether the proposed provisions which are subject to requests for change in submissions represent the best option for achieving the purpose of the RMA. The statutory purpose of sustainably managing the City's natural and physical resources (defined in s.5(2)) has to be applied in the PC15A-H context with due regard to the relevant provisions of Part 2.
43) Where a submission requests that we take a different approach to that proposed in PC15A-H, then we must look at that request in the context of the other parts of PC15A-H and the Operative Plan, other relevant plans and policies, and also the overarching provisions of Part 2 referred to above.
44) Schedule 1 Clause 10 states that we must give reasons for accepting or rejecting any submission, but also states that we are not required to address each submission individually and may instead group submissions according to the topic(s) or provision(s) to which they relate. We have generally followed the latter approach except where the particular submission raises a unique issue. The grouping of submissions by topic also means that a number of requests are not, and need not be, considered specifically (for example, a request to amend a provision which is to be deleted).
9 1884 Plan and Policy Framework
45) With that background, we turn now to outline the policy context for the content of PC15A-H and the submissions and further submissions on it.
46) As we noted above, sections 74 and 75 state the matters which must be considered by the Council in preparing or changing a Plan, and the contents of the Plan. Section 75 includes the requirement to either 'give effect to' or 'not be inconsistent with' certain other policies, plans and rules made under the RMA. Sections 43B and 44A in relation national environmental standards (which are rules applying nationwide) are also relevant. These other documents have significantly influenced a number of parts of PC15A-H.
47) The relevant policies which must be 'given effect to' are:
a) The National Policy Statement on Electricity Transmission ('NPSET') b) The National Policy Statement on Renewable Electricity Generation ('NPSREG') c) The Regional Policy Statement ('RPS' but also referred to as 'One Plan')
48) The relevant documents which PC15A-H must not be 'inconsistent with' are:
a) The Regional Plan in relation to any Regional Council function under section 30(1) ('One Plan') b) Any provision of the National Environmental Standards for Telecommunication Facilities ('NESTF') c) Any provision of the National Environmental Standards for Electricity Transmission Activities ('NESETA') d) Any provision of the National Environmental Standards for Assessing and Managing Contaminants in Soil to Protect Human Health ('NES Contaminated Soil)
49) The relevant documents which PC15A-H must 'have regard to' are:
a) Management plans and strategies prepared under other Acts b) Any relevant entry on the New Zealand Heritage List/ Rārangi Kōrero c) Consistency with the district plan of any adjoining territorial authority.
50) There is no dispute as to the content and application of the documents referred to in the preceding 3 paragraphs, and their respective significance and relevance has been well identified and canvassed in the preparatory documents (including the Section 32 report), the section 42A reports and many submissions. There is therefore no benefit in significantly increasing the length of this decision by attempting a detailed record of those points. A brief summary is sufficient:
a) NPSET requires provision to be made for 'facilitating the operation, maintenance and upgrade of the existing transmission network and the establishment of new transmission resources to meet the needs of present and future generations'. This is largely achieved through PC15G Utilities. b) NPSREG requires 3 objectives (in particular) to be achieved: protection of renewable electricity generation from reverse sensitivity effects; provisions for renewable electricity generation activities; and provisions for small and community scale renewable electricity generation activities. These are largely achieved through PC15B Windfarms and Landscapes.
10 1885 c) RPS contains specific policy directions on the above as well as matters such as infrastructure, landscapes, soils and flooding. d) NESTF addresses certain telecommunications facilities on roads and radiofrequency fields emitted from antennas. It contains rules which make a number facilities permitted activities within the legal road corridors. NESTF is currently under review and the draft new provisions have also been considered. e) NESETA: contains rules in relation to existing electricity transmission activities and structures with varying classifications (permitted, controlled and restricted discretionary). This NES does not apply to new transmission activities or to distribution lines.
51) PC15A-H raises some significant cross boundary issues. These include the management of windfarms under PC15B (some windfarms are in both the City and the Tararua District); and the management of flood risk and urban expansion near the Manawatu District boundary.
52) Section 2 of the Plan contains the City View Issues and Objectives which provide an overarching direction for the topic specific and zone provisions in other Sections of the Plan, including those subject to PC15A-H. Of the 27 City View Objectives, all but one (Objective 14 dealing with the City Centre) is relevant to some degree in this context.
53) Much of the Review of the Plan rests on a variety of 'building block' strategies adopted by the Council in recent years, often through a public consultative process. Many of these strategies concern the Council's spending and resourcing priorities. Their significance in this context varies, but can be considerable. For example, the decisions on the potential expansion of urban areas - through subdivision and development - are inextricably linked to decisions on the provision or upgrading of public infrastructure to support or enable that development. Those strategies which are particularly relevant to specific topics are referred to in the decisions on those topics.
54) In a policy context, PC15A-H represents a proposed implementation of a wide range of existing policies - national, regional and local - affecting the management of the City's natural and physical resources.
11 1886 5. Formal decision on PC15A-H
55) Appendix 1 to this decision shows the amendments made to PC15A-H by this decision. The requests made on submissions and further submissions on PC15A-H are accepted, accepted in part or rejected to the extent shown by those amendments in Appendix 1.
56) The reasons for this decision are set out in detail within the 10 topic decisions which now follow. Where, in relation to any request made in a submission, a specific reason is not given, that reason will be either in the submission itself (in the case of acceptance) or in the relevant section 42A report (in the case of acceptance in part or rejection). Though we have tried to be flexible in considering the intent of a submission, it has not always been possible to identify a relevant request on which a decision is required.
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6. Plan Change 15A Rural Zone
Background
57) The purpose of PC15A is to review the current planning provisions relating to the City's Rural Zones. In this review, the 'Rural Zones' encompass both the Rural Zone in the Palmerston North City District Plan and also the provisions of the Manawatu District Plan ('MDP') which currently apply to the Boundary Change Area ('BCA'). In zoning terms these BCA provisions include MDP Rural 1, Rural 2, Flood Channel 1 and Flood Channel 2 zones.
58) PC15A includes both land use and subdivision provisions, and the latter are considered separately in the next section of the decision. A number of the land use provisions in PC15A concern wind farms and these will be considered, with relevant submissions, in the part of this decision dealing with PC15B.
59) In spatial terms, the rural areas are the dominant land form within the City's district. These areas are used for agricultural and horticultural production, industry, energy generation and energy transmission corridors, river and flood management, and 'lifestyle' living. All of these activities use the natural and physical resources that make up the rural areas, and all must be managed to at least the extent necessary to enable them to continue and to develop in a sustainable way.
60) There is also continuing pressure on the resource of rural land to provide either for urban growth or smaller (and generally non-productive) 'lifestyle' blocks. The proposed subdivision provisions (mostly in Section 7) cover the approach to managing the difficult balance between providing for those opportunities on the one hand, and protecting a finite productive resource, managing infrastructure efficiently, and enhancing rural character and amenities on the other.
61) The review of the Operative provisions is thus a detailed and unavoidably complex exercise. The approach taken in the preparation of PC15A is comprehensively covered at pages 44-67 of the Section 32 Report issued in January 2015.
62) The major changes to land use objectives, policies and rules are contained in Section 9 Rural. The major changes to subdivision objectives, policies and rules are contained in Section 7. Both sets of changes are guided by the overarching City View Objectives in Section 2. The next part of this decision describes the key land use planning changes.
PC15A new land use provisions in brief
63) As noted above, PC15A is a change to both the operative Plan Section 9 but also to different MDC provisions which currently apply in the BCA. A comparison of the respective provisions (see Fig.5 Section 32A report) suggested that the MDC provisions were generally less restrictive than those in the City Plan. The effect of the changes in PC15A may thus vary from place to place.
64) Objectives: The objectives of the Rural Zone must be consistent with the City View Objectives and give effect to the relevant provisions of the One Plan RPS,
13 1888 and National Policy Statements on Renewable Energy and Electricity Transmission. Objectives 1-4 of Section remain the same but 5 new objectives are proposed relating to the Airport (5 and 6), outstanding natural features and landscapes (7) and renewable energy (8 and 9).
65) Policies: There are new or amended policies in Objective 1 (provision for rural residential subdivision and development), Objective 2 (adding versatile soils) and Objective 3 (avoiding adverse visual effect of renewable energy on Outstanding Natural features and Landscapes) as well new policies for new Objectives 5-9.
66) Rules:
1. There are no new permitted or controlled activity rules though some amendments are proposed to the existing rules. 2. New restricted discretionary activity rules are proposed for production forestry which does not comply with permitted activity performance standards and for domestic wind turbines. 3. New discretionary activity rules are proposed for oil and gas exploration activities, education and early childhood facilities, windfarms, new dwellings within 1.5km of a consented wind farm, and temporary military training activities which do not comply with permitted activity standards. 4. New non-complying activity rules are proposed for windfarms which do not comply with discretionary performance standards 5. New prohibited activity rule proposed for activities within the Runway End Protection Areas (REPA).
67) Proposed provisions for outstanding landscapes and windfarms are considered in the part of this decision dealing with PC15B.
68) The temporary military training provisions are considered in the part of this decision dealing with the NZ Defence Force submission.
69) The REPA rule has been considered in the part of the decision dealing with PC15H (and has been amended to be a discretionary activity rule).
Submissions
70) In this part we list the persons who made submissions on PC15A, again excluding those submissions which related to issues being considered in other parts of this decision - PC15A subdivisions, PC15B, rezoning requests, the NZDF or the NZFS submissions.
1. BJ & CJ Whitelock: this submission is generally supportive of the general Rural provisions, the only specific request being that an overarching introductory statement be inserted (wording suggested). 2. Radio NZ: requests relate to the recognition, operation and reverse sensitivity protection of its facility at Gillespies Line Kairanga. 3. Matthew Currie: requests reclassification of places of worship from non- complying to discretionary 4. Federated Farmers: requested additional text in the introductory Section1, and supportive of two specific rules in Section 9. 5. Mighty River Power: support for Objective1, requests relate primarily to PC15B.
14 1889 6. Transpower: this submission requests that specified Section 23 rules be imported into Section 9 as well. 7. Trustpower: the submission has a very large number of requests (40) mostly relating to PC15B. However a general request in relation to Rural Objective 3 is considered in this section of the decision. 8. Heritage Estates Ltd: most of this submission has been considered under the 'rezoning requests' section of this decision. However there is a specific request in relation Rural Policy 1.1. 9. Fonterra: requests include a definition of 'sensitive activities'; and a number of amendments in relation to reverse sensitivity effects 10. Pioneer City West: most of this submission has been considered under the 'rezoning requests' section of this decision. However there is a specific request in relation Rural Policy 1.1 11. Horizons: requests relate to removal or amendment of provisions which overlap and/or are inconsistent with One plan provisions 12. Horticulture NZ: requests a number of amendments including a definition of 'rural 'character', referring to 'Class 1 and 2 land' (rather than 'soils'), dwelling boundary separation distances and noise rules 13. Powerco: requests relate primarily to policy recognition of utilities. 14. KiwiRail Holdings: requests relate to protection of rail network from reverse sensitivity effects. 15. Higgins Aggregates: requests relate to recognition of importance of quarrying, reclassification of quarrying and protection from reverse sensitivity effects. 16. House Movers Section of NZ Heavy Haulage Assn Inc, Britton Housemovers Ltd and Central Housemovers Ltd ('House Movers'): requests involve amendments to make building relocation permitted or controlled. 17. Alison Mildon: requests relate mainly to PC15B, but submission stated that Rural Objectives 1-3 should remain. 18. NZ Transport Agency: requests relate to recognition of state highway network and protection from reverse sensitivity effects.
71) There were a number of further submissions. Further submissions are limited to support of or opposition to one or more submissions, and may not raise new issues - though some further submissions do give detailed reasons for the position taken. As in other parts of this decision these further submissions have not been separately assessed unless evidence was presented in support of them. The decision on the further submission simply follows the decision on the submission it relates to.
Hearing
72) PC15A was heard on 18 and 19 November 2015.
73) The Council was represented by Lucy Cooper, consultant planner, who was the author of the planning component of the section 42A report, David Murphy and Nigel Lloyd who prepared evidence on the Higgins and NZTA submissions. The following submitters were heard:
1. Mr Whitelock spoke to his submission. His submission also covered matters which will be considered below under 'Subdivision'.
2. Ms Alison Mildon spoke to her submission and further submission.
15 1890 3. Mrs Tina Ware spoke to the JP Ware submission which is considered under the part of this decision dealing with rezoning requests.
4. Mr Good spoke to his further submission opposing the JP Ware submission.
5. Mr Rowe spoke to his further submission opposing the JP Ware submission.
6. NZ Transport Agency was represented by Mr Cole O'Keefe.
7. Horizons was represented by Penelope Tucker.
8. Mr Parham spoke to his further submission in support of Matthew Currie's submission.
9. Heritage Estates Ltd and Pioneer City West Ltd were represented by Paul Thomas. Matters raised by these two submissions relate broadly to City west and to PCB and are considered in more detail under the 'Rezoning Requests' section of this decision.
10. Horticulture NZ was represented by Lynette Wharfe.
11. House Movers was represented by Rowan Ashton (counsel), Richard Coles (consultant planner) and Paul Britton (Manager Britton Housemovers Ltd).
74) We also received further material from Mighty River Power (Miles Rowe), Powerco (Mark Laurenson), Transpower (Sarah Shand) and NZFS (Claire Fell).
Assessment
75) For the purposes of this assessment the requests are considered in the following topic groups:
1. Objectives and Policies 2. Reverse sensitivity 3. Activities near streams 4. Quarries 5. Relocatable buildings 6. Specific provisions 7. Introductory provisions and text
Objectives and Policies
76) Several submissions request changes to the Objectives and Policies:
1. Radio NZ: this submission relates to Objectives 1 and 2 and their respective Policies. The request in relation to Objective 1 is considered below under 'reverse sensitivity'. The request in relation to Objective 2 is to insert a new policy which recognises the appropriate location of existing infrastructure and its valuable service.; and an addition to the explanatory text which again relates to reverse sensitivity and will be considered in that category.
16 1891 2. Heritage Estates Ltd and Pioneer City West Ltd: these submissions make the same request in relation to Policy 1.1, namely that specific reference be made to the City West land. These requests are best assessed in the full context of the submissions (primarily that a private plan change application is currently in progress) and accordingly they are considered under 'Rezoning requests' later in this decision.
3. Higgins: this submission seeks an amendment to Policy 2.1 to replace 'avoid, remedy or mitigate' with 'while minimising'. This will be considered below under 'Quarries'.
4. Trustpower: requests an amendment to Objective 3 to delete 'enhance' and substitute 'maintain', and an amendment to Objective 4 stating how the objective is to be achieved.
5. Fonterra: request a new objective and policies regarding the need to protect rural production activities from reverse sensitivity effects.
6. Horizons: requests amendment to or deletion of Policy 3.4 on the basis that it is outside the Council's functional responsibilities under s.31. This will be considered under 'Activities near streams'.
77) A number of further submissions support or oppose these submissions.
78) In relation to the Radio NZ request for a new policy under Objective 2, we agree with Ms Cooper (para. 4.45) that a set of policies is already in place under Section 23 Utilities. In our view the requested policy is only marginally relevant to the objective, and it would in any case be repetitive of the City wide policies of Section 23. We therefore see no need for a new policy and this request is rejected.
79) In relation to the Trustpower request on Objective 3, we again agree with Ms Cooper's assessment (para. 4.54). The language of section 7(f) is 'maintenance and enhancement' and we see no reason to depart from that statutory balance in Objective 3 even in the specific 'natural' aspect of the environment it is concerned with. The request is accepted in part.
80) We note also that the word 'natural' in Objective 3 has been recommended for removal. We are unable to make a decision to this effect as it has not been requested (even indirectly) through the submission process. Objectives are significant provisions in any Plan, and an amendment cannot be regarded as minor or inconsequential. This Objective remains unchanged from the operative Plan save for the amendment requested by Trustpower above. We think that the recommendation has some merit as 'character' has a broader context than its 'natural' aspect, and the policies reflect this. However it must be a matter for further consideration by the Council.
81) In relation to the Trustpower request on Objective 4, we note and agree with Ms Cooper's evaluation at para.4.71. We also regard the requested amendment as inappropriately limiting the deliberate generality of the Objective as proposed. This request is accordingly rejected.
82) In relation to Fonterra's request for a new objective and policies, we note Ms Cooper's recommendation to partially accept it by way of a new Policy 3.6 (which also addresses Horticulture NZ's request for a definition of rural
17 1892 character). We do not think that proposed Policy 3.6 (which has been rejected at para.134 below) covers the substance of the request, which is for an explicit objective and policies dealing with reverse sensitivity effects. As we note below in a more extensive assessment of the reverse sensitivity issue, we do not accept the high level of significance given to this aspect of 'effects' in many of the submissions. In our view the point is covered in a balanced way by Objectives 2 - 4 and subordinate policies. This request is therefore rejected.
Decision
83) The request by Radio NZ to insert a new policy under Objective 2 is rejected for the reasons given above.
84) The request by Trustpower to amend Objective 3 is accepted in part as shown in Appendix 1 for the reasons given above.
85) The request by Fonterra for a new Objective and policies is rejected for the reasons given above.
Reverse sensitivity
86) Requests based on reverse sensitivity have been made by Fonterra, Radio NZ, Horticulture NZ, Higgins, KiwiRail Holdings and New Zealand Transport Agency. These requests are primarily for separation distances between specified activities (industrial for example) and living activities. There is also a request from Fonterra to include an additional definition of 'sensitive activities'. In summary:
1. Fonterra requests a definition of sensitive activity, an amendment to Issue 10, a separation distance between any dwelling and the site boundary of at least 25m; a separation distance between any sensitive activity and any effluent pond or disposal field of at least 150m; and an additional assessment criterion in Rule 9.7.1.
2. Radio NZ request a separation distance of 700m between any residential building and its transmission facility (designation 99)
3. Higgins request a separation distance of 500m between any existing quarry and a new dwelling.
4. Horticulture NZ request a separation distance between any dwelling and the boundary of at least 15m.
5. KiwiRail and NZTA request provisions establishing separation distances (up to 100m) between their respective corridors and noise sensitive activities. The KiwiRail submission covers ground vibration as well as noise. NZTA requests an amendment to Issue 14 to include the state highway network.
87) Before assessing each of the requests we set out our general approach.
88) The concept of reverse sensitivity can be described as the adverse effect on a person undertaking a particular activity of complaints, usually from neighbours, about the effects of that activity on them. The effect of those complaints is to pressure the activity to change or relocate, and may affect its ability to expand.
18 1893 The concept originated from the expansion of residential development into rural areas where there were established rural or rural/industrial industries which were not compatible with expected levels of residential amenity, particularly in aspects such as noise and odour.
89) Reverse sensitivity is also a significant component of controls and proposed controls around potentially noisy activities such as airports and wind farms. However in those two examples there are not only also important health and amenity reasons for the controls, but the noisy activities are regarded as nationally or regionally important assets.
90) In our view the concept of reverse sensitivity remains an important consideration in the assessment of residential development or intensification into areas with established industries.
91) However we are not persuaded that the concept generally should be extended in the way proposed by the submissions. An important way of looking at the separation distances requested is as both a 'free' benefit to the operator of the activity, and also as a cost to the owner of the land affected by that activity. It may also be seen as a tacit admission that the activity may have significant adverse effects beyond the boundary of its site - which is again a cost to the owner of adjoining land, whose ability to use and develop their own land may be compromised. In these circumstances, creating the kinds of substantial separation distances sought may impose costs which are not fully understood, as well as masking some effects which ought not to occur.
92) Our other concern, noted consistently in other decisions through the District Plan Review process, is that issues of reverse sensitivity have been raised without any supporting evidence that there is indeed any 'sensitivity'. We do not regard the mere possibility that a requiring authority (for example) may receive occasional complaints about its operations as evidence of 'sensitivity' justifying extra controls on the use of private land. An important element of reverse sensitivity is not just the potential for conflict between activities, but the potential that this conflict will lead to the 'new' activity constraining or driving out the existing one.
93) Finally, it is incumbent in our view that anyone making such requests is able to identify the effects of implementing them. This is not the Council's responsibility, though where such requests are endorsed we would expect an understanding of this issue. At its most simple, the issue could be expressed this way: would the proposed separation distances either preclude or severely constrain the development of any land which could otherwise be developed? When this question was posed during the hearing, the Council's quick research of the point (which we appreciate) indicate that there might indeed be cases where the answer is 'yes'. We would add, by way of emphasis, that the activities sought to be constrained by the requests are otherwise permitted in the Rural Zone.
94) In relation to the Fonterra request on Issue 10, we agree with Ms Cooper that the proposed wording, which implicitly includes reverse sensitivity effects of conflicting activities, is a better formulation of the issue. The request is accepted.
95) In relation to the Fonterra and Horticulture NZ submissions, we think that the requested boundary separation distances are excessive. We have no
19 1894 evidence that the long standing operative separation distances are not appropriate, nor that the alternatives proposed would be an effective response to any perceived problems. The problem (particularly in the case of the Fonterra request) is compounded by lack of information on whether all sites can actually accommodate these separation distances. These requests are accordingly rejected.
96) For the same reasons we do not accept the request to add reverse sensitivity as a specific aspect of discretion in restricted discretionary activity Rule 9.7.1. As we do not accept the reverse sensitivity separation distances requested, the question of non-compliance does not need to be covered. This request is therefore rejected.
97) We do not see any benefit in the Fonterra request to define 'sensitive activity'. We agree with and adopt Ms Cooper's assessment at para.4.97. This request is accordingly rejected.
98) In relation to Radio NZ's request we largely agree with Ms Cooper's assessment at paras. 4.85 - 4.91. More importantly (as noted above) there was no sufficient evidence from Radio NZ as to 'sensitivity' (on its part) or effects on the neighbours, and nor was there any evidence that a separation distance of 700m was functionally appropriate, or even if there was any effect that might cause complaints. This request is accordingly rejected.
99) In relation to the Higgins request our views are as generally outlined above. We note Mr Lloyd's endorsement of the separation distance to manage potential noise annoyance. However we think that a more fundamental initial inquiry is whether noise, in such a situation, should, or could, be managed to at least some degree at source. This must be the effect of Section 16(1) RMA - reverse sensitivity should not be used as a method of permitting the indefinite continuation of land use activities which 'export' significant adverse effects to neighbours.
100) Mr Lloyd's point has greater sway in the subdivision context where a proposed intensification of noise sensitive activities should consider the effects on established neighbouring activities which may be incompatible without adequate separation. We think that the subdivision provisions allow such consideration to be addressed on a case by case basis.
101) For these reasons the Higgins request is rejected.
102) In relation to the KiwiRail and NZTA requests, we heard no supporting evidence of any actual sensitivity. In other words, we have no evidence - other than pure hypothesis - that there is indeed any effect to be managed. Mr O'Keefe was unable to identify any significant complaints to or pressure on NZTA. The Council appears to have no relevant information. Putting this in the context of significant resource management issues, we are not satisfied that the reverse sensitivity effects on the state highway network can be compared with the position on windfarms (see Issue 14). Quite apart from the potential costs to land owners which we will turn to, the requests do appear as a solution without a clear problem.
103) This would not itself necessarily disqualify the requests as potentially worthy additions to general amenity protection. Nor would the absence of any effective mitigation measures by the submitters themselves. However the
20 1895 costs of the kinds of setback or acoustic insulation requested are unquantified, as are the impact of such provisions on current and future land owners in the Rural Zone and on general resource use. Those costs are nevertheless potentially very high indeed and, as we noted above, in our view is the responsibility of those requesting or recommending such proposals to provide the range of balanced information necessary for decision making in this context. This has not been done.
104) The requests from KiwiRail and NZTA are accordingly rejected.
Decision
105) The requests listed above are all rejected for the reasons given.
Activities near streams
106) The Horizons submission requests deletion or amendment to the following provisions in Section 9 Rural:
1. Policy 3.4 2. Rule 9.5.2 (b) 3rd bullet point 3. Rule 9.7.4(d) 4. Rule 9.8.3(h)
107) In relation to the Horizons request on Policy 3.4, we acknowledge that where there is some overlap in functional responsibility between regional and district councils, then there may be a risk of inconsistent policy responses. The potential conflict is identified by Ms Tucker in her evidence, and it extends to proposed rules.
108) Objective 3 (with the addition of 'maintain' requested by Trustpower) clearly includes freshwater. Policy 3.4 (both as notified and with recommended changes) is, on the face of it, a valid implementation of Objective 3. However as Ms Tucker says, the One Plan deals with the same issue both at Policy level and by land use rules. That being so, in our view, PC15A should cover the same matters only if it is functionally necessary for it to do so, and then only in a way which gives effect to relevant RPS policies and is not inconsistent with regional rules.
109) Sections 30 and 31 contain a functional dichotomy in relation to freshwater bodies where, broadly, territorial authorities have responsibility for surface and the air space above it (which is 'land'), and regional councils have responsibility for beds and for the management of the water itself. For example, a number of the regional councils' functions in relation to the control of land uses are directly or indirectly related to water quality or quantity (s.30(c)(i)-(iiia)). An example of the application of the territorial authorities' functional responsibilities under s.31(1)(e) would be commercial activities on the water or on a structure such a wharf.
110) In this context, we agree with Ms Tucker that it is difficult to see Policy 3.4 as within s.31(1)(e). The 'instream values of spawning rivers and streams' relates instead primarily to Horizon's functions under s.30(c). On that basis Policy 3.4 is not necessary. Absence of necessity does not mean that it is an invalid
21 1896 policy, but as we noted above there is a risk of inconsistency at both policy and rule level, and this must strongly count against it.
111) Policy 3.4 is therefore deleted. In consequence, the rule provisions (including explanatory text) listed above are also deleted. It is appropriate to insert a note under Rule 9.5.2 as shown in Appendix 1 referencing the possibility of relevant rules under the Regional Plan. The requested rule changes are consequential.
112) Decision: the requests from Horizons are accepted. A new note is to be included under Rule 9.5.2 as shown in Appendix 1.
Quarries
113) The Higgins submission has made the following requests:
a) Introduction: a further sentence on aggregate extraction which will be considered below under 'Introductory text'. b) Policy 2.1: an amendment to specifically enable quarrying c) Rule 9.5.5(b)(i): add a separation distance specific to quarrying d) Quarrying activity: reclassify as restricted discretionary e) Assessment criterion on productive land: delete
114) We considered the request for a separation distance as a reverse sensitivity issue in a previous section above.
115) Higgins was not represented at the PC15A hearing and we did not receive any additional material from it in support of this aspect of its submission.
116) Policy 2.1: we think that the request involves a significant change to the meaning of the policy. The policy is directed specifically at land of high productive capability and recognises its value as a physical resource. The reference to quarrying (which the submission accepts is incompatible with productive capability) would make the policy meaningless, and would not be consistent with the Objective or with City View Objective 6. The short answer is that a proposal to quarry land of high productive capability would (and should) face an adverse policy direction. Again we agree with and adopt Ms Cooper's assessment of the request at paras. 4.48 - 4.51. Accordingly this request is rejected.
117) For the same reasons, we reject the request to delete assessment criterion (i) in Rule 9.8.3.
118) In relation to the request to reclassify quarrying as a restricted discretionary activity, we are not persuaded that the potential effects of any quarrying operation could be adequately managed by a restricted and exclusive set of reference points. Without diminishing the importance of this industry to the economy there are, in our view, simply too many potentially significant effects which might vary from one location to another, and from one type of quarrying to another, to make restricted discretionary classification an effective method of management. Again we agree with and adopt Ms Cooper's assessment at paras. 4.131 - 4.132. Accordingly this request is rejected.
Decision
119) For the reasons given above the requests are rejected.
22 1897
Relocated buildings
120) The House Movers' submission contains a number of requests both general and highly specific on the topic of building relocation. We will not list each request but rather, for the purposes of this assessment, treat them as a single request which we record as follows:
The Plan should classify the relocation of buildings as either permitted or controlled, subject (in either case) to performance standards and with a default to restricted discretionary status of any standard is not met. In this request 'relocation' includes demolition, re-siting and relocation of any building; and 'building' means a building which has been designed, built and used as a dwelling.
121) The reason we have compressed and reworded the request is twofold. First it reflects the evidence and legal submissions advanced by House Movers, and second, read literally, many of the specific requests in the submission are beyond the scope of this Plan Change.
122) Another complication is that the submission contains text which may have been used in submissions on other district plans because it appears somewhat generic in nature. There are, so far as we can tell, only 4 provisions in the Rural Zone which may be affected by the request:
1. Rule 9.5.5 in which dwellings and accessory buildings are generally permitted activities subject to performance standards; 2. Rule 9.6.2 in which relocated dwellings are controlled activities subject to performance standards; 3. Rule 9.7.1 in which dwellings and accessory buildings not complying with specified performance standards are restricted discretionary activities; 4. Rule 9.9.1 in which any dwelling or accessory building not provided for above is a non-complying activity.
123) There are, of course, other Rural rules relating to buildings in specific areas or circumstances but it is presently unnecessary to consider these.
124) In essence then, the difference between the Council and House Movers is whether relocated dwellings should be controlled activities (as proposed) or permitted activities (as requested). If the request is accepted, Rule 9.6.2 would be simply deleted. A dwelling permitted by Rule 9.5.5 could be built in situ or relocated from somewhere else either on the same site or beyond. In either case it would have to comply with all relevant permitted activity standards.
125) The reason for the Council's controlled activity rule is to consider external appearance and:
To ensure that the external appearance and structural soundness of the building will not have adverse environmental effects on the existing amenity values and ambience of the surrounding area.
126) Bluntly, there is a concern that some relocated buildings are dilapidated eyesores that may be left that way indefinitely, thereby degrading the visual amenity of the area.
23 1898 127) We note here that Rule 9.6.2 applies only to relocated dwellings. We cannot see any restriction on the relocation of accessory buildings. And that may apply to buildings which were once dwellings but are no longer fit for that purpose but will be used as accessories.
128) Where the intent of the relocation of a dwelling, either from within or outside the site, is to continue that use, then the Building Act applies to the structural integrity and safety of the building for that purpose. The same applies to most other buildings. If a structurally derelict building is moved on to a site, then the Council has power to require it to be brought up to the relevant standard.
129) This leaves the amenity concern which is a resource management issue. For practical purposes however it seems closely related to the issue of structural soundness. There are no design or character controls on dwellings in the Rural Zone.
130) The issue of timing (the time between relocation and completion) is addressed in the performance standards proposed in para.15 of the House Movers submission. Proposed standards (d) and (e) overlap to a degree and, to that extent are contradictory. However we understand that the industry proposal is to place any relocated building on permanent foundations within 2 months of relocation and complete required exterior work within 12 months of relocation.
131) On balance, we do not accept that there is any real resource management benefit in controlled activity status, and there are undoubtedly costs - these being the costs of delay and/or uncertainty before any relocation can be made, rather than the application fee.
132) Rule 9.6.2 will be deleted and Rule 9.5.5 will be amended to include performance standards in relation to relocated dwellings and accessory buildings. These are shown in Appendix 1 and are based on the House Movers proposal but with a substitution of 6 months for the completion of exterior work.
133) If a proposed or actual relocation will not, or does not, comply with the specific relocation performance standards inserted in Rule 9.5.5 then it will be classified as a restricted discretionary activity under a new Rule (based on Rule 9.6.2) shown in Appendix 1.
Decision
134) The request from House Movers is accepted in part to the extent, and for the reasons, given above. For the avoidance of doubt all other requests are rejected for the same reasons.
Other specific provisions
135) Submissions on other provisions were as follows.
136) Higgins: has requested an amendment to the definition of 'earthworks' to exclude quarrying. In our view this exclusion is effectively achieved by Rule 6.3.6.2(iii) and the amendment requested is unnecessary. The request is accordingly rejected.
24 1899 137) Horticulture NZ requested a definition of 'rural character' (provided in the submission). The recommendation in the section 42A report (paras. 4.10 - 4.14) was to reject the request. The report went on to evaluate other submissions and further submissions which, in our view, deal with issues of conflict between activities and/or reverse sensitivity and recommended a new Policy 3.6. Ms Wharfe (for Hort NZ) supported that recommendation. The proposed Policy 3.6 does provide a partial definition of rural character. We do not accept this recommendation: a definition of the character of the rural environment (which is the subject of Objective 3) must necessarily be so broad that it is difficult to see how it assists with the implementation of the Objective. The request is accordingly rejected.
138) Horticulture NZ also requested an amendment to Rule 6.2.6.2 to expressly exclude aircraft undertaking agricultural activities. In our view this exclusion is achieved by the current rule, where aircraft noise during or immediately before or after flight is not subject to general noise rules (the submission does not request an extension of this ambit). Accordingly this request is rejected.
139) Radio NZ: requests that use of its generator should be specifically permitted under R.9.5.1. We think that the requested provision is unnecessary as the activity is allowed by the Radio NZ designation. As we have noted elsewhere in this decision on the KiwiRail requests, there are potential and avoidable problems if the same activity is both permitted by a rule (and perhaps subject to performance standards) and also permitted by a designation. The request is accordingly rejected.
140) Mr Whitelock: the submission queries whether 'intensive farming' should be defined, and although it is not clear whether this was a request, for the avoidance of doubt we confirm that 'intensive farming' is defined in Section 4.
141) Mr Currie and Mr Parham (FS): request that churches should be discretionary not non-complying. This request is accepted for the reasons given in the submissions and in the section 42A report at paragraphs 4.124 - 4.128, to the extent shown in Appendix 1 Rule 9.8.4.
142) PowerCo: request reference to NZECP34:2001 and relevant regulations. Although the section 42A report recommends acceptance of this request, we are concerned that at the lack of any conceptual distinction between the references sought by PowerCo and any other laws and standards applying to development or subdivision. The Plan is already heavily encumbered with such 'Notes' and we have no evidence that they achieve any significant benefit other than as 'advertising' for other legislation or other consent requirements. They are not statutory requirements for the Plan, nor do they directly assist with any resource management purpose. We do not agree that the use of advisory notes 'gives effect', in any legal sense, to the One Plan. The other issue is that the extraneous documents referred in these notes can, and will be, changed without any reference to the Plan - with the result that, over time, the notes become inaccurate and/or require correction through the Schedule 1 process. For these reasons we reject the request (but note that a similar request is accepted in relation to PC15G and Section 23).
Introductory text
143) As noted elsewhere in this decision, we do not consider the introductory text at the start of each zone chapter as having any legal significance. Its primary
25 1900 purpose is generally descriptive of the land and zone(s) covered by the section. We do not regard its purpose as including either specific references to activities or highlighting the importance of specific activities - these are matters to be addressed in policies where appropriate. Similarly the primary purpose of the General Introduction in Section 1 is to provide an overall context for the Plan.
144) Submissions in relation to the Introduction passages were received from:
1. Federated Farmers: this submission relates to Section 1 and requests an addition to 1.1.3 to recognise primary production as a driver of economic growth and to 1.3.2 to recognise the Rural Residential Land Use Strategy ('RRLUS') as one of the Plan's guiding strategies. 2. Mr Whitelock: this submission appears generally supportive of the Section 9 Introduction but requests a more specific recognition of responsibilities as shown in proposed text. 3. Higgins: request amendment to Section 9 Introduction 4. Fonterra: requests amendment to cover reverse sensitivity effects.
145) We agree with and adopt Ms Cooper's assessment of the Federated Farmers requests at paras. 4.2 - .4.7. The requests are accepted and the passages in Section1.1 are amended as shown in Appendix 1.
146) We agree with the sentiment of the wording proposed in the Whitelock submission, but also agree with Ms Cooper that it is essentially a re-statement of the obligations imposed by the RMA itself. We do not agree that any amendment to Sections 7 and/or 9 Introduction is necessary. The request (if it was one) is accordingly rejected.
147) In relation to the Higgins submission, the specific reference requested by the submission would be out of context. We agree with Ms Cooper's assessment at paras. 4.25 - 4.26. The request is accordingly rejected.
148) In relation to the Fonterra request relating to the management of reverse sensitivity effects, we regard this as a matter of general emphasis which is unnecessary in an Introduction. We do not agree with the recommendation to accept the request. The request is rejected.
Decision
149) The request from Federated Farmers is accepted, and the requests from Whitelock, Higgins and Fonterra are rejected for the reasons given above.
26 1901
7. PC15A Rural Subdivision
Background
150) The rural subdivision provisions of the District Plan have remained largely unchanged since the District Plan was made operative in December 2000. In addition, the areas of Manawatu District Council (MDC) that have been included within Palmerston North City (‘the BCA’) have their own subdivision provisions that need to be rationalised for consistency over the total rural area of the City.
151) In broad terms, the subdivision provisions proposed by PC15A seek to promote a more sustainable approach to rural subdivision and development with a strong focus on the productive capability of the elite soils in the Rural Zone. PC15A has been informed by the Council’s strategic direction, in particular the Rural Residential Land Use Strategy (RRLUS) and it builds on the existing planning framework and methods. For example, the rural-residential subdivision overlay (‘the overlay’) is retained, albeit in a substantially reduced manner due to the emergence of a number of new development constraints such as wind farms (reverse sensitivity) and a greater understanding of development constraints presented by the rural road network and potential flood hazards.
152) Accordingly, PC15A proposes new and amended resource management objectives and policies for rural subdivision, amends the rules and minimum lot sizes for rural subdivisions and reduces the extent of the overlay. PC15A also applies a new suite of rural subdivision provisions to the BCA.
Provisions in Brief
153) The section 42A Report for the hearing, prepared by Mr Murphy, records the following summary of the proposed subdivision provisions:
1.10 PPC15A proposes a series or amended and new Issues, objectives and policies within the subdivision section of the Plan which seek to:
a) Retain the productive capability of rural land. b) Protect Class 1 and Class 2 versatile soils for use as production land. c) Enable small landholdings for intensive horticultural activities in the Flood Protection Zone. d) Provide for limited rural residential development on land which contains less versatile soils. e) Maintain the low density development pattern in the Moonshine Valley Rural Residential Area. f) Provide for efficient and effective on-site services and regular maintenance. g) Avoid connections to the City’s reticulated infrastructure network and consequential impacts on network efficiency and unplanned extensions and / or upgraded of the infrastructure network, including the road network. h) Preserve or enhance rural character
1.11 The minimum lot area for rural subdivision is increased from 4ha to 20ha within rule 7.16.1.2(b)(i). This change assists with achieving the
27 1902 proposed rural zone objectives and policies and the RRLUS.
1.12 Subdivision to create a small rural lot for a surplus dwelling is proposed within rule 7.16.1 .2(b)(ii). This rule recognises that as farms are amalgamated there can be a need to separate surplus dwellings.
1.13 Rural residential subdivision is categorised as a Restricted Discretionary Activity with an associated non-notification clause within rule 7.16.2.1. The current 1 ha minimum lot area within the rural- residential overlay is retained within rule 7.16.2.1(b)(m). The minimum lot size of 1ha is a conservative planning approach which generally enables rural-residential subdivision to occur on a self-serviced basis whilst recognising the risks and constraints associated with the land where rural-residential subdivision is provided for.
1.14 The extent of the rural-residential subdivision overlay has been reduced, as shown on the planning maps. While the reduction assists with maintaining the overall productive capability of the Rural Zone, this change is also driven by the need to manage reverse sensitivity effects on consented wind-farms and the transportation effects, costs and equity issues associated with further rural-residential subdivision on ageing rural roads where no public funds are allocated for upgrades.
1.15 ln the Aokautere Rural Residential Area, the minimum lot area is increased from 3,500 m2 to 5,000 m2 within rule 7.16.2.1(b)(i). This recognises the minimum lot area requirements for on-site domestic wastewater within the One Plan whilst also recognising the historical identification of this area as a desirable location for higher density rural-residential subdivision. The bulk of the Aokautere Rural- Residential Area is already developed.
1.16 New subdivision policy 3.6 is introduced for the Moonshine Valley Rural Residential Area to reinforce the current minimum lot area of 1.5 ha. This addition recognises the strong and consistent message from this community over a number of years to protect the current amenity values of Moonshine Valley.
1.17 New provisions for on-site wastewater treatment systems for rural- residential subdivision are proposed within rule 7.16.2.1(c). The new performance standard seeks to ensure the constraints of individual sites are considered at the earliest stage of development to ensure all new rural-residential subdivision is self-sufficient which supports the efficient and effective provision of on-site domestic wastewater. It has also has a secondary benefit of avoiding unplanned connections to the City’s reticulated infrastructure network in the future.
1.18 Small lot subdivision for horticultural activities (under 4 ha) is proposed for the Flood Protection Zone within rule 7.15.2.1. Because there are strong land-use rules which restrict the construction of new dwellings within the Flood Protection Zone, the Council can be confident that any subdivision of land within the Flood Protection Zone would be for legitimate production activities as opposed to rural-residential purposes. The Flood Protection Zone is therefore a land-bank for small- lot or entry level production activities.
1.19 Other more minor amendments are proposed to Sections 1 (General introduction), 4 (Definitions), 5 (Information Requirements) and 7 (Subdivision) of the District Plan.
28 1903
Submissions
154) The Council received 54 submissions and 14 further submissions related to the proposed rural subdivision provisions. These submitters are listed and their issues summarised in Tables 1, 2 and 3 in part 2 of the section 42A report. Table 1 lists submissions related to the 20 ha minimum lot size and provision for small lot subdivision. Table 2 lists submissions seeking additions to the overlay and Table 3 list submissions of a site-specific nature.
Hearing
155) PC15A (rural subdivision provisions) was heard on 25, 26 and 27 November 2015.
156) The Council was represented by:
1. John Maassen Legal Counsel, 2. David Murphy City Planning Manager, 3. Jeremy Neild Agricultural consultant, 4. Shamubeel Eaqub Economic Consultant, 5. Craig Ross Soil Scientist, 6. John Hudson Landscape Architect, 7. Nigel Lloyd Acoustic Consultant, 8. Rob Green Consultant Engineer 9. Glen Connelly Traffic Engineer.
157) Each of the technical witnesses spoke to the relevant section of the Section 42A report and addressed various points in reply after the submitters had spoken. We had of course read and considered all the other components of the Section 42A report. We also considered the overall legal report on PC15 and the particular part of that report relating to PC15A.
158) The following submitters attended the hearing or provided written material for our consideration. Whilst we have listed those who attended the hearing and/or sent in material for us to consider only, we confirm that we have considered all submissions.
Submitters in Attendance or Represented at the Hearing
David C Parham Mr Parham presented a brief submission opposing the indiscriminate nature of the overlay.
Paul Wycherley Mr Wycherley was represented by Ms Johnson and presented a detailed case for zoning the land at Napier Road, Ashhurst to allow rural residential development.
Matthew Currie Mr Currie generally supported the proposed 20ha minimum area for subdivisions of productive land but sought a reduced minimum area of 0.5ha for rural residential and surplus dwellings subdivision.
29 1904 Bruce Wilson Mr Wilson supported the proposals for the protection of the productive capacity of versatile soils and sought clarification of wording regarding water collection and storage for rural subdivisions.
Ashley Farms Ltd Legal submissions were presented by Lara Bloomfield and Lindsay Ashley presented a statement of evidence. Mr Ashley is opposed to the 20ha minimum area and sought the retention of the 4ha minimum area (or other relaxation of the 20ha minimum) to give him more flexibility and choice in the future utilisation of his land.
Alison M Mildon Alison Mildon spoke to her submission which supported the proposed protection to be given to class 1 and class 2 productive soils.
Anne J Milne (Judy) Judy Milne spoke in support of the Council’s proposals for rural subdivision.
Sandra K Hey Sandra Hey spoke in support of her submission that the land on Pohangina Road from North Street to Davis Road be rezoned to allow for rural residential subdivision.
Jeremy J Lind Jeremy Lind presented a submission in support of his opposition to the 20ha minimum area in respect of his land in Stoney Creek Road and his request for its inclusion in the overlay.
Heritage Estates Ltd/ Pioneer City West Ltd Lisa Poynton, planner, represented both these submitters and presented a statement of evidence in support of submitted amendments to the policies that are designed to protect the status of the City West area as the preferred area for medium term expansion of the City under the Residential Growth Strategy.
Starter Plants Ltd Eddie Welsh, co-director of the submitter company, presented a statement that supported the company’s submission to extend the overlay to the properties at 126, 128 and 130 Turitea Road.
New Zealand Windfarms Ltd Vicki Morrison-Shaw, Legal Counsel for the submitter, presented legal submissions and Miklin Halstead, Acoustic Consultant, presented a statement of evidence in support of the proposed reduction of the overlay and the prevention of conflicts including reverse sensitivity effects with existing or consented windfarms.
30 1905 Kevin O’Connor & Assoc. Holly Jenkins, planner, presented a statement of evidence that supported the submitter’s requests that the minimum area for surplus farm dwellings be reduced from 1ha and that subdivisions of productive land resulting in lots less than 20ha be dealt with as discretionary activities.
Stu Waters Kevin Judd, registered professional surveyor, presented a statement of evidence in support of the submitter’s request that the whole of the submitter’s land (some 91 hectares) at Turitea and Harts Road should be included in the overlay. As proposed by PC15A only the 43 hectares with frontage to Turitea Road is included.
John Stephenson Mr Stephenson presented a submission that his property at Hendersons Line and Henaghans Road be included in the overlay.
John & Kathy Love John Love presented a submission that supported and explained their submission that PC15A be rejected. In explaining this overriding submission he commented on the inadequacies of the section 32 report as a basis for decision making and set out in some detail the circumstances that should pertain if the overlay was to remain, be reduced or be enlarged. Mr Love also submitted that the Restricted Access Road system should be abolished or the conditions under which it could be maintained should be set out.
Brian Green Properties Paul Thomas, consultant planner, presented a Limited Statement of evidence that outlined the associated submission on Plan Change 15H relating to airport noise contours affecting the land owned by the company on the corner of Kelvin Grove Road and Stoney Creek Road. Mr Thomas concluded that the most of the land in question is suitable for inclusion in the overlay. The Council subsequently received a letter from Paul Thomas dated 7 December 2015 on behalf of Brian Green Properties Limited withdrawing the part of the submission that related to the Kelvin Grove land referred to above. The airport noise contour affecting the land are dealt with in Part 14 of this decision.
Submitters who provided written statements but did not attend the hearing
Horizons Regional Council Ashleigh Gulliver on behalf of Horizons stated that Horizons agreed with the recommendation of the City Planning Manager to accept the
31 1906 amendments requested and asked that the Panel accepts his recommendation.
Mighty River Power Miles Rowe on behalf of Mighty River Power provided a statement that endorsed the 20ha minimum subdivision area and the spatial extent of the overlay as proposed by PC15A and that these aspects should not be altered without considering the consequences of doing so, including the potential for adverse reverse sensitivity effects on windfarms.
Powerco Limited Mark Laurenson on behalf of Powerco Limited provided a written statement that the section 42A report should be adopted as it relates to PC15A, subject to some amendments to advice notes as sought by the submitter.
Section 32 Evaluation
159) During the course of the hearing we questioned whether the evaluation of the proposed subdivision provisions, particularly the minimum lot size, has been done in accordance with s.32. The problem was not so much a lack of information, nor perhaps even a lack of actual evaluation. The difficulty as we saw it was the absence of a record of (or report on) that evaluation. In conceptual terms, what this means is that the critical thinking and analysis which led the Council to adopt these particular options advanced in PC15A was absent.
160) The hearing of PC15A subdivision provisions was adjourned on Friday 27 November 2015 following the Council's reply. During the Council's reply it was agreed that a supplementary evaluation of the proposed subdivision provisions under section 32 would be prepared by Council Officers to assist us in making our decision on PC15A. That supplementary evaluation, contained in a memorandum from David Murphy, was received by us on 18 December 2015.
161) By way of a Minute dated 28 January 2016 we required that every person who made a submission on the subdivision provisions should have an adequate opportunity to consider the material and make comments on it. The Council should then have an opportunity to reply to any comments received. This instruction was facilitated by a requirement that the Commissioners’ Minute and the supplementary evaluation be posted on the Council’s website and all submitters advised and given the opportunity to provide comments in writing.
162) As a result of this notification written comments were received from the submitters named below. While many of the comments received were a restatement of the original submissions, the key points that related to the supplementary evaluation are summarised as follows:
Federated Farmers Farming landowners need flexibility in subdivision areas that are enabling and allow long term choices. The 20ha minimum area will result in ‘de facto’ lifestyle blocks and lead to poor livestock management by people who are not skilled farmers.
32 1907 Subdivision around existing dwellings is supported.
Judith Milne Concurs with David Murphy’s conclusions.
Alison Mildon Concurs with David Murphy’s conclusions.
John Stephenson Supports 20ha and 1ha in their relative circumstances but wants rural residential subdivision for land near the urban fringe.
Kevin O’Connor and Associates Supports discretionary activity status for lots Ltd between 5000m2 and 1ha and submits that the same provision should be available for lots around existing farm houses.
NZ Windfarms Limited Ltd Supports the supplementary analysis subject to all wind farms being treated alike in respect of reverse sensitivity setbacks.
Paul Wycherley Considers that the supplementary analysis identifies less housing choice which is not enabling in terms of community wellbeing. There are negative impacts on his property from the grouping of Class 3 soils with Class 1 and Class 2 soils. Does not agree that Class 1 and 2 soils are a scarce resource.
Pioneer City West Limited The supplementary evaluation is inadequate and Heritage Estates (2000) Ltd and cannot be relied on as a basis of decision making. It fails to explore options that are set out in submissions and expert evidence and its cost benefit analysis is too simplistic given the importance of the proposed changes.
163) Mr Murphy subsequently provided a brief response in which he recommended a number of amendments to Policy 3.2 which would increase the scope for subdivisions with lots less than 20ha to be considered as non-complying activities. Amendments to 3.2 (a) (i) and (ii) lower the productivity and capitalisation tests for exceptions to the 20ha minimum area; and a new test 3.2 (b) provides for the intensification of an existing rural residential area outside the nominated areas.
164) The text of the recommended amendments is as follows:
3.2 To avoid the subdivision of rural land into allotments of less than 20 hectares (excluding subdivisions for rural-residential purposes in areas identified for that purpose on the planning maps, and subdivisions to create an allotment for an existing surplus dwelling), unless it is demonstrated that:
(a) ………………………
(i) ……………………….
33 1908 (ii)……………………….
(iii)……………………..
(iv) the land and buildings have greater retain the potential for the production of primary products, forestry or crops, as a result of the proposed subdivision;
(v) the subdivision and subsequent development avoids minimises the over capitalisation of rural land associated with the construction of future dwellings and buildings used for a non-rural purpose, and maintains the sustainability of the rural land resource;
(vi)……………………….
(vii)……………………..
(viii)………………………
(b) ……………………………
(c) The subdivision provides for the intensification of an existing rural-residential area located outside of the areas identified for that purpose on the planning maps and the subdivision is not inconsistent with the matters detailed in policy 3.5 (a) to (n).
165) With the receipt of Mr Murphy's response on 2 March 2016 we can define a point in process where the section 32 evaluation is complete and the deficiencies (real or perceived) have been dealt with. We need to recognise of course that the evaluation is not totally ‘pre-notification’ as required by section 32. Also, as the comments from Lisa Poynton on behalf of Pioneer City West Limited and Heritage Estates (2000) Ltd point out, Mr Murphy’s supplementary analysis is based, in part, on assumptions that we will accept certain amendments that have been recommended by him. In fact, it is our task to decide which alterations, if any, should be made and then under section 32AA carry out a further evaluation of any changes that we make to PPC15 since it was notified.
Assessment
166) As with other parts of PC15, we have not addressed submissions (or aspects of submissions) which simply express general support. Instead, our assessment relates to requests for changes to the content of PC15A. Mr Murphy assessed the issues raised by submitters under four headings:
1. The 20ha minimum lot size 2. Provision for small lot rural residential subdivisions 3. Additions to the rural residential overlay 4. Provision specific submissions
167) It is convenient that, in general, we use similar broad headings in our assessment of submissions.
34 1909 Summary Analysis
168) Before we assess submissions, however, we record our summary analysis of just what it is that the Council has set out to achieve in PC15A and why. We have done this with due regard to the various statements of evidence given by Council experts, the assessments of Mr Murphy in the section 42A report and the various technical reports that underpin the Council’s proposals.
169) Through PC15A the Council is endeavouring to promote a more sustainable approach to rural subdivision and development. That aim is of course what is required by section 5 of the RMA. Although that legislative imperative is unchanged since the District Plan was made operative, the Council now has significantly more knowledge and experience of sustainable rural practices, of how well the current proposals measure up, and the changes that are required to remedy deficiencies and increase sustainability.
170) Also a greater direction in key areas of sustainable management is given by the One Plan RPS than was the case when the District Plan was made operative. Now a district plan must give effect to the superior provisions of the One Plan RPS. In terms of rural subdivision and development these directives include One Plan Policy 3.5 which requires the Council in providing for urban growth and controlling rural residential subdivision (“lifestyle blocks”), to pay particular attention to the benefits of the retention of Class 1 and 2 versatile soils for use as production land in the assessment of how best to achieve sustainable management.
171) The thrust of the Council’s argument in support of a higher minimum lot area for subdivisions of land containing Class 1 and Class 2 soils is that the current 4 ha minimum is too low, is an historical accident, and leads more towards the establishment and proliferation of rural residential land uses than production uses. The technical reports refer to inappropriate fragmentation of the higher classes of rural land and conclude that a ‘business as usual’ approach to rural subdivision will fail to protect the productive land resource over the longer term. In particular the Rural Land Use and Productivity Position Paper says:
Subdivision Policy and land use regulation needs to better reflect new business and land requirements and align with Government’s Primary Sector export growth objectives. It is important to maintain options for future generations to use, develop or protect rural land/soil resources.
172) And as Mr Murphy says in his evidence:
PPC15A and the supporting technical reports and evidence are based on the proposition that the smaller a rural lot becomes following subdivision the less likely it is to be used for productive purposes, or conversely the larger a rural lot becomes following subdivision the more likely it is to be used for productive purposes. Put simply it is financially harder to do nothing with a larger rural lot, particularly a rural lot over 20ha.
173) The economic evidence of Mr Eaqub is that PC15A will address some of the inefficiencies in the market and more high quality land is likely to remain in productive use without detriment to the housing supply.
174) The package of provisions for production land enables small holdings (2ha) for intensive horticultural activities in the Flood Protection Zone where the majority
35 1910 of the high class soils are located. In addition, some variety in lot size is achieved by enabling 1ha minimum lots around surplus farm houses.
175) The changes proposed for rural residential subdivision are well documented and explained in the technical reports and evidence presented at the hearing. Essentially they will, if adopted, result in a significant reduction in the amount of land within the overlay which enables subdivision to a minimum lot area of 1ha. This will assist with maintaining the overall productive capacity of the rural area by avoiding unnecessary fragmentation of land, particularly the hill country.
176) The reduced extent of the overlay also results from a landscape analysis which determined that the Valley and Terrace and Plains landscape types are more suitable locations for rural residential development than those of the River and Flat, Hill Slope and Upper Catchment landscape types. The reduction in the overlay is also justified in PC15A by the need to manage reverse sensitivity effects on consented windfarms, and to manage transportation effects, including the cost of upgrading and maintaining sub-standard roads. The existing low density development in the Moonshine Valley is maintained and at Aokautere an increase in minimum lot size is proposed to meet the One Plan requirement of 5000m2 minimum area for on-site waste water disposal.
177) A third broad category of rural subdivision was outlined in the RRLUS, being that of Integrated Developments. These were defined as comprehensive rural residential subdivision developments with a more intense subdivision pattern (lots averaging at less than 1ha) allowing for a greater intensity of buildings and development. These developments also tend to be staged with development being phased over many years. The planning objective was to apply strict development criteria designed to achieve self-sufficiency and high quality urban design and environmental outcomes. There was also the suggestion that developments could be designed in such a way that they could be integrated with, or become, low density developments within a wider urban area. While there may have been a theoretical basis for comprehensive developments as described in the RRLUS, the practical difficulties of managing land owner expectations, servicing issues and the potential for adverse effects on the Council’s infrastructure outweigh the perceived advantages. Experience since the RRLUS and the effect of One Plan Policy 3.4 which requires the Council to plan for the strategic integration of infrastructure with land use are further reasons why Integrated Developments are not provided for in PC15A.
178) With the exception of Aokautere and Moonshine Valley, the 2ha ‘entry level’ horticulture lots and the surplus farm dwelling lots, the rural subdivision provisions provide a stark contrast, or ‘policy differentiation’ as Mr Murphy describes it, between rural areas identified for production and rural areas where rural-residential subdivision is enabled. The consent categories proposed reinforce this differentiation with no discretionary activity category for non- compliance with minimum area standards.
179) Overall we think that the following extract from Mr Murphy’s section 42A report encapsulates the outcome of the Council’s research and the policy and rule development for PC15A:
4.51 (d) The proposed 20ha minimum lot size for rural subdivision and retention of the 1ha minimum lot size for rural-residential subdivision sits at the heart of the strategic intent of PPC15A to promote the sustainable management of the rural land resource.
36 1911 The 20ha minimum lot size protects class 1 and 2 soils which are a scarce resource and retains the productive capability of the rural zone. The 1ha minimum lot size reinforces the self-serviced nature of rural-residential subdivision and seeks to avoid further blurring of the lines between rural development and urban development. It also recognises the topography of the spatial extent of the overlay. Any subdivision application with a lot size below 20ha or 1ha has the potential to challenge the strategic intent of PPC15A and should therefore be assessed against the objectives and policies of the subdivision section, in particular objective 3 and the supporting policies. The non-complying status reinforces that non-compliance with the minimum lot size requires closer attention than non-compliance with typical development standards which are assessed as a discretionary activity.
The 20ha minimum lot size
180) A number of submissions oppose the 20ha minimum lot size outright or support it subject to amendments. Some submissions need individual assessment, while others can be assessed collectively. Those that need individual assessment are as follows:
1. Fran Harvey (S12) opposed the 20ha minimum and submitted that if a 4ha lot of less productive land is allowed, that will satisfy the demand for small lifestyle blocks. As seen in the Council’s evidence, the current rules do not specify productive capacity or soil class for the 4ha minimum area Controlled Activity category subdivision. This type of subdivision is having and will continue to have an increasing detrimental effect on the sustainability of rural land use. For those reasons we reject this submission.
2. BJ & CJ Whitelock, John Whitelock and Others (S17) are opposed to the 20ha minimum lot size and want it deleted. They do this on the grounds that to specify a 20ha minimum will encourage subdivisions of that size which will lead to fragmentation of productive rural land, be a backward step and undermine the Council’s stated intention to avoid fragmentation. As seen in our general assessment of the PPC15A rural subdivision proposals the Council’s position is that ‘business as usual’ is not a sustainable means of ensuring best use of productive land. We reject this submission because the 20ha minimum lot size will not have the effect claimed and is in fact an integral part of maintaining production values of elite soils.
3. There was no appearance by the Ministry of Education (S20) but it seems to us that the Ministry’s concerns about the 20ha minimum lot size affecting the acquisition or sale of land associated with designated rural schools is unfounded. Section 11(1)(b) of the RMA exempts from the provisions of that Act a subdivision that is effected by the acquisition, taking, transfer, or disposal of part of an allotment under the Public Works Act 1981. However, Mr Murphy has recommended an amendment to Rule 7.16.1.2 (b) that exempts a subdivision for the acquisition or disposal of land for a public work (or quarry) from the 20ha minimum area. We therefore accept the submission for reason of clarity.
4. Joseph Poff (S24) opposed the whole district plan and sought as remedy that the planning department of the Council be overhauled. That of course
37 1912 is not a submission that we can entertain or a remedy capable of being granted in this process. We reject Mr Poff’s submission and also that of Dorothy M Alley (S58) who supported his submission.
5. Phillip Pirie (S39) wanted all references to minimum lot areas deleted and procedures similar to those of the Manawatu District Council to be adopted. His reasoning is that minimum area specification is outdated thinking and will result in a waste of the land resource. We note that the MDC provisions do rely to a certain extent on minimum and average lots sizes. In any event, we are satisfied that the use of minimum lot sizes is an appropriate method for the control of the adverse effects of subdivision, including the unnecessary fragmentation of land parcels. We accept this submission in part to the extent that we have adopted Mr Murphy’s recommendation to delete the statement of a purpose of subdivision in certain rules (see para. 198 below and paras. 470-476 of Part 10 of this decision for details). In all other respects we reject this submission.
6. Paul Cole (S29) submitted that the 20ha minimum lot size is excessively large and he required that this be reduced to 4ha where the property does not contain class 1 soils. Mr Murphy advises, and we accept his advice, that such an outcome would not comply with the One Plan. We therefore reject this submission for that reason.
7. Kevin O’Connor & Associates Limited (S51) supported the 20ha minimum but required that sites under that area be assessed as a discretionary activity not a non-complying activity. The submitter gave evidence that the reason for the request was that existing lots under 20ha in area could not be subdivided further (with a non-complying activity consent) even though they may not have any significant productive potential and where the subdivision would fit in with the surrounding environment. We noted above that Mr Murphy had recommended a policy amendment that would increase the scope for consideration of subdivisions resulting in lots less than 20ha while retaining them in the category of non-complying activities. We think that this satisfies this submission in part and we therefore allow it in part to the extent that Policy 3.2 is altered as proposed by Mr Murphy in his reply to the additional s32 submissions.
8. Kevin O’Donnell (S78) requested that in respect of a specific property of 25ha in area in O’Donnell Road that land holdings that are less than 20ha at the tine PPC15A is made operative may be subdivided as discretionary activities subject to a number of conditions. The submission stated that the land has soil classification 2/3. As seen above, subdivisions of the type envisaged by this submission containing class 2 soils are contrary to the One Plan and would not be allowed. In addition, making such a site specific rule amounts to ‘a de facto’ re-zoning which would not promote the sustainability of the land resource. We therefore reject this submission.
38 1913
9. Gavin Terry (S80) requested in respect of a 6.4724ha property in Flygers Line that it be re-zoned residential or that subdivision be allowed as a discretionary activity by virtue of its existence as an existing under sized lot and the proximity of residentially zoned land. The submission stated that the land has soil classification 2/3. The re-zoning request has been dealt with elsewhere in this decision and rejected. We also reject the request for discretionary activity status because making such a site specific rule amounts to ‘a de facto’ re-zoning which would not promote the sustainability of the land resource. If the land contains any class 2 soils a subdivision of it into residential or rural residential land would be contrary to the One Plan and therefore not allowed.
181) The remainder of submissions opposing the increase to 20ha minimum lot size as a controlled activity in the rural zone outside the rural residential overlay are as follows:
1. Federated Farmers (S44) made a number of submissions many of which are dealt with in other parts of this decision. The submission requested the deletion of the 20ha minimum lot size, retention of the current 4ha size but with a minimum of 8ha for class 1 and 2 soils. The reason given for these requests include that:
District Plan provisions provide the necessary flexibility for land owners to make subdivision decisions that are in the best interests of the land owners, and fit better with the intent of the District and wider Regional Plans (for example with regard to soil class and long term land productivity).
2. Ashley Farms Ltd (S38) requested that subdivision rules stay as they are and are not made more restrictive. In evidence Mr Ashley stated that he wished to protect the future value of the family’s land and for that purpose he wanted the rules to provide for subdivision into smaller lots between 1ha and 4ha. He believed that could be done without threat to class 1 or 2 soils which were not present in his land.
3. Heritage Estates Limited (S47) and Pioneer City West Limited (S55) have similar submissions relating to land that is earmarked for future residential. Both opposed the 20ha minimum and requested a 4ha minimum.
4. Deborah and Dean Sparks (S49) and (S53) requested that the minimum lot size is not increased from 4ha to 20ha on all rural land. Their extensive reasoning calls on experience with both small block and large farm situations. They question the lack of definitive description of terms used in PPC15A such as productive and productive activities. They argue that the sizes that would be available under the proposed rules are not suitable for a range of rural activities that are sought by people living in or moving to a rural area. For example they say that 1ha is too small for activities involving animals and that 20ha requires significant capital and effort to farm which is not suitable for ‘lifestyle’ activities. They say that there will be a point (in the future) where existing properties will not meet market needs and that this change needs to consider long term as well as short term needs.
39 1914 5. Frederick Setter (S71) submitted that he wants to have the ability to sell his 19ha in smaller lots and therefore opposes the 20ha minimum.
6. John Stephenson (S74) opposed the 20ha minimum as too restrictive and requested that his land be rezoned rural residential. There is no rural residential zone as such provided for in PPC15A but the existing overlay that allows subdivision of 1ha lots is maintained. Council’s landscape expert considers the Stephenson land as suitable to be added to the overlay, but Mr Murphy recommends against this on the basis that the land is suitable for future residential growth because it has no class 1 or class 2 soils, does not have a high liquefaction risk and is not subject to flooding. This submission is also dealt with under the heading of Additions to the Overlay, below.
182) The above submissions have a degree of commonality that allow them to be assessed together. By and large these submitters oppose the change to existing property rights that will result from PC15A. The changes will mean that landowners will have fewer options for the sale and development of their land and the protection and/or capitalisation of its value.
183) On the other hand, the economic evidence is that if the subdivision of rural land is left to market forces the private interests will usurp the greater public good.
184) Having regard to the body of evidence produced by the Council in respect of the existing and proposed subdivision provisions of PC15A we accept that there are adverse effects on production land from the continued fragmentation of it into smaller parcels. Traditionally one of the most frequently used and understood tools to control subdivision is the setting of minimum areas for new lots, including those in the rural area. While the numbers used are somewhat arbitrary, we have concluded that the 4ha minimum for production land is no longer appropriate. Clearly a 20ha minimum is a large step up but in our opinion something of this order is justified on the evidence produced by the Council which included a comprehensive suite of evidence addressing planning, economic, landscape, agricultural, soil, traffic and servicing issues.
185) The economic evidence in particular, is strong. Mr Eaqub says in his evidence that he found that the status quo is inefficient and does not meet a number of RMA principles including:
1. section 7(aa) - The ethic of stewardship;
2. section 7(b) - The efficient use and development of natural and physical resources; and
3. section 7(g) - Any finite characteristics of natural and physical resources.
186) By way of a conclusion to his evidence Mr Eaqub said:
The economic evidence in the end rests on a simple argument. Under PC 15A more high quality soils are likely to remain in productive use and housing supply will be unchanged. This means there will be a higher amount of capital input available for economic growth and jobs, for current and future generations. Potential inefficiencies in restricting housing supply has been mitigated by provision of lifestyle blocks elsewhere and other forms of housing in additional proposed regulatory changes. Existing regulation does
40 1915 not deal with the requirement of the RMA, changes proposed in PC 15A will help meet these goals.
187) Section 31(2) of the RMA identifies the control of subdivision as a method available to achieve the Council’s functions under section 31(1) RMA, which include “…..integrated management of the effects of the use, development, or protection of land and associated natural and physical resources of the district.”
188) The evidence that we heard was that a continuance of the 4ha minimum subdivision area in the rural zone will result in undesirable fragmentation of productive land. We regard that as a cumulative adverse effect that justifies intervention through a district plan rule as proposed. As to the appropriate minimum area for subdivision in these circumstances we are aware that a criticism often levelled is that the figure chosen is arbitrary. As we have said elsewhere in this decision, we understand 'arbitrary' to mean 'lacking a sufficient objective basis' (rather than completely capricious).
189) We are satisfied that an objective basis for a 20ha minimum area has been established by the evidence for the Council, in particular, that there needs to be a significant increase in minimum area to avoid the fragmentation of the land on a sustainable basis. The figure could be larger, say 25ha, as in MDC but the Council’s case has been built around the 20ha figure and we see no need to increase this.
190) Most of the submissions in opposition to the 20ha minimum suggest maintaining the current 4ha minimum, although Federated Farmers has suggested a minimum of 8 hectares for land with high class soils. In our opinion, minimum areas much below 20ha, applied through a general subdivision rule, will not promote sustainability of the productive land resource as proposed. A 20ha minimum is what the Council has proposed and we find no convincing argument not to adopt that.
191) We have also considered under what circumstances, if any, the minimum area rule of 20ha could be departed from. The Council’s intention is that the control be a reasonably absolute one with any departure from the 20ha minimum having to be considered as a non-complying activity in order to enforce the policy distinction between subdivision for rural-residential purposes and subdivision for productive purposes. In other words, the Council has decided to apply the mandatory tests of section 104D of the RMA rather than use the discretionary activity category. In the circumstances, and again with reference to the body of evidence produced in support of the ‘step-up’ in minimum area, we agree.
192) In some cases, a tightly controlled non-complying activity can be viewed as amounting to a prohibition of the activity. In those circumstances a discretionary activity category may be more appropriate, albeit one with applicable standards. However, we note that the amendments to subdivision Policy 3.2 recommended by Mr Murphy following reconsideration of section 32 requirements increase the scope for the consideration of subdivisions which propose lots less than 20ha. For that reason, we do not think that the approach can be construed as a ‘de facto’ prohibited activity.
193) For the above reasons we reject the submissions listed above that requested a lesser area than 20ha for rural subdivision outside the overlay and the Aokautere and Moonshine Valley Rural Residential Areas, and those
41 1916 submissions that requested a lesser category than non-complying activities for proposals that did not meet the 20ha performance standard.
194) The submission from BJ and CJ Whitelock queried whether Objective 3 should be limited to class 1 and 2 soils. We heard evidence from both Mr Nield and from other submitters that class 3 soils have significant productive value (though we also heard from some submitters that their class 3 soils were not highly productive). We have concluded that, for the reasons given by Nield (at paras.20-22) and Mr Murphy (at paras 4.37 - 4.40), Objective 3 and Policy 3.2 should both be amended as shown in Appendix 1 to recognise the productive capacity of class 3 soils. Accordingly, we accept the submission in this respect (and return to a related point in Table 3 at the end of this part of the decision).
Provision for Lots less than 20 hectares
195) A number of submissions sought explicit District Plan provisions to enable small lot rural-residential subdivision, or integrated developments as defined within the RRLUS. Some submissions sought such provisions on specific parcels of land while others sought general provision for such development as follows:
1. Bruce Peck (S1) made a site specific request for the property on the corner of Harrisons Line and Ashhurst-Bunnythorpe Road. This submission could be construed as one for a ‘re-zoning’ and/or one for inclusion of his land within the rural residential overlay area.
2. David C Parham (S6) made a general request for Ashhurst, Kelvin Grove-Bunnythorpe triangle to be available for closer subdivision.
3. Jacobus J Van Vuuren (S21) made a general request for the provision of smaller subdivision lot sizes between 2500m2 and 1 ha for Ashhurst South.
4. Axis Estate Ltd & PMW Trustee Co Ltd (S23) made a request for ‘integrated development’ as described in the RRLUS for land at 1454 and 1454A Napier Road being Lot 2 DP 304100, Lot 2 442236 and Lots 3 and 4 DP 304100.
5. Matthew Currie (S25) made a general request to allow rural residential lots with a minimum size of 0.5ha.
6. Paul A Cole (S29) made a general request that further subdivision be appropriate in areas where fragmentation into hobby farms has already occurred, in preference to further subdivision in areas where fragmentation has not occurred.
7. Paul Wycherley (S32) made a site specific request for the provision of smaller subdivision lot sizes between 2500m2 and 1 ha for Ashhurst South
8. Kevin O’Connor & Associates Ltd (S51) made a general request to delete the minimum area for surplus dwelling lots; allow new lots under 20 ha to be assessed as Restricted Discretionary Activities; and that lot sizes be able to be reduced in rural areas where appropriate to 5000m2 provided they are able to connect to services.
42 1917 9. Higgins Aggregates Limited (S62) requested that ‘quarrying activities’ be added to the purposes of subdivisions under Rule 7.15.2.1 – 2.0 ha lots in the Flood Protection Zone.
10. J & K Love (S70) made a general request with reference to allowing ‘cluster development’ with lots less than 1 ha in area.
11. Gavin Terry (S80) made a site specific request for a property in Flygers Line that would allow rural or rural-residential sized lots to be created, and/or lots less than 20ha to be assessed as Discretionary Activities.
12. Shannon & Co (S81) made a site specific request for a separate zone or an overlay for the company’s 100ha property at 1630 Napier Rd. No details were provided in the submission as to the nature of changes sought to the subdivision rules of PC15A, simply a request for the Council to investigate.
13. Sarah Taylor (S84) agreed with the 20ha minimum area requirement of Rule 7.16.1.2 but requested that properties under 20 ha with two dwellings could be subdivided using the surplus farm dwelling exception even though the balance area would be less than 20ha.
14. Stephen Hopcroft & Lancaster Properties (S91) made a site specific request for 538, 566 & 588 Aokautere Drive and a general request to allow ownership of small lots (1.5-2.0ha) of land that contain Class 1 soils.
196) PC15A provides a number of opportunities for subdivision of land into lots of less than 20 ha. These include:
Rule 7.15.2.1 Special Purpose Lots of not less than 2ha in the Flood Protection Zone; Rule 7.16.1.2 Lots with a minimum area of 1 ha and a maximum area of 2ha for surplus farm dwellings; Rule 7.16.2.1 Lots in the Aokautere Rural Residential Area with a minimum area of 5000m2 Lots in the Moonshine Valley Rural Residential Area with a minimum area of 1.5ha Lots in the Rural Residential Overlay Area with a minimum area of 1ha. Rule 7.17.1.2 Lots in the National Grid Subdivision Corridor with an area sufficient for National Grid purposes;
197) The submissions present little if any challenge to Rule 7.15.2.1, the first two categories under Rule 7.16.2.1 (Aokautere and Moonshine Valley Rural Residential Areas) or Rule 7.17.1.2.
198) Higgins Aggregates requested the purpose of ‘quarrying activities’ be added to Rule 7.15.2.1. Mr Murphy in his reply recommended against that. As referred to above, we agree that the rule should not link a land use in the manner proposed. Therefore, the request of Higgins Aggregates to include ‘quarrying activities’ in the rule is rejected.
199) Philip Pirie (S39) has submitted in respect of Rules 7.17.1.1, 7.17.1.2 and 7.17.1.3. His submission is dealt with in Part 10 of this decision.
43 1918 200) In respect of the submission by Shannon & Co (S81) the submitter did not appear at the hearing which leaves us with insufficient information as to the nature of any changes sought. For that reason, to the extent that the submission is seeking a regime that allows lots less than 20 hectares in area in the Rural Zone, the submission is rejected. The submission is further considered under the part of this decision dealing with the Rural Residential Overlay (see paras. 211-219 below).
201) In respect of Rule 7.16.1.2 that provides the exception for surplus farm dwellings, Mr Murphy saw merit in allowing in part submission 84 by Sarah Taylor. In that respect he reported that:
The surplus dwelling rule could benefit from an addition which makes it clear that provided the subdivision which provides for the surplus dwelling complies with the minimum and maximum lot size, the balance of the property which must have at least one additional dwelling need not comply with the 20ha minimum lot size.
202) We accept that as an appropriate way of dealing with the situation where there are two dwellings on a parcel of land under 20 ha in area. We do not think the occurrence will be prevalent and the position is protected from expansion by the performance standard that requires both houses to have existed prior to the operative date of PPC15A. We therefore accept in part the submission of Sarah Taylor by adding the following words to the proviso to Rule 7.16.1.2 (b) (ii):
“…….which need not comply with rule 7.16.1.2 (b)(i).”
203) The most significant provision for subdividing land into lots of less than 20ha is under Rule 7.16.2.1(b)(iii) that allows lots with a minimum area of 1ha within the overlay. Apart from the extent of the overlay, which we will deal with later in this decision, this rule is the same as the comparative rule in the operative District Plan. However, a number of submitters have requested lower minimum lot areas for rural residential subdivision both within the overlay and outside it. It may be that these submitters had an expectation for such provision to be made in PPC15A because the intention was clearly signalled in the RRLUS.
204) As recorded above (para.177) the Council decided not to follow the RRLUS in this respect. Therefore, there is no provision in PPC15A for integrated rural residential development. We heard evidence from Mr Murphy on the resource management implications of providing for integrated developments and from Mr Green on the servicing implications including asset management risks for the Council and future owners.
205) In summary, the expert evidence was that rural residential developments need to be capable of on-site service provision of water supply, stormwater collection and disposal and wastewater disposal. To achieve this, particularly where topography of the area or the risk of flooding constrains development, a minimum lot area of 1ha is recommended. We heard no evidence from submitters that contradicted or argued against the expert evidence of the Council in this matter except that a number of submitters did assert that in many cases 1ha is too large for a lifestyle block and that a variety of sizes between 5000m2 and 1ha would be more appropriate and there is market demand for this.
44 1919 206) In response to the submissions requesting a 5000m2 minimum lot area Mr Murphy in his reply advised that he maintained his recommendation for a minimum lot area of 1ha as a Restricted Discretionary Activity within the overlay (Rule 7.16.2.1). However, Mr Murphy did update his recommendation as follows:
58. An updated recommendation is that non-compliance with the 1ha minimum lot size within the rural-residential overlay defaults to discretionary as opposed to non-complying provided that a performance condition is added to the discretionary activity rule which requires a minimum lot size of 5000m2. This would mean potentially risky subdivision between 5000m2 and 1ha are assessed as discretionary as opposed to non-complying. This change recognises that:
A geotechnical report can still be required. 2 The 5000m within the One Plan. There are some areas of flat land included within the overlay. The market demand for lots below 1ha.
59. I support this approach over simply reducing the minimum lot size within the overlay to 5000m2. There is a risk that this will encourage landowners and developers to design to the minimum lot size as opposed to working with the natural constraints of much of the land. The technical evidence is 5000m2 is on the margins of a site that can be self-serviced with confidence over a long period of time, particularly given the geography of much of the overlay. Updated drafting to give effect to this recommendation can be provided.
60. For the purposes of clarity non-compliance with the 20ha minimum lot size outside of the overlay should remain a non-complying activity.
207) We have considered this advice in the light of the submissions received and the technical and resource management evidence heard and find that provision for lots of 5000m2 as a Discretionary Activity, subject to performance standards and full discretion when considering applications, is an appropriate way of meeting the submissions that requested smaller lots within the overlay without compromising the subdivision objectives and outcomes proposed for the Rural Zone.
208) Further we consider a similar default should be provided in the case of subdivisions for surplus farm dwellings. The reasons given by Mr Murphy for his recommendation that rural residential lots within the overlay should default to a discretionary activity for a minimum lot area of 5000m2 apply equally as well to proposed lots around surplus farm dwellings. The risk that he identified in respect of such a provision would in our view be less because the occurrence of subdivisions for surplus farm dwellings would be significantly less than rural residential subdivisions within the overlay.
209) Accordingly, we accept in part the submission by Kevin O’Connor & Associates Ltd (S51) and others who made similar submissions by adding a new Discretionary Activity for subdivisions in the overlay and for surplus farm dwellings that do not comply with the relevant performance standards of 1ha minimum area in Rules 7.16.1.2 (b)(ii) (surplus dwellings) and Rule 7.16.2.1 (b) (iii) (subdivisions in the overlay). The rule is to be subject to a performance standard that no lot shall be less than 5000m2 and a Determination Clause that in addition to the consideration of City View Objectives and the relevant
45 1920 objectives and policies of section 9 and section 7 applications shall be assessed in terms of the Assessment Criteria in Rule 7.16.2.1.
210) In all other respects the above submissions that requested that provision should be made for subdivision of rural land into lots less than 1ha not otherwise provided for are rejected.
The Rural Residential Overlay
211) Rural residential subdivision is categorised as a Restricted Discretionary Activity within the overlay where the current minimum lot area of 1ha is retained to generally enable rural-residential subdivision to occur on a self-serviced basis and with assessment of the risks and constraints associated with the land in the overlay. By way of our decision to accept in part submissions requesting smaller lots in the overlay area, lots of 5000m2 and 1ha will now default to a discretionary activity category as opposed to the non-complying category that applied when PPC15A was notified.
212) The extent of the overlay has been reduced from approximately 10,800ha to approximately 2,400ha in order to assist in maintaining the overall productive capability of the Rural Zone; manage reverse sensitivity effects on consented wind-farms and manage the transportation effects, costs and equity issues associated with further rural-residential subdivision on ageing rural roads where no public funds are allocated for upgrades.
Submissions in support of or in opposition to the changes in the Overlay
213) A number of submissions have sought the retention of the proposed overlay (the reduction). The main reason cited for the retention of the proposed overlay is it avoids fragmentation of the rural zone and reduces reverse sensitivity effects.
214) Joseph Poff (S24), Phillip H Pirie (S39), Dorothy M Alley (S58) and J & K Love (S70) have sought the retention of the operative extent of the overlay. The main reasons cited are that the proposed reduction to the overlay will severely limit the land available and increase land prices. The submission by Phillip H Pirie is opposed by Mighty River Power (FS10). The submission by J & K Love is opposed by Alison Mildon (FS1).
Submitters seeking reinstatement to the Overlay
215) Peter H Allen (S67) Ngahere Park Road. Mr Allen owns a lot at the upper end of Ngahere Park Road which was in the overlay but his property is now proposed to be excluded, along with the majority of Ngahere Park. He wishes to continue to be included in the overlay.
216) Maurice Alley (S107) 494 & 514 Pahiatua Track. Mr Alley’s properties were included in the overlay but are now proposed to be excluded because of proximity to consented wind turbines. Mr Alley wishes to be included.
Submitters seeking to be added to the Overlay
46 1921 217) The following submitters sought to have their properties included in the overlay:
1. Bruce Peck (S1), Corner of Harrisons Line and Bunnythorpe Road, Ashhurst
2. Phillip Ropiha (S3), 153 Tutaki Road
3. PNCC (S13), regarding Kingsdale Park
4. John Wycherley (S26), 160 Wyndham Street, Ashhurst
5. Brian Green (PN) Properties Ltd (S28), corner Kelvin Grove and Stoney Creek Roads
6. Paul Wycherley (S32), Ashhurst South
7. Selwyn Wycherley (S73), Ashhurst South
8. Friederike Lugt (S37), Tutaki/Stoney Creek Area
9. Jeremy J Lind (S52), 671 Stoney Creek Road
10. John W Stephenson (S74), Henagahns Road, Hendersons Line, Stoney Creek Road,
11. Stu Water (S76), Harts Road Turitea Valley
12. Gavin Terry (S80), Flygers Line
13. Shannon & Co (S81), 1630 Napier Road
14. Starter Plants Limited (S88), 126, 128, 130, 132, 134, 140, 144, 152, 158,164, and 178-205 Turitea Road
15. Albert and Jane Van Der Zwan (S31), 60 Harts Road
16. Sandra K Hey (S90), Pohangina Road, North St to David St, Ashhurst
17. Ashley Farms Ltd (S38), 588A Stoney Creek Road
218) The submission by Brian Green (PN) Properties Ltd (S28) for land on the corner of Kelvin Grove and Stoney Creek Road has been withdrawn.
219) Mr Murphy has assessed all of the other submissions listed above and tabulated the outcomes of his consideration, together with a brief description of each property and his reasons for recommending that the submissions be accepted or rejected. Mr Murphy has recommended that the following submissions requesting inclusion in the overlay be accepted:
1. Phillip Ropiha (S3), 153 Tutaki Road (in respect of the part of the property outside the air noise boundary; 2. PNCC (S13), regarding Kingsdale Park; 3. Starter Plants Limited (S88), 132,134,140,144,152,158.164,178-205 Turitea Road 4. Sandra K Hey (S90), Pohangina Road, North St to David St, Ashhurst
47 1922
220) Mr Hudson has also assessed a number of the relevant properties from a landscape perspective. He did not assess the land which is the subject of the submission by Palmerston North City Council (S13) or the Ashley Farms land (S38). In respect of the submissions assessed by Mr Hudson and recommended by Mr Murphy for acceptance, Mr Hudson agrees that these are acceptable for inclusion within the overlay.
221) In respect of the other submissions not recommended by Mr Murphy for acceptance, Mr Hudson has commented that:
the Alley property is acceptable but has been excluded because of its proximity to a wind farm; the Allen land is acceptable; the Stephenson land is acceptable from a landscape point of view; and areas of the Starter Plants and Massey University land to be included should avoid Class 1 soils.
222) In his reply to the evidence heard Mr Murphy updated his recommendation regarding the submission by Starter Plants Limited to include 126, 128 and 130 Turitea Road in the overlay.
Submissions seeking areas to be removed from the Overlay
223) In his reply to the evidence of NZ Windfarms Ltd (S61), Mr Murphy recommended that any lots that contain land within 1.5km of a consented wind turbine should be removed from the overlay. He referred to three particular properties – Lot 2 DP 465363, Lot 9 DP 86275 and 1/5 share of Lot 16 DP 86275 being 1103sqm and Lot 5 DP 87477.
Other removals sought
224) Mr Hudson did assess the acceptability, from a landscape point of view, of the inclusion in the overlay of four properties or parts of properties. Three of these are within the overlay of the Operative District Plan and are proposed to be retained by PC15A, and the fourth was not in the overlay under that the Operative District Plan but has now been included by PC15A. The properties are described by Mr Hudson in his evidence (Appendix 4 of the section 42A report as ‘Suggested Removals’ (from the overlay). They are located at Kahuterawa Road and Old West Road; Fitzherbert East Road (south side) just north of Aokautere; Tennant Drive and Scotts Road; and at Harts Road above Turitea Road. The only submission that relates to these areas of land is in respect of the latter area from Stu Waters (S76) which supports the inclusion of the 43ha area as proposed by PPC15A.
225) Mr Murphy has identified the suggested removal of these areas from the overlay as a procedural issue that prevents removal of the areas concerned because there are no submissions requesting those changes to PC15A. In Mr Murphy’s opinion the only way that the matter could be dealt with is for the Council to withdraw the relevant parts of PC15A under clause 8D, schedule 1 RMA. We also received, as part of Mr Waters’ submission, a letter from his
48 1923 solicitors containing an opinion that removal of the areas concerned is beyond the scope of our jurisdiction. We agree and therefore need take no further action on the suggested removals.
226) We have considered Mr Murphy’s reasons as set out in his Table 2 and his reply to the evidence of submitters, together with Mr Hudson’s assessments and all relevant submissions and evidence. We have visited the locations of all the subject properties. We accept and adopt Mr Murphy’s reasons and have based our decisions in this matter on his recommendations and our overall assessment of the merits of reducing the overlay. In summary we understand these merits to include:
1. a reduction in the scale and extent of the currently operative overlay to avoid unnecessary fragmentation of land;
2. the avoidance of reverse sensitivity effects from existing and consented wind turbines; and
3. the focussing of rural residential development opportunities on landscapes more able to absorb adverse visual, access and servicing impacts.
Decision
227) Overall we see these changes as more conducive to sustainable management principles than the status quo. We therefore:
1. Accept those submissions which support the proposed extent (reduction) of the overlay;
2. Reject the submissions of Joseph Poff (S24), Phillip H Pirie (S39), Dorothy M Alley (S58) and J & K Love (S70) which seek retention of the operative extent of the overlay and allow the further submissions of Mighty River Power (FS10) in opposition. Alison Mildon (FS1) which opposed them;
3. Reject the submission by Peter H Allen (S67) for the reason that it is incongruous for his property to be included in the overlay when the balance of Ngahere Park has been excluded. There may be some scope for further subdivision as a non-complying activity in the light of the proposed amendments to Policy 3.2 described above.
4. Reject the submissions by Maurice Alley (S107) because his properties are within 1.5 km of existing or consented wind turbines.
5. Reject the submissions by Bruce Peck (S1), John Wycherley (S26), Paul Wycherley (S32), Selwyn Wycherley (S73), Friederike Lugt (S37), Jeremy J Lind (S52), John W Stephenson (S74), Stu Water (S76), Gavin Terry (S80), Shannon & Co (S81), Albert and Jane Van Der Zwan (S31), Ashley Farms Ltd (S38) which request that properties or parts of properties be added to the overlay;
49 1924
6. Accept the submissions by:
a) Phillip Ropiha (S3) to add 153 Tutaki Road to the overlay (except for the part of the property inside the air noise boundary);
b) Starter Plants Limited (S88) to add 126, 128,130,132, 134, 140, 144, 152, 158, 164 and 178-205 Turitea Road to the overlay;
c) Sandra K Hey (S90) to add properties in Pohangina Road, North St to David St, Ashhurst to the overlay; and
d) PNCC (S13) to realign the overlay boundaries with those of the Kingsdale Park subdivision.
7. Accept in part the request by NZ Windfarms Limited (S61) to reduce the extent of the overlay by removing the following three properties - Lot 2 DP 465363, Lot 9 DP 86275 and 1/5 share of Lot 16 DP 86275 being 1103sqm and Lot 5 DP 87477.
Provision specific submissions
228) A number of submissions address specific rural subdivision provisions. Each submission point is assessed individually within Mr Murphy’s Table 3 which forms part of his section 42A report. His assessment excludes submissions in support.
229) We have examined each of the submission points listed in Table 3 and, subject to a number of exceptions, we agree with and adopt the recommendations of Mr Murphy in Table 3. We are satisfied that in the majority of cases his ‘assessment’ contains the reason for his recommendation. The exceptions occur where we have come to a different conclusion, the reasons need expansion, or the evidence and submissions (including the Council’s reply) mean that original recommendations are no longer appropriate. The exceptions are:
Submission Plan Submission Reasons Decision Reference Reference SO44- 7 - That the proposed rules better align No specific amendments have been Reject. Federated Subdivision with the Principal Reasons in requested therefore relief cannot be Farmers section 7.5 granted. A “mop-up” of the Manawatu- subdivision section is planned Rangitikei following PPC15A-H and PPC20A-B. Province It is likely this section 7.5 will be deleted at that time. SO17 7.3.3.2 - The submitter seeks the The evidence from Mr Jeremy Neild Accept in part BJ & CJ Policies amendment of Clause (vi) to was that there is a significant amount by amending Whitlelock, expand the reference to other soils of land with Class 3 soils outside of subdivision John i.e, add 'and other soils' after the the rural residential overlay and the objective 3 and Whitelock & words 'soils'. productive of these soils should be policy 3.2 to Others recognised in Objective 3 and Policy recognise the 3.2. (see paragraphs 4.37-4.41 of the contribution section 42A report) Class 3 soils make to rural productivity.
50 1925 Submission Plan Submission Reasons Decision Reference Reference SO25- 7.16.1 - Amend Rule 7.16.1.2 (b) (ii) to The 1ha minimum lot size is Reject. Matthew Rules: allow the subdivision of surplus consistent with the minimum lot size Currie Controlled dwellings on a minimum 0.5 ha lot. for rural-residential activities as a Activities controlled activity. It is likely surplus dwellings will have an existing on-site wastewater system. The 1ha minimum is aimed at ensuring there is sufficient land for the existing house and existing on-site system recognising that the location of the existing wastewater system is unlikely to have been located within subdivision in mind. The 2ha maximum ensures as much land as possible remains with the balance land for production. SO25- 7.16.1 - Amend Section 7.16 so that where The 1ha minimum lot size is Reject. Matthew Rules: there are surplus existing dwellings consistent with the minimum lot size Currie Controlled that these are able to be subdivided for rural-residential activities as a Activities both as multiple dwellings on a new controlled activity. It is likely surplus title, or multiple dwellings each on dwellings will have an existing on-site their own title. wastewater system. The 1ha minimum is aimed at ensuring there is sufficient land for the existing house and existing on-site system recognising that the location of the existing wastewater system is unlikely to have been located within subdivision in mind. The 2ha maximum ensures as much land as possible remains with the balance land for production. SO17-BJ & R7.16.1.2 - Retain Rule 7.16.1.2 Performance The 1ha minimum lot size is Reject. CJ Performance Standard (b)(ii) but have the consistent with the minimum lot size Whitlelock, Standards minimum lot area be determined by for rural-residential activities as John for a registered engineer or the like. Controlled Activities. It is likely Whitelock & Controlled surplus dwellings will have an Others Activities existing on-site wastewater system. The 1ha minimum is aimed at ensuring there is sufficient land for the existing house and existing on- site system recognising that the location of the existing wastewater system is unlikely to have been located within subdivision in mind. The 2ha maximum ensures as much land as possible remains with the balance land for production. SO44- R7.16.1.2 - That R 7.16.1.2 b) ii) (providing for The 1ha minimum lot size is Reject. Federated Performance the subdivision of 1 ha to 2 ha lots consistent with the minimum lot size Farmers Standards within the Rural Zone) is amended for rural-residential activities as Manawatu- for to delete the reference to 1 hectare Controlled Activities. It is likely Rangitikei Controlled minimum. surplus dwellings will have an Province Activities existing on-site wastewater system. The 1ha minimum is aimed at ensuring there is sufficient land for the existing house and existing on- site system recognising that the location of the existing wastewater system is unlikely to have been located within subdivision in mind.
51 1926 Submission Plan Submission Reasons Decision Reference Reference SO62- All provisions The submitter is concerned that PC No specific amendments have been Accept in part Higgins - All 15 A-H places obstacles in the way requested in respect of this Aggregates provisions of new quarries in aggregate-rich submission. Limited locations and that reverse However, proposed Rule 7.16.2.1 (e) sensitivity is not recognised for requires a 500m buffer from a quarry existing quarries, despite Horizon's between an existing quarry operation One Plan's Chapter 5 recognising and a proposed rural residential the region's economic benefit from development the use of gravel resources. SO66- All provisions That sustainable management is No specific amendments have been Reject. Proarch - All achieved through amendment to requested. Consultants provisions policies, objectives and rules. SO1-Bruce Map 9 - Requests rezoning of land at corner Refer to decisions on rural residential Reject. Peck of Harrisons Line and Ashhurst - overlay area. Bunnythorpe Road to allow for 0.5ha subdivision SO13-PNCC All provisions The submitter requests that No specific details are given in the Accept in part - All Section 7 of PPC15A include submission but it can be deduced to the extent provisions more specific references to the from the s42A report that in respect of that Policy requirement to comply with The rural subdivision Policy 2.8.5 it is 2.8.5 is New Zealand Fire Service intended to include a specific amended to Firefighting Water Supplies Code of reference to SNZ PAS 4509:2008 as read: Practice SNZ PAS 4509:2008. a compliance standard. However the inclusion of this standard in the “In rural areas District Plan has been the subject of properties separate consideration in the context must be of a number of submissions by the supplied with New Zealand Fire Service (NZFS) water, whereby we rejected the aspects of including water the submission requesting recognition for fire-fighting” of the Standard in the various provisions of PC15. However some amendment to Policy 2.8.5 is necessary to make it consistent with the opening words of 2.8 that refer to water for fire-fighting. SO27 7.3.3.1- The submitter requests that Policy For the reasons given above it will not Accept in part New Policies 3.2 under Subdivision Objective 3 be consistent with the separate Zealand Fire be amended to include reference to decision made in respect of the NZFS Service the New Zealand Fire Service submission to accept this submission Firefighting Water Supplies Code of except that the words “including water Practice SNZ PAS 4509:2008. for fire-fighting” can be included after the word “supply”. SO27 7.16.1.2 The submitter requests that For the reasons given above it will not Reject New Performance compliance with the New Zealand be consistent with the separate Zealand Fire Standards Fire Service decision made in respect of the NZFS Service Controlled Firefighting Water Supplies Code of submission to accept this submission Activities Practice SNZ PAS 4509:2008 be included as a performance standard. S027 7.16.2.1 The submitter requests that For the reasons given above it will not Reject New Assessment compliance with the New Zealand be consistent with the separate Zealand Fire Criteria for Fire Service decision made in respect of the NZFS Service Discretionary Firefighting Water Supplies Code of submission to accept this submission. Activities Practice SNZ PAS 4509:2008 be included as an assessment criteria.
52 1927 Submission Plan Submission Reasons Decision Reference Reference S027 7.16.3.2 The submitter requests that if The decision above to reject the Reject New compliance with the proposed inclusion of the standard means that Zealand Fire standard for fire-fighting water this request becomes redundant. Service supply is not achieved the otherwise Controlled Activity becomes a Discretionary Activity.
230) The Provision specific submissions are therefore accepted, in part or in whole, or rejected in accordance with Table 3 in the section 42A report or in accordance with the table above as the case requires.
53 1928
8. Plan Change 15B Windfarms and Landscapes
Background
231) The purposes of PC15B are to review the Plan provisions for windfarms and landscapes which, in this context, are primarily issues for the Rural Zone. The review is, to a significant degree, shaped by the relevant provisions of Part 2 RMA and by national and/or regional policies which must be given effect to. The Plan itself also contains City Wide Objectives (in Section 2) which reflect and give effect to these higher policies.
232) Though the windfarm and landscape topics are distinct, they are nevertheless also closely related. Because of their scale, and the size of wind turbines, windfarms will almost inevitably always affect the landscape in some way, and may indeed redefine it. And because Part 2 provisions specifically recognise the importance of both landscapes and renewable energy, a degree of tension in the management of these resources is also often inevitable.
233) In the review of Plan provisions, strong directives for windfarms are provided by section 7(b) and (j) as well as the National Policy Statement on Renewable Energy Generation ('NPSREG') and the RPS's energy and infrastructure policies.
234) A number of windfarms have been established near the City's eastern boundary on the northern end of the Tararua Ranges, and there are also consented but undeveloped windfarm proposals. It appears likely that any further development proposals will sited on land which already has windfarms as those existing facilities reach the end of their lifespans.
235) For the review of Plan provisions on landscapes, section 6(b) requires the Council to recognise and provide for the protection of outstanding natural features and landscapes, and section 7(c) requires the Council to have particular regard to the maintenance and enhancement of amenity values. The RPS's Schedule G identifies regionally outstanding natural features and landscapes which are included in Objective 6-2 and its subordinate policies.
236) The two areas identified in PC15B as outstanding landscapes are both generally within Schedule G.
Key provisions of PC15B in brief
237) The key provisions are additions and amendments to Section 9 Rural, with other provisions in Section 4 Definitions, Section 5 Information Requirements and Section 7 Subdivision. In brief the major provisions considered in this decision are the following.
Objectives:
238) Rural Objective 7: recognising part of the Tararua Ranges and the Manawatu Gorge as regionally outstanding natural features and landscapes to be protected from inappropriate use and development.
239) Rural Objective 8: recognising the benefits of renewable energy and the importance of the City's renewable energy resources.
54 1929
240) Rural Objective 9: avoid, remedy or mitigate the adverse effects of REG activities on the rural environment
Policies:
241) New Rural policies subordinate to new Objectives 7-9 above.
242) New Rural policy 3.5 to avoid significant adverse visual effects of REG activities on outstanding natural features and landscapes.
Rules:
243) New rules proposed in Section 9 as follows:
a) R.9.5.5: 1.5km separation between any residential building and a consented wind turbine.
b) R.9.7.5: domestic wind turbine (as defined) is a restricted discretionary activity.
c) R.9.8.6: a windfarm is a discretionary activity.
d) R.9.8.7: any dwelling etc inside the 1.5km separation distance is a discretionary activity.
e) R.9.9.3: any windfarm that does not comply with discretionary activity performance standards is a non-complying activity.
f) R.7.16.1.2: any controlled activity subdivision cannot have a dwelling site within 1.5km of a consented wind turbine.
g) R.7.16.3.1: any subdivision within the Tararua Landscape Protection Area is a discretionary activity.
Maps:
244) Map 9.1 defines the Tararua Landscape Protection Area.
Submissions
245) The following persons made submissions on PC15B. A number of persons also made further submissions, but as with other sections of this decision these further submissions have not been assessed separately and the decisions on them are purely consequential to the decisions on the submissions to which they related. The submissions are helpfully summarised in Appendix 1 of Ms Marr's section 42A report, and we simply adopt that summary and do not need to repeat it.
1. Paul Cole 2. Mighty River Power 3. Trustpower 4. NZ Windfarms 5. Alison Mildon 6. Meridian Energy
55 1930 7. Dorothy Alley 8. Horizons 9. Sarah Taylor 10. Bruce Wilson 11. NZ Wind Energy Association 12. Maurice Alley 13. John and Kathy Love 14. Anne Milne 15. BJ & CJ Whitelock 16. Philip Pirie 17. Rocky Renquist 18. Jill White 19. Joseph Poff
246) Where a submitter did not (or was unable to) attend the hearing, we confirm that we have read and taken into account the submission in our decision.
Hearing
247) The hearing of PC15B was on 2 - 4 December 2015.
248) The participants are listed below. Their respective contributions were all summarised in written notes (which are available on the Council website for the PC15B hearing), and while it is unnecessary to summarise those contributions here we refer to them as appropriate in the assessment below.
249) The Council was represented by Helen Marr, Nigel Lloyd, John Hudson and John Maassen. Ms Marr, Mr Lloyd and Mr Hudson gave overviews of their respective evidence which had been pre-circulated to all participants in the section 42A report. Mr Maassen spoke to the relevant part of the legal report for Plan Change 15 which had been circulated with the Agenda.
250) Mighty River Power was represented by Miles Rowe, Andrew Collins and Brad Coombs.
251) Trustpower was represented by Clayton Delmarter and Robert Schofield.
252) NZ Windfarms was represented by Vicki Morrison-Shaw, Miklin Halstead, and Philip Mitchell.
253) Alison Mildon spoke to her submission, and included a number of slides.
254) Meridian Energy was represented by Humphrey Tapper, Andrew Feierabend, Paul Botha, Stephen Chiles and Christine Foster.
255) Bruce Wilson spoke to his submission.
256) NZ Wind Energy Association was represented by Eric Pyle.
257) John and Kathy Love spoke to their submission.
258) Jill White spoke to her submission.
259) Joseph Poff spoke to his submission.
56 1931 260) Horizons did not attend the hearing but submitted written material from Penelope Tucker.
261) All of the Council participants (Ms Marr, Mr Lloyd, Mr Hudson and Mr Maassen) spoke in the Council's reply. Again the text of their statements are available of the Council website for the PC15B hearing.
Assessment
262) In our assessment of requests made in submissions, we have allocated them to topic categories. These topic categories are generally similar to those used by Ms Marr in her planning report, and where we agree with and adopt her recommendations on a particular matter we simply state that conclusion and refer to the relevant paragraph of her report for our reasons. The topics are listed below:
1. Objectives and Policies 2. Extent of TRLPA 3. Activity status of windfarms and other development or activity in TRLPA 4. Repowering 5. Dwelling setbacks from windfarms 6. High Amenity Areas 7. Significant amenity landscapes 8. Domestic scale wind turbines 9. Other requests
Objectives and Policies
263) The proposed PC15B Objectives and Policies for landscapes and windfarms are summarised above. A large number of requests in relation to these new provisions, as well as existing provisions in Sections 7 and 9, were received. We have not included requests relating to explanations and these are considered below under 'other requests'.
264) A number of the requests below seek relatively simple improvements to wording. Where these are accepted, the reason for the acceptance is that given in the relevant submission(s).
Section 7 Subdivision
265) Objective 3: Mighty River Power request the addition of 'avoids reverse sensitivity effects' as a bullet point. The request is accepted.
266) Policy 3.1: Mighty River Power request addition of residential setback. The request is accepted to the extent shown in Appendix (Policy 3.1.1(i)).
267) Policy 3.2: Mighty River Power request addition of reverse sensitivity. We do not regard recognition of reverse sensitivity as necessary or relevant to this Policy. The request is accordingly rejected.
268) Policy 3.4: Mighty River Power request addition of reverse sensitivity. The request is accepted to the extent shown in Appendix 1 (Policy 3.4(b)).
57 1932 Section 9 Rural
269) Policy 1.3: Trustpower requests a reverse sensitivity amendment. While we accept that reverse sensitivity is an important issue for windfarms, it is specifically addressed in Policy 8.2. We have not been persuaded that reverse sensitivity effects in a general sense warrant specific policy direction. We also refer to our decision on a similar issue arising from a Fonterra request on PC15A (in para.82 above). The request is accordingly rejected.
270) Objectives generally: Horizons requests an emphasis on avoidance of adverse effects as far as practicable in preference to remediation and/or mitigation. The request is directed to a specific Objective/Policies set, but is contextually most relevant to Objective 7 and Policies. The request is accepted.
271) Policy 3.3: NZ Windfarms requests deletion of this Policy. We regard the Policy as a necessary implementation of the Objective. Character cannot be maintained or enhanced unless there is a level of control on activities which have the potential to adversely affect it. The request is accordingly rejected.
272) Policy 3.5: Mighty River Power requests amendment to use 'control' rather than 'avoid'; Trustpower requests that the Policy be deleted; and Alison Mildon requests adding 'the values and characteristics'. We agree with Ms Marr's recommendation that Policy 3.5 should be divided into separate policies addressing, respectively, outstanding landscapes and significant amenity landscapes. We also adopt Ms Marr's proposed wording, except that 'avoid' is to remain in the policy on ONLS. The result is that the requests are accepted in part.
273) Policy 4.3: Trustpower requests addition of 'remedied'. The request is accepted.
274) Objective 7: Mighty River Power request deletion of objective and policies unless TRLPA excludes consented development and is restricted to regionally significant landscapes. We do not think that this requested amendment to Objective 7 would achieve the purpose of the Act and the obligation under section 6(b). The landscapes which are specifically referred to are indeed of regional significance (though we would not regard this as a necessary limitation had a broader ambit been proposed). We see no reasons to exclude consented development from the application of the objective and policies. The request is accordingly rejected.
275) Policy 7.2: NZ Windfarms request amendment by deleting 'control' and inserting 'manage'; Alison Mildon requests a rearrangement of the wording; Horizons requests recognition of effects other than cumulative effects. We have concluded that the wording proposed by the section 42A report provides a better balance. In this we include the recommended changes to the Explanation and the Notes which follow Policy 7.2. To that extent, the requests are accepted in part or rejected.
276) Policy 7.3: Mighty River Power request deletion of 'potential'; NZ Windfarms request amendment to cover other development. Policy 7.3 and (new) policy 7.4: Trustpower request amendment to 7.3 and new 7.4 to recognise existing development. We consider these requests in the context of other submissions (from submitters: NZ Windfarms, Trustpower and Horizons) which requested that the effect of other activities be recognised. We think that the proposed
58 1933 rewording of Policy 7.2 addresses these issues: at a policy level all land use and development which may directly affect the TRLPA is to be controlled. The requests are, to this extent, accepted in part.
277) Objective 8: Trustpower request amendment to recognise national and regional benefits. This request is rejected, for the same reasons given in paras. 281 and 282 below.
278) Policy 8.1: Mighty River Power request deletion of 'appropriate'; Trustpower and NZ Windfarms made similar requests. In our view the word 'appropriate' is the key qualification in this Policy. The reason that windfarms are a discretionary activity is a recognition that the potential effects of some proposals may see them assessed as wholly or partially inappropriate for a particular location. The requests are accordingly rejected.
279) Policy 8.2: Trustpower request addition of 'existing'. The request is accepted.
280) Policy 8.4: Mighty River Power requests relocation of this Policy under Objective 9. Although we agree that the 'topic' of Policy 8.4 (constraints) is relevant to Objective 9, we are satisfied that it is more appropriate under the 'recognition' Objective 8 rather than the 'adverse effects' Objective 9. The request is accordingly rejected.
281) Policy 8.5 (new): Mighty River Power request recognition of benefits in considering resource consent applications. As requested, the new policy is an enlargement of Section 7(j) and, in that sense, we do not think it is necessary. However, we agree with recommended Policies 8.5 and 8.6 which recognise the benefits and existing effects on the environment where repowering is proposed. To that extent, the requested is accepted in part.
282) Policies: Horizons request a Policy specifically recognising wind generation facilities as regionally or nationally significant. We do not think it necessary or appropriate for a district plan to assign regional or national significance to windfarms - this is, and has been, done at RPS and NPS level and the Plan must give effect to that recognition. This recognition does not require any specific policy endorsement. We think that the explanation to Objective 8 is sufficient. The request is accordingly rejected.
283) Objective 9 (and Policies): Mighty River Power request replacing 'energy' with 'electricity'. This request is accepted.
284) Policy 9.1: NZ Windfarms request amendment deleting reference to 'appropriate and well designed'. We refer to our decision at para. 278 above on Policy 8.1. The request is rejected for the same reasons.
285) Policy 9.2: Trustpower requests the addition of 'significant'. We do not think that this adds any meaning to the Policy in a context where all relevant effects will be taken into account in assessing any application for consent. This request is rejected.
286) Policy 9.3 (new): Mighty River Power request a policy recognising use of off- setting measures. We recognise that NPSREG PolicyC2 requires decision makers to have regard to offsetting measures or environmental compensation. We therefore accept the recommended amendment to Policy 9.2 and the request is, to this extent, accepted in part.
59 1934
Extent of the TRLPA
287) The proposed TRLPA is shown on Map 9.1. There are 5 submissions concerning the extent of the TRLPA.
288) Joseph Poff: Mr Poff's submission opposes PC15B in its entirety. He is very critical of both the process and the Council. While we accept that his views and complaints are genuinely held, neither the submission nor his presentation at the hearing addressed the substance of the resource management issues which are described in this part of the decision. His feedback on the draft TRLPA proposal stated that 'landscapes and the opinions thereon are entirely personal and subjective'.
289) It may well be that many people have a personal and at least partially subjective approach to landscapes, but the RMA requires local authorities to protect outstanding landscapes, and detailed and largely objective criteria for defining and 'ranking' landscape values have been defined by the Environment Court. Moreover, the RPS identifies specific landscapes which are of regional significance and we must give effect to this. Our obligation is to consider all the evidence, both lay and expert and form our own conclusions in the context referred to above. It follows that we reject Mr Poff's submission.
290) Mighty River Power request that Map 9.1 be amended to exclude the areas that are not regionally significant, and the areas that are already subject to a consented windfarm.
291) We will consider the second aspect first. The Board of Inquiry which considered the Turitea windfarm proposal heard evidence from seven landscape architects and 'numerous submitters' on the landscape values of the area affected by the proposal (Final report Chapter 12 [9]) and its conclusions were recorded as follows:
[79] We find that the northern end of the Tararua Forest park plus the vast majority of Hardings Park and the internal Turitea reserve are an ONL. Mr Anstey notes the frayed western edge of Hardings Park and all note the modified character at the northern end of Turitea Reserve as areas that would not qualify as outstanding. We accept these minor qualifications. This ONL is distinct from the pine plantation and cleared land to the north, and the modified external slopes on which the proposed windfarm is also located. These remain a significant amenity landscape as distinct from an ONL'
292) Mr Anstey and Mr Hudson who prepared the PC15B ONL assessments were both involved in the Turitea case (Mr Anstey as a witness and Mr Hudson as a member of the Board) as was Mr Coombs who gave evidence for MRP.
293) Since the Board's Final Report, the One Plan provisions have been made operative and, as we noted above, Schedule G is effectively a baseline for us. Moreover, Mr Coombs did not give any evidence in support of the request to exclude the Turitea consented area from the TRLPA.
294) There is therefore a clear basis for inclusion of the consented area within the TRLPA both from Mr Hudson's evidence and the requirement to give effect to the RPS. And there is no evidence to the contrary. To this, we would add that there is no evidence that the Turitea windfarm is about to be developed at any
60 1935 time in the near future. If it is developed in the life of the Plan under its consent, then the extent of the ONL will no doubt be part of any future review. (This is precisely the point made by Mr Hudson in the last sentences of his reply).
295) For the moment we do not see any reason why the Council should assume the development of the windfarm in fulfilling its obligations under sections 6 (b) and 75(3). Indeed, the evidence from MRP was that if the Turitea windfarm is developed, it is likely to involve a modification of the consented design. On that basis it is not possible to make assumptions about the effect of future development, which is likely to be contingent on future consents, on the TRLPA values.
296) On the first aspect, the disagreement between Mr Hudson and Mr Coombs on the extent of the TRLPA is confined to two areas. These areas are described as Browns Flat and the South Range Rd area.
297) Mr Coombs summarised his views in relation to these two areas at paras.42 and 43 of his evidence:
42. I can't find any evidence in my own assessment or within the Tararua Ranges detailed assessment sheets that specifically identifies Brown's Flat, or the area to the south of the Pahiatua Track at South Range Road as containing a combination, or in some cases even any, of the landscape values that have led to the wider area being assessed as being an ONFL, as these two areas: Are lesser in height and physical prominence than the highest ridgelines and hilltops of the ranges; Do not have the ecological, transient or coherent values of the wider cloak of indigenous vegetation cover of the upper ranges; Do not have the stronger recreational or shared and recognised values of the wider reserves and parks on the highest parts of the ranges; They don't contain the named peaks or the historical associations which are associated with the highest parts of the ranges: and They do not generally form part of the skyline when viewed from Palmerston North City or from the wider plains of the Region.
43. When measured against the landscape assessment factors recognised by the landscape architecture profession under the RMA and the characteristics and values identified in Schedule G of the One Plan, it is my opinion that neither Browns' Flat nor the area just to the south of the Pahiatua Track at South Range Road make the grade as an ONFL. They have been included as part of a wider landscape, which has wider values, but these areas themselves, do not.
298) Mr Hudson disagreed. It is not necessary to reproduce the detailed assessment appended to his evidence. He made the point that the Region scale assessment undertaken for the One Plan cannot be applied at a district without further localised assessment:
15. When the One Plan Schedule G list includes the series of highest ridges and highest hilltops along the full extent of the Ruahine and Tararua Ranges, the spatial definition of ONFL’s carried out identified by the Territorial Authority may alter, redefine or modify these. That is the purpose of undertaking the detailed assessment according to the Table 6.1 factors.
61 1936
16. The results of this assessment have found that the pastoral rolling hills between the Aokoutere-Pahiatua Track and the Manawatu Gorge do not qualify as an ONFL, despite them being part of the highest ridges and hilltops of the Tararua Ranges. The reasons are fully discussed in the ONFL assessment. Similarly, it has been found that the cadastral area of the Tararua Forest Park (administered by DoC) lies east and south of the Palmerston North City jurisdiction, but that some of the highest ridges and hilltops of the Tararua Ranges do fall within the ONFL. The reason for these conclusions is that when the full range of factors from the One Plan Table 6.1 are considered, the judgement has been made that the collective characteristics are of such quality that their values cause the areas to be of sufficient eminence and significance to be considered outstanding. The spatial extent of these is shown in Figure 2 of my appended assessment.
17. There is no case for their extent to be limited to just the highest ridges and hilltops of the Tararua Ranges – to do so would deny the instructive aspects of 6-7(b) and remove the ability for the Territorial Authority to apply Table 6.1 in determining the spatial extent of the ONFL’s. Blind application of either of these factors would see the pastoral land north of the Aokoutere-Pahiatua Track religiously included and forest land adjacent to the highest ridges and hilltops excluded, both of which are, in my view, absurd.
299) The definition of a particular landscape, in this context at least, is a question on which different experts and lay observers may reasonably disagree. The TRLPA is, physically, a small part of a long mountain range which defines the inland boundary of the west coast of the lower North Island. Part of its character is undoubtedly the visual difference the more open 'windfarm landscape' which extends to the Manawatu Gorge and beyond. The TRLPA is largely, but not entirely, more natural in appearance.
300) The disagreements on definition are, of course, largely at the edges of the TRLPA. The areas covered by the MRP submission are nevertheless substantial. The issue in our view is whether they are visually a part of the outstanding landscape, or rather whether they are so visually different (or perhaps so qualitatively inferior) that they should not be included within the TRLPA. We think that this bigger view is more realistic approach than a smaller scale assessment of these edge areas on their own.
301) Our conclusion is that the areas identified by Mr Coombs are not outstanding in themselves, but they are visually a part of a landscape which, overall, is outstanding.
302) We do not need to resolve the issue as to whether the areas in dispute are within Schedule G of the RPS. Schedule G clearly covers a very large area. If the RPS defines a landscape as regionally outstanding, then we are bound to give effect to that at the City level. But we do not regard Schedule G as exclusive of other landscapes that may be regarded as outstanding at a district level.
303) The requests from MRP are accordingly rejected.
304) John and Kathy Love request the amendment of the TRLPA to remove parts of their land.
62 1937 305) Ms Marr and Mr Hudson concur with this request. We accept Mr Hudson's recommendations at his para.38. The illustration of these recommendation shown in Attachment 1 to his evidence is unfortunately not ideal, and if it is unclear to Mr and Mrs Love we reserve the right the right for them to ask us to better identify the exact boundary of the TRLPA as amended. We move now to a similar issue raised in Mr Wilson's submission.
306) Mr Wilson requests that the Council 'make explicit, and/or clear, the full dimensions of the Tararua Ranges Landscape Protection Area (Map 9.1)'.
307) We agree. Map 9.1 is inadequate for a definition of the TRLPA in this context. Its exact boundaries cannot be ascertained from the Map, and much of the print on the Map is illegible on both the print and web versions.
308) We asked for a new Map 9.1 to be prepared and this is shown in Appendix 1. We also think that the TRLPA should be identified on the relevant Planning Maps as recommended in the section 42A report.
309) However, in our view, this is not simply a mapping issue, and we agree with the recommendation in the section 42A report that the characteristics and values of the TRLPA should also be clarified. This is achieved by an amendment to Policy 7.1 and by the insertion of a detailed Schedule 9.1.
310) The requests from Mr and Mrs Love and Mr Wilson are accordingly accepted.
Activity Status of Windfarms and other development or activity in the TRLPA
311) PC15B classifies windfarms within the TRLPA as non-complying activities. Outside of the TRLPA windfarms are discretionary activities (subject to compliance with a performance standard as to turbine/boundary separation) - this classification is not opposed but the two performance standards are subject to requests for their removal.
312) Meridian Energy and NZ Windfarms oppose the non-complying rule by requesting the removal of the discretionary activity performance standards which triggers it. Giving evidence for MRP, Mr Collins proposed an amendment to performance standard (i) by adding 'except where a consented windfarm is located in this area and there is no increase in the number of consented turbines within the area'.
313) Jill White and Bruce Wilson both request that windfarms inside the TRLPA be classified as prohibited activities.
314) We do not think that classifying windfarms as discretionary activities in the TRLPA is consistent with Objective 7. Objective 7 and Policy 7.3 cannot, in our view, be reconciled with a permissive approach to windfarms. The TRLPA, as an ONL, must be 'protected from inappropriate use and development'. In this context 'inappropriate' must be read as relating to the values which are being protected. Windfarms have the potential to dominate a landscape and to diminish (or at least change) its character.
315) In relation to Mr Collins' recommended exception for a consented windfarm (which would implicitly classify a reconfigured consented proposal as discretionary), we accept Mr Hudson's evidence that the approval of the Turitea windfarm was based, to a significant degree, on location specific assessments
63 1938 of proposed turbines. On that basis we do not agree that Mr Collins' proposal, based simply on turbine numbers (not size or location), creates a sufficient distinction between a consented proposal and a new one. We are mindful of the point that if Turitea is developed then it will likely involve differences with the consented proposal and, if that is the case, in our view the section 104D screen is appropriate.
316) The remaining issue is then whether windfarms should be classified as non- complying or as prohibited activities.
317) If a windfarm is proposed which has adverse effects on the environment which are more than minor, and which is also contrary to relevant objectives and policies then it might be concluded that there is no practical distinction between the two classifications. In these circumstances, if the activity is classified as non-complying then consent cannot be granted, and if the activity is classified as prohibited then consent cannot be sought.
318) While the matter is, in that sense, finely balanced, we accept the logic of Mr Hudson's view that, unless one can completely dismiss the possibility (and he could not) that a windfarm proposal could be developed which did not significantly and adversely affect the landscape values of the TRLPA, then the activity should not be prohibited.
319) In our experience, the scale of modern windfarms suggests the likelihood that any proposal will involve large turbines and large numbers of turbines, and we accept that, in those circumstances, consent would be challenging and probably unlikely. However, if there was to be a proposal which could pass one of the non-complying 'gateways', we see no resource management reason to for excluding an application to have it considered on its merits. (For the submitters' benefit we would note that even a prohibited classification does not 'lock the door' as a private plan change could be requested).
320) We therefore conclude that the non-complying classification proposed by PC15B is appropriate and the requests to amend that proposal are rejected.
321) Other activities have the potential to adversely change the characteristics and values of the TRLPA. Policy 7.2 does not apply only to windfarms, and the explanatory text gives examples of activities which may result in these adverse changes. The Horizons submission notes the omission of any specific controls mechanism to implement this policy and thus give effect to the RPS Policy 6-6.
322) We agree with Ms Marr's recommendation that new non-complying rule 9.9.4 is necessary. This Rule will apply to quarrying, building, and certain levels of earthworks and vegetation clearance in the TRLPA. All of these are activities with the potential to adversely affect the values of the TRLPA and thus be 'inappropriate' in this context. The request from Horizons is accordingly accepted.
64 1939 Repowering
323) A number of submissions request that 'repowering' be classified as a restricted discretionary activity. These submissions were from Mighty River Power and Trustpower. The MRP submission also requested restricted discretionary classification for 'replacement'.
324) There are two aspects to this general submission. First is a request for the classification of repowering; and second is a request that the discretionary classification apply only to 'new' windfarms. The aspects are however related and we will consider them together.
325) We agree with and adopt Ms Marr's introduction to the issue of repowering:
3.2 Repowering is the replacement of existing turbines with new ones, often because the existing turbines have reached the end of their economic life. Because of changes in technology, larger turbines that generate more electricity may be used. Larger turbines may need to be on taller towers, and placed further apart from each other than smaller turbines, to avoid the air turbulence of one turbine interfering with the operation of another. This may require the locations of turbines to be changed from existing configurations. Repowering may result in more or fewer turbines being placed on the site, but usually fewer turbines result because of the need for increased distances between turbines being required.
3.3 The issue of repowering is not specifically dealt with in Change 15B. Any proposal to re- configure, upgrade or significantly alter an existing wind farm, would be assessed under the provisions for wind farms generally. This means that a repowering proposal would be considered a discretionary activity outside the TRLPA and further than 700 metres from neighbouring properties. Within the TRLPA or closer than 700 metres to neighbouring properties a repowering proposal would be a non-complying activity.
326) Before turning to the submissions on his point, it is appropriate to refer to the 'higher' NPSREG and RPS policies which must be given effect to by PC15B.
327) The NPS REG has two particularly relevant policies:
POLICY E3 Regional policy statements and regional and district plans shall include objectives, policies, and methods (including rules within plans) to provide for the development, operation, maintenance and upgrading of new and existing wind energy generation activities to the extent applicable to the region or district.
POLICY C1 Decision-makers shall have particular regard to the following matters: a) the need to locate the renewable electricity generation activity where the renewable energy resource is available; b) logistical or technical practicalities associated with developing, upgrading, operating or maintaining the renewable electricity generation activity;
328) The RPS includes the following:
Policy 3-3: Adverse effects of infrastructure and other physical resources of regional or national importance on the environment:
65 1940 In managing any adverse environmental effects arising from the establishment, operation, maintenance and upgrading of infrastructure or other physical resources of regional or national importance, the Regional Council and Territorial Authorities must: (a) recognise and provide for the operation, maintenance and upgrading of all such activities once they have been established….
329) The NPSREG does not define 'upgrading'. However the RPS provides the following definition:
Upgrade means bringing a structure, system, facility or installation up to date or to improve its functional characteristics, provided the upgrading itself does not give rise to any significant adverse effects, and the character, intensity and scale of any adverse effects of the upgraded structure, system, facility or installation remain the same or similar.
330) Plainly, for the reasons we will discuss below, 'upgrading' cannot be regarded as entirely the same as 'repowering' though there is potential for overlap. The essence of 'upgrade' in the RPS is that it must be 'adverse effects neutral' - that is, not materially different and certainly not materially worse. That is not necessarily the case with 'repowering'.
331) We do not see any relevant NPS or RPS policy basis for treating repowering as a distinct activity which must be enabled by a less demanding classification.
332) Trustpower requests that repowering be classified as a controlled activity, and included a definition within its proposed controlled activity rule as follows:
'Repowering means the replacement of turbines that have reached the end of their economic life with updated turbine technology to continue to make the best use of the available energy resource.'
333) We note that Trustpower's planning witness, Mr Schofield, did not support the requested controlled activity classification.
334) MRP requests that replacement and repowering be classified as a restricted discretionary activity. The definition of both of these terms is contained in the explanation to the proposed new rule. In this explanatory text, 'replacement' is defined as replacement of existing or consented turbines where the number and height of turbines is not increased; in the same text, 'repowering' arises where existing turbines are replaced with larger and more efficient turbines.
335) In evidence for NZ Windfarms Dr Mitchell proposed another definition (at para.70):
Repowering means the replacement of turbines with updated turbines, within the area of the existing wind farm development when the wind farm operator chooses to do so.
336) The three proposed definitions of 'repowering' are substantially the same. All involve the replacement of existing turbines by turbines of potentially larger size and in different locations and numbers. The effects of a 'repowering', in other words, might be significantly different to the original approved windfarm.
337) Mr Collins noted (at his para.9.26) that the consequence of not providing for 'upgrades' as a separate (and lesser classified) activity is to make any upgrade
66 1941 of the consented, but undeveloped, Turitea windfarm a non-complying activity. We have some doubt that the concepts of 'maintenance' and 'upgrading' can be usefully applied to windfarms that have not been built. In substance what is likely with the Turitea proposal is not 'upgrading' but a revised proposal, and we refer to our decision in the preceding section on this issue.
338) In our experience many (if not all) windfarms which have been approved have been subject to an assessment of effects which considers, not just the effects of the whole windfarm, but also often of groups of turbines and even individual turbines. Mr Hudson noted, for example, that the turbines approved in the Turitea proposal were assessed at very specific locations.
339) If the potential effects of a repowering are potentially significantly different from the originally approved individual turbines, groups of turbines or entire windfarm, then we regard it as more akin to a new development than to an upgrade (bearing in mind that 'like for like' replacements - in terms of effects - would be permitted under section 10 unless the term of the land use consent was limited). On that basis, controlled activity status is a misconceived and ineffective method of assessing and managing such an application.
340) The issue is then whether there should be any differentiation between repowering and new windfarms in terms of activity classification. If we accept, as we think we must, that a repowering might be a proposal on an entirely different scale and with significantly different effects than the original, then we do not see why it should be assessed on any different basis to a new proposal.
341) Bearing in mind that the proposed definition of 'windfarm' can include a proposal with relatively small numbers of relatively small turbines, we do not think that there is anything intrinsic in the idea of replacing potentially large numbers of smaller turbines with fewer larger turbines (for example) that suggest a lesser consent classification is appropriate.
342) It may be possible of course that a repowering proposal would involve no substantially new or different effects to those already existing, or that it might indeed involve a reduction in adverse effects (eg Schofield para 8.18). But in recognising that possibility we make two points. First, in such a case, the distinction between restricted discretionary and discretionary would be immaterial. Second, unless such an outcome could be a pre-requisite to a less demanding classification, there is no readily apparent way of ensuring that all relevant factors would be taken into account where discretion is restricted.
343) In our view the concept of repowering as a distinct activity is ultimately unrealistic and untenable. As defined by its proponents, the activity might include a level of redevelopment which would create an entirely new windfarm with significantly different effects from the existing windfarm. We accept the argument that, even where this is the case, the effects of a repowered windfarm on the environment will be effects on an environment which is already affected, or even defined, by a specific windfarm. But that argument, in our view, does not answer the difficulties with the 'lesser' classification of restricted discretionary.
Dwelling setbacks from windfarms
344) PC15B proposes two types of separation between windfarms and other noise sensitive activities. The first is an internal separation under which any
67 1942 windfarm must not be located within 700m of the with another property unless the owner or occupier of that other property consents (Rule 9.8.6 performance standard (ii); similarly Rule 7.16.1.2(g) applies to the creation of any new residential lot)). The second is that no dwelling or noise sensitive activity may be built within 1.5km of any turbine within a consented windfarm (a number of rules, eg Rule 9.5.5 performance standard (b)(i)(c)).
345) No one has opposed a separation distance of some kind. However, a number of submissions request the deletion of the internal setback and/or the replacement of the 1.5km separation with a noise contour line. This noise contour line would be intended to define spatial area beyond which the desirable noise level of 40dB would be reliably achieved - and equally inside of the contour development could only occur in the knowledge that it would receive turbine noise above this level.
346) In the event, the 40dB contour modelled by its proponents generally approximates the 1.5km distance where it is shown in linear form to include all built and consented turbines.
347) Because of the way in which the issue was discussed at the hearing we will assess the noise contour request first.
Proposed noise contour or 1.5km separation?
348) In support of the noise contour approach Dr Chiles said:
'The use of a sound level contour to define a noise control boundary is a common practice for the management of environmental noise. the approach to reverse sensitivity using a 1.5km distance criterion in PC15B is inconsistent with the way the reverse sensitivity controls are structured around sound level contours for other sources such as ports, airports and quarries. I do not consider this difference to be justified, and in my opinion wind farm reverse sensitivity controls should use the same and equivalent approach that is well established through New Zealand for other sources.'
349) Mr Halstead acknowledged (para.40) that the PC15B 1.5km distance had been selected as a compromise between the 1.3 km for a typical windfarm to achieve 40dBA and the 1.8km setback need to achieve 35dBA if a high amenity level is applied. It also reflected the Council's experience with noise complaints at Te Rere Hau. However, at paras.42-50 he explained in some detail how the proposed contour line had been developed and what its advantages are. He concluded:
'I would recommend that the reverse sensitivity boundary that is proposed in the rural subdivision guidelines be based on noise predictions from existing windfarms, rather than on an arbitrary distance to the nearest turbine.'
350) The proposed noise contour developed by Mr Halstead is attached to Mr Botha's evidence. We note that Dr Chiles reviewed Mr Halstead's methodology and endorsed it. Contour lines were also shown in Mr Delmarter's Appendix 4, although there appear to be differences between that 40bB contour and the same contour on Mr Botha's Appendix C.
351) Mr Lloyd maintained his preference for the 1.5km separation. His reasons were set out in his reply at paras.2-12, and these include:
68 1943
Mr Halstead provided no data or modelling report to support his claim that the modelling had been done in accordance with the requirement ofNZS6808:2010. To the contrary both he and Dr Chiles mentioned departures from the standard in the assumptions made about noise propagation that represented a different approach. (para.2)
The fact that there are two sets of noise contours provides me with no confidence that we can rely on either of them. (para.6)
The fact that Te Apiti wind farm is not in the Palmerston North District, in my mind makes it impossible to tie the contour back to Meridian as far as any future changes are concerned, Turitea has not been built yet and Mr Halstead has made assumptions about the noise from turbines that may or may not be installed there, Te Rere Hau is under review and Tararua is set for a repower. All of these factors mean that any noise contour would purport to be more than it could possibly deliver. (paras 8 and 9)
352) We have no difficulty in concept with the idea of a noise contour line, but we do share Mr Lloyd's reservations. We think such a proposal required its proponents to be able to answer Mr Lloyd's understandable request for explanation of the data and modelling used in its development, and also a clear definition of its assumptions and limitations. We accept that the industry itself is (quite appropriately) at the forefront of developing relevant standards and best practice guidance, but the process involved must be an inclusive one. If it is not, it is difficult to dispel any suggestion of mere self interest. We are far from confident that the proposed noise contour lines are yet an acceptable method of achieving a balance between amenity protection and protection from reverse sensitivity effects. We should also note that we did not receive any evidence that similar contours had been adopted by any other local authority or by the Court.
353) The 1.5km separation distance was characterised by or on behalf of some submitters as 'arbitrary'. By that we understood 'arbitrary' to mean 'lacking a sufficient objective basis' (rather than completely capricious). In fact the objective basis for the distance was explained by the Council and obviously understood by Mr Halstead. So we do not accept that this a valid criticism that requires us to actively look for an alternative. Indeed, unlike the noise contour line, the 1.5km distance is empirically certain.
354) Finally, we note that all Plan requirements expressed as measurements are almost inevitably capable of criticism as 'arbitrary' in location specific contexts. But this criticism misses the point that these controls are almost always designed as measures of generally appropriate application and generally effective environmental protection.
355) For these reasons we reject the requests for noise contours to replace the separation distance.
Proposed 700m internal setback
356) The 700m internal setback is, as noted above, a performance standard for discretionary activity classification unless the relevant neighbour consents. If a proposal does not comply with that setback it would be classified as non- complying. It was noted by Mr Delmarter (for Trustpower) that a number of the
69 1944 turbines in the Tararua windfarm are within 700m of the site boundary (these are shown in Appendix 2 of his evidence).
357) The setback has been criticised as lacking in objective foundation. Ms Foster (giving evidence for Meridian) made a detailed critique at paras.14-38 of her evidence. She concludes at para.38:
If Council's concern is to include explicit protection of the acoustic environment of rural dwellers (consistent with Policy 3,1), a rational science based approach would be to specify the NZS6808:2010 noise contour as the standard in R9.8.6 (and I have included suggested wording in my Attachment 1). However my view is that even that is not necessary given the intention to apply NZS6808:2010 as an assessment criterion in any event. It is certainly not necessary to specify a 700m setback in the absence of any issue or policy or explanation of why it is necessary to avoid any adverse effects of windfarm noise within 700m of property boundaries.
358) Mr Lloyd confirmed that the 700m setback was developed by reference to evidence prepared for the Court on Porirua City's Plan Change 7 (paras. 41- 47). In his reply (paras.13-14) his opinion changed to one of substantial agreement with Ms Foster:
I have discussed this rule with Ms Marr and consider that a reasonable approach would be along the lines expressed by Ms Foster for Meridian. On that basis the non-complying status would occur if the predicted wind farm noise level was greater than 40 dBA at the notional boundary of the dwelling. I do not consider that the background plus part of the criteria needs to be included in this trigger because of the complicating factor this provides. If the wind farm noise level exceeds 40 dBA at a dwelling then I consider that this will indicate that the noise levels are likely to be above the base limit as set out in NZS 6808:2010 (5.1.2) and cause internal noise levels to be greater than the standard envisages.
359) While we acknowledge and respect the expert views, our approach is different.
360) It is accepted that the distance at which full windfarm noise will fall below 40bBA is around 1.3km. The distance at which noise from a single turbine may fall to an equivalent level may be around 700m.
361) The required separation distance of 1.5km between any consented turbine and the nearest permitted dwelling is a private cost that benefits the owner of the windfarm which is allowed to 'export' noise onto neighbouring land. It is both an amenity protection and a reverse sensitivity protection. In either case, it is needed because of the windfarm.
362) The NPSREG contains two relevant policies which must be given effect to:
POLICY C2 When considering any residual environmental effects of renewable electricity generation activities that cannot be avoided, remedied or mitigated, decision- makers shall have regard to offsetting measures or environmental compensation including measures or compensation which benefit the local environment and community affected. POLICY D Decision-makers shall, to the extent reasonably possible, manage activities to avoid reverse sensitivity effects on consented and on existing renewable electricity generation activities.
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363) In our view the 1.5km separation distance is a practical and effective way of managing reverse sensitivity effects on windfarms, and gives effect to Policy D.
364) In terms of Policy C2 a potential residual effect of windfarms that cannot be avoided or remedied is noise. The only effective and practical mitigation measure is the distance between the source of the noise and the potentially sensitive recipient of the noise. As we noted above, unless noise ceases to be a concern at the boundary of the windfarm site, then the mitigation cost is borne to a substantial degree by the recipient. We are therefore to have regard to 'offsetting measures or environmental compensation'. 365) The only way in which PC15B provides for such measures or compensation is by the ability of a neighbouring owner to consent to a reduction of the internal setback.
366) If the 700m setback remains then the maximum separation distance of 1.5km between a turbine and a new house can be achieved partly on the windfarm site and partly (to a maximum of 800m) on the adjoining land. The removal of the 700m setback would allow a windfarm developer to place turbines near the boundary of the site. The 1.5km setback for any future development on the adjoining land would then exist entirely on that adjoining land. We do not consider that a fair outcome.
367) We consider it consistent with NPSREG Policy C2 to give the adjoining owner opportunity to 'trade' the 700m setback on whatever basis is mutually agreed between the owner and the developer of the windfarm.
368) We therefore reject the requests to delete the 700m setback as a performance standard.
369) However, we accept Ms Marr's initial recommendation (paras.3.65-3.66) that the setback apply to any turbine rather than to the windfarm itself and performance standard (ii) is amended accordingly. On this basis, the definition of 'windfarm site' is unnecessary and we accept the request by Meridian to remove it.
Rules 9.5.5 and 9.8.7
370) There were submissions requesting greater certainty on the buildings to which the setback applies. As notified, Rule 9.5.5 performance standard (b)(i) applies to 'residential building'. We agree with Ms Marr's recommendation that this should be replaced with 'dwellings or accessory buildings used as sleepouts'. A consequential amendment is required to Rule 9.8.7 so that it applies only to those accessory buildings used as sleepouts.
371) The requests on Rules 9.5.5 and 9.8.7 are accepted to the extent noted above, and in other respects are rejected.
High Amenity Areas
372) PC15B proposes a definition of high amenity area:
…means, for the purposes of NZS 6808:2010, any area identified in the District Plan as a Rural Residential Area or within the Rural Residential Overlay (as shown on the planning maps).
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373) NZ Windfarms requests the deletion of the definition. Mr Halstead's critique of the PC15B approach is at paras.10-27 of his evidence. He concludes at para.28:
In summary, in my opinion it would not be reasonable to impose the high amenity noise limit as a blanket rule across all of the rural residential areas and overlay, as: a) many if not most of the properties do not appear to fit the NZS6808:2010 criteria for doing so; and b) the opportunity to apply this limit on a case-by-case basis is available during a complete assessment of effects.
374) Mr Lloyd considered the definition at paras.12-23 of his evidence. He referred to the Turitea Board's approach, and considered that the same factors were generally present in the areas covered by the definition. In his reply he added further context:
17.The noise criteria in NZS 6808:2010 allows the background sound levels to be assessed and if these are greater than 35 dBA then the stricter noise limit will be overridden. The Standard therefore has an inbuilt safety valve in this respect.
18.Council agrees that the rural residential overlay will not be within the 1.5 km set back and, therefore, the high amenity criteria will mostly be aimed at any new wind farms, rather than existing.
375) NZS 6808:2010 5.3.1 suggests that the windfarm noise limit is appropriate at most noise sensitive locations, but:
'In special circumstances at some noise sensitive locations a more stringent noise limit may be justified to afford a greater degree of protection during evening and night time. A high amenity noise limit should be considered where a plan promotes a higher degree of protection of amenity related to the sound environment of a particular area, for example [where night time noise limits are more stringent than 40dBLaeq(15min) or 40dBA L10]
376) Mr Halstead's point is that this criterion is simply not satisfied in relation to these areas, particularly in relation to Plan noise limits. However, we think that this approach wrongly conflates the criterion with the example. In our view the Plan does intend the Rural Residential areas to have high amenity. It is an approach based on experience. The unfortunate fact is that the Council has spent a great of time dealing with noise issues from windfarms. Indeed, a view that seems to underlie some arguments from both the Council and the REG submitters is that there is a degree of wariness, if not reluctance, to enable further windfarm development in the City
377) So we do not accept Mr Halstead's contention that 'many if not most of the properties within the defined areas do not fit the criteria'. On the contrary, the areas within the definition are both residential and generally well removed from external sources of noise from highways, industry and so on. While Rural areas can be notoriously noisy at times, the kind of noise and its duration is different from that associated with windfarms.
378) We therefore reject the request to delete this definition.
72 1947 379) In relation to NZS6808:2010, we accept that it is a helpful industry standard for measuring the particular noise effects associated with windfarm developments. While we have had regard to it, we are also mindful that it stated purpose (1.1 and 1.2) is to assist the potential noise effects of particular proposals. Nevertheless para. 4.1.3 of the Standard states that 'Where provision is to be made in a district plan for windfarms, any noise limits should be based on those recommended in Section 5 of this Standard'. Although it is not a matter we need to decide, we think that this elevates the Standard beyond any status it might reasonably be given under Part 5 RMA - and indeed we are not convinced that the Standard, in statutory terms, is anything more than a one of the technical documents that may be incorporated by reference under Schedule 1 Part 3. We note that the Standard is referred in one of the assessment criteria in Rule 9.8.6, and we think that that is the appropriate way to use it.
Significant amenity landscapes
380) PC15B proposes a new Section 9 Policy 3.5 as follows:
3.5 To avoid significant adverse visual effects of renewable energy generation activities on regionally Outstanding Natural Features and Landscapes and control adverse visual effects on the remainder of the Skyline of the Tararua Ranges and on the significant amenity landscapes in the Tararua Ranges and its foothills, in particular and the landmark features of Te Mata Peak and Te Mata-Kaihinu Ridgeline.
381) In relation to the significant amenity landscapes no specific rules are proposed. Other than the two features identified in the Policy, there has been no City-wide evaluation and identification of significant amenity landscapes. Submissions requested a range of amendments from definition to deletion.
382) We do not think that either definition or deletion is appropriate. As to the latter, we think that Policy recognition of significant amenity landscapes is entirely consistent with the objective and with section 7 of the Act.
383) As noted in para.272 above, we accept and adopt Ms Marr's assessments and recommendation that Policy 3.5 be divided as shown in Appendix 1 of this decision.
Domestic scale wind turbines
384) PC15B proposes that domestic scale wind turbines (as defined) will be classified as restricted discretionary. The submission from Mr Cole requests that 'micro scale' wind turbines be permitted with an appropriate boundary separation.
385) Ms Marr notes (at paras 3.109-3.110) that the NPSREG and the RPS both apply. The RPS Policy 3-6 suggests, at least, that there would have to be good reasons to restrict smaller scale turbines. We agree with and adopt Ms Marr's recommendation at para.3.115.
386) Our only reservation was that the potential noise effects of micro turbines was not addressed in any evidence, so we do not know if there is any potential cause for concern. We note that the technical report prepared by Mr Lloyd
73 1948 states (in the Introduction) that 'domestic wind turbines would normally be required to meet the District Plan noise limits'.
387) This point is not conclusively established in Rule 9.7.5 which appears (in assessment criterion (e)) to anticipate situations in which compliance with R9.11.1 will not be achieved.
388) Our decision to include micro turbines as permitted under R.9.5.5 is therefore subject to: a) confirmation from Mr Lloyd that the noise limits in R9.11.1 can be applied to micro turbines; and b) that the requirements of R9.11.1 expressly to apply to micro turbines under R9.5.5 failing which R9.7.5 applies
389) As to a) above we emphasised that our concern is not with the general noise limit itself (which should apply) but whether it needed to be expressed in a different way to recognise any characteristic of turbine noise. However, Mr Lloyd subsequently confirmed that the Plan noise limits were an appropriate management method.
Other requests
390) We accept the following requests for amendments to provisions and Maps proposed by PC15 for the reasons given in the respective submissions and in the section 42A report:
a) Mighty River Power: delete requirement in Section 5.4(o)(ii) for a skyline assessment report.
b) Alison Mildon: amend R9.8.6 to cover decommissioning.
c) Bruce Wilson: Fix typo R9.8.6 and require consent from owner and occupier of adjoining land
d) NZ Windfarms: delete Rural Residential overlay from their site
e) Mighty River Power: in all PC15 replace ' renewable energy generation activities' with 'renewable electricity generation activities' or 'the use of renewable energy resources ' as appropriate.
391) Requests for changes to explanatory text are generally related to requests for changes to the provision(s) which need explanation. Ideally, a Plan provision should not require an explanation to understand it, but context and references to other provisions can be useful. We do not think that it is useful or appropriate to use explanations as a means of adding emphasis and/or repeating what the provision itself says.
392) The requests relating to explanations are summarised in Appendix 1 of the section 42A report. We accept those requests to the extent shown in Appendix of this decision. the changes include the generic replacement of 'energy' with 'electricity', and minor changes, as recommended, to the explanations following Section 9 Objectives 1, 3 and 6.
393) Other requests for amendment of explanations are rejected for the reasons given above.
74 1949
394) Trustpower and NZ Windfarms request deletion of the requirement in Section 5.4(o)(iii) for a social impact assessment. New windfarms are typically large scale developments, sometimes controversial, with the potential to create effects on a corresponding scale. In these cases the consideration of effects on a social or community scale may be necessary. The request is accordingly rejected.
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9. Plan Change 15C Boundary Change Area
Background
395) In 2012 an area within the Manawatu District was brought into the City by a boundary change under the Local Government Act 2002. This area is referred to as the Boundary Change Area ('BCA'). In this District boundary change situation, the relevant provisions of the Manawatu District Plan continue to apply to the BCA which had become part of the City and those provisions are deemed to be part of the Council's Plan (see Section 81 RMA).
396) The boundary change was effected by the Local Government (Manawatu District and Palmerston North City) Boundary Alteration Order 2012, and Clause 8 of that Order required the Council to 'promote a plan change' for the newly included areas within 2 years.
397) One of the purposes of Plan Change 15 as a whole is to review the Plan provisions for the BCA. Indeed that is the sole purpose of PC15C which is described in the Section 32 report (at 1.1.27) as 'largely an administrative exercise'. As the Council's section 42A report states:
PPC15C is intended to integrate the Boundary Change Area (BCA) within the PNCC District Plan framework by applying the Palmerston North zones and provisions to the BCA that are equivalent to those that currently apply in the Manawatu District Plan. (Lucy Cooper evidence at para.18)
398) This part of the decision deals only with the 'administrative' aspects of PC15C which will be introduced below. Specific requests for changes to zoning of particular land within the BCA are considered in Part 15 of this decision. And of course significant proposals for change within the BCA are considered in Plan Changes 15A, 15D, 15E, 15F and 15G.
The PC15C provisions in brief
399) The specific changes proposed by PC15C are listed at pages 104-121 of the Section 32 report and helpfully summarised in the section 42A report as follows:
Proposed Plan Change 15C focuses on the administrative aspects of the boundary change area and seeks to: Review and update Chapter 20 – Transportation – of the District Plan to include specific information about the road network in the BCA; Amend Appendix 20A and accompanying Figures and Planning Maps to give effect to the requirements of the Regional Land Transport Strategy (2010); Provide new access rules for arterial and collector roads in the BCA, and new access standards for rural roads; Update Appendix 17A – Schedule of Buildings and Objects of Cultural Heritage Value (Category 2) to incorporate heritage buildings and objects into PNCC boundary that were formerly within the MDC boundary; Update Appendix 24A – Schedule of Designations to ensure that current designations remain in place and are referenced accurately and appropriately; and Implement the requirements of Requiring Authorities in the BCA in accordance with the process prescribed under Clause 4 of Schedule 1 of the RMA. (Lucy Cooper evidence para.80)
76 1951
400) The proposed changes are relatively uncontentious, being largely concerned (as noted) with bringing existing MDC provisions into the framework of the City's Plan. However, there were a number of submissions which will now be outlined.
Submissions
401) As noted above, in this part of the decision we have not included those submissions which requested the rezoning of particular land within the BCA. The rezoning requests are considered at in Part 15 of the decision at paras. 911-998.
402) The following submissions concern aspects of PC15C other than rezoning:
1. Mr AR Renquist (for Sustainable City Group): general support for PC15C. 2. Federated Farmers of New Zealand Manawatu Rangitikei Province: while PC15C is mentioned, no request is made and we are doubtful that this submission is on PC15C. 3. New Zealand Fire Service Commission: supports inclusion of Bunnythorpe Fire Station in the Institutional Precinct Zone and the reference to it in Section 19.2 Resource Management Issues. 4. Transpower: supports 5. Powerco: supports 6. Fonterra: supports 7. Radio New Zealand: supports and requests correction of description of designation 8. New Zealand Transport Agency: supports a number of provisions and requests some minor amendments 9. The Manawatu-Wanganui Regional Council (Horizons) 10. Kiwi Rail Holdings Ltd: supports a number of provisions, requests a correction to the name in the Table of designations, and requests a range of new and amended provisions
403) No assessment is required of submissions 1-6 above. Submissions 3-6 support specific provisions and no further submissions in opposition were received on these points. As a matter of formality, the requests referred to in submissions 3-6 are accepted, and submissions 1 and 2 do not require any decision.
Hearing
PC15C was heard on 28 October 2015.
404) Council was represented by consultant planner Lucy Cooper who was the author of the section 42A report. She also spoke in reply and sent a further memorandum on 22 December 2015 in relation to her recommendation on the NZTA submission.
405) A submitter on PC15C in relation to rezoning, JP Ware Transport Ltd was heard. The same submitter was heard again in relation to rezoning requests, and the decision on that request is at paras.921-933.
406) No other submitter attended but further material was received from:
77 1952 a) Radio New Zealand - confirming agreement with s.42A recommendation on its submission. b) Horizons - 'not entirely satisfied' with mapping of Horizons designations but accepts that until survey and accurate mapping are completed the maps are generally adequate. c) KiwiRail Holdings Ltd: evidence from Rebecca Beals. This evidence was presented again in the PC15G hearing and it is considered under that heading in this decision.
407) Following the hearing we received a memorandum from Lucy Cooper in relation to questions from the commissioners to her at the hearing on the KiwiRail submission. The two aspects to these questions were, first, in relation to the provision for private rail sidings, and second, in relation to whether a request for a City wide amendment to Rule 20.3.9.1 was within the scope of PC15C. Both of these matters are considered under the part of this decision on PC15G Utilities.
Assessment
Submissions on designations
408) The Radio New Zealand submission requests a change, or correction, to the description of its designation (noted in Table 1 Section 24) by the addition of the words 'and land uses'. These words appeared in the MDC designation for the site but were omitted from the 'roll over' request. We accept that the intention was to roll over rather to modify. The request is therefore accepted.
409) The NZTA submission is expressly supportive of a number of provisions (listed in Appendix 2 of Ms Cooper's report) but makes two specific requests for change:
1. The removal of the reference to NZTA in Note 5 in Appendix 20A Roading hierarchy. 2. The addition of SH54 to Table 1 item 15 Schedule of Designations in section 24.
410) We accept both requests for the reasons given in the submission.
411) The Horizons submission is supportive of a number of provisions, but has requested two changes:
1. a different representation of the stopbank designations applying to the BCA - so that the mapping is 'consistent with the information supplied to PNCC and dispalyed on the Horizons asset maps'. 2. a Note to Table 1 Schedule of Designations in Section 24 drawing users' attention to One Plan Rule 17-15 relating to works on stopbanks.
412) We agree with Ms Cooper's analysis of these submission points at paras 72-79 of her evidence. The Maps need to be read with the description of the designation and, to a degree, the physical appearance of the works in their location. We acknowledge that complete survey work has not been undertaken and that the Maps are not always easy to follow, but we conclude that, taken together, the provisions in the Plan are adequate. We therefore accept the request for the proposed note to Table 1 and reject the request for changes to mapping on Maps 6 and 12.
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413) The KiwiRail submission requests that the name of the requiring authority in its designation in Table 1 item 3 be changed to 'KiwiRail Holdings Ltd'. We accept that request.
414) As noted above the KiwiRail submission makes other requests which are assessed elsewhere in this decision - under PC15G for the proximity of access ways to rail crossings and under PC15A for provisions relating to private sidings and reverse sensitivity.
Decisions
415) The submissions on PC15C are accepted or rejected for the reasons given above.
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10. Plan Change 15D Flood Hazards
Background
416) Plan Change 15D is both a review of the provisions of the Flood Protection Zone ('FPZ') and a proposal to introduce a Flood Prone Areas Overlay ('FPA') which affects mostly Rural zoned land.
417) The FPZ provisions are in Section 22 Natural Hazards. The Zone itself applies mostly to land adjoining the Manawatu River, and PC15D proposes to add the Flygers Line Floodway to the Zone.
418) The FPA relates to areas which would be flooded in a 0.5% AEP flood event, and are shown on relevant Maps.
419) To a significant degree, the new provisions are intended to give effect to the relevant requirements of the One Plan which have come into force since the current Section 22 provisions.
420) Of the 14 submissions that specifically concerned PC15D, none requests any substantial change of approach.
PC15D provisions in brief
421) Most of the provisions are in Section 22 Natural Hazards. Changes are also proposed to Section 4 Definitions, Section 7 Subdivision and Section 9 Rural. The principal elements are as follows:
422) New policies Section 22: Policies 1.3, 2.3 and 2.4 address the identification of and control of development within the Flood Protection Zone, Flood Prone Areas and the Flygers Line Floodway.
423) New rules Section 22: are generally amendments to give effect to these new Policies, including amendment to Rule 22.7.3.1 to include development within the Flygers Line Floodway as a non-complying activity.
424) New rules Section 7: Rules 7.15.2.1 and 17.7.1 manage subdivision within the Flood Protection Zone and within Flood Prone areas respectively.
Submissions
425) Submissions on PC15D were received from the persons and organisations listed below. Though we have listed those who attended the hearing or sent further material first, we have taken all submissions into account and assessed all relevant requests.
a) Manawatu-Wanganui Regional Council ('Horizons'): generally supportive but requests changes to a number of rules and notes. b) Powerco: submission is generally supportive but requests changes to Section 22 Policy 2.1, Rule 22.7.3.1 and Rule 22..8.2.1. c) Trustpower: supports new definition of 'critical infrastructure'. d) Heritage Estates: requests removal of specified land from the FPA, and amendment to the definition of 'flood prone area'.
80 1955 e) Pioneer City West: requests removal of specified land from the FPA, and amendment to the definition of 'flood prone area'. f) Radio NZ: submission is generally supportive but requests clarification of the definition of 'occupied structure or activity' g) Higgins Aggregates: requests a number of changes related to the operation of quarrying activities in the FPZ. h) Mr PH Pirie: requests deletion of Rule 7.17.1.1 i) Kevin O'Connor & Associates: requests clarification of Map 22.8 which cannot be found. j) Federated Farmers Manawatu Rangitikei Province: requests amendment to Rule 7.15.2.1 to include agricultural activities. k) Transpower: requests amendment to Rule 22.8.1.1 (i) by removing 'on production land' after 'non-habitable structures'. l) Palmerston North City Council: requests that the underlying zoning for part of the Horizons Mangaone Stream designation be changed from Rural to Flood Protection. m) Mr PA Cole: this submission requests amendment to the map showing the extent of the 0.5% AEP flood risk on his land to be consistent with Horizons data for the same risk and land. n) Mr FK Setter: requests that his property be removed the flood prone area map.
Hearing
426) PC15D was heard on 29 October 2015.
427) Council was represented by consultant planner Rowan Sapsford who was the author of the section 42A report.
428) The following submitters attended the hearing and presented evidence:
a) Horizons: represented by Peter Blackwood (Manager Investigations and Design), Ashleigh Gulliver (Coordinator District Advice) and Penelope Tucker (Planner); b) Pioneer City West and Heritage Estates: represented by Lisa Poynton (consultant planner) and John Philpott (consultant engineer); c) Higgins Aggregates: represented by Rob Paddison (Group Manager).
429) Further material was received from:
a) Powerco - statement from Mark Laurenson (consultant planner). b) Transpower - statement from Sarah Shand (Environmental Planner).
430) Following the hearing we received supplementary evidence from Lisa Poynton on behalf of Pioneer City West and Heritage Estates. This supplementary evidence related to an 'agreement' between Council and Horizons on a further performance standard to meet a Horizons request - Ms Poynton had been unaware of this until the hearing and thus unable to address it in her main evidence.
431) All of this evidence and further material is referred to below in our assessment of the respective requests.
81 1956 Assessment
432) As with other parts of PC15, we have not addressed submissions (or aspects of submissions) which simply express general support. Instead, our assessment relates to requests for changes to the content of PC15D. We have grouped the various requests made in submissions into the following topics:
Policies Definitions FPA extent - mapping Rules Other
Policies
433) PC15D does not propose and new objectives, but does propose 3 new policies (1.3, 2.3 and 2.4) and an amendment to Policy 1.2.
434) The only submission containing a request on these policies is from Powerco. Powerco requests an amendment to Policy 22.2.1. Mr Laurenson's statement (made with the benefit of access to Mr Sapsford's evidence) does not specifically address this aspect of the submission. However, it is addressed by Mr Sapsford at paragraphs 5.84-5.90 who recommends that it be accepted with minor modifications in wording. He points to One Plan Objective 9-1 as requiring consideration of the effects of natural hazards. We agree with Mr Sapsford's analysis and with his recommended amendment to Policy 2.1.
435) Mr Sapsford also recommends a new Policy 2.5 to address a request by Horizons that subdivision for infrastructure under Rule 7.15.1.1 be reclassified as restricted discretionary. While we understand his concern at the absence of a specific policy, we do not think a very specific request to change a rule in Section 7 can be used as a basis for adding a new policy into Section 22. If the Council considers that new Policy as recommended is necessary, it will need to follow the Schedule 1 process for variation or change as the case may be. We agree with Mr Laurenson's reservations. Accordingly, the recommended Policy 2.5 is not accepted.
Decision
436) The request by Powerco to amend Policy 1.2 is accepted with the wording recommended by Mr Sapsford.
Definitions
437) A number of submissions requested changes to definitions.
438) The relevant definitions are 'flood prone area' (Heritage Estates and Pioneer City West) and 'occupied structure' (Radio NZ and Higgins).
439) Trustpower and Powerco both supported the definition of 'critical infrastructure', however this does not require any decision from us.
440) Flood Prone Area: Mr Sapsford has recommended that the requested change to 'flood prone area' be accepted. We agree and conclude that it is important
82 1957 for the definition to include the basis on which land is deemed flood prone as well as identifying the areas affected on relevant maps. As between Mr Philpott and Mr Sapsford there is a small but potentially important disagreement over the use of the word 'known' and the level of certainty which can be attributed to the current information. We prefer 'likely', and the definition should be worded on that basis.
Decision
441) The requests from Heritage Estates and Pioneer City West are accepted and the definition of 'flood prone area' is amended as recommended in para. 5.18 of Mr Sapsford's evidence but with the substitution of 'likely' for 'known'.
442) Occupied structure: the definition is in 2 parts. First, it includes 'structures or activities where people sleep or work'. Second, it does not include 'non- habitable structures or activities' on production land. We read the first part of the definition as being subject to the second as the latter is more specific. We note that 'non-habitable structure' is also defined as a building or structure which is 'unoccupied' or 'where people will not sleep'.
443) The Radio NZ submission makes 2 requests. First remove the reference to the RMA definition, and second cross reference the 'occupied structure' definition to the 'non-habitable structure' definition.
444) The Higgins submission raises a concern that aspects of quarrying, such as a batching plant, could be regarded as a habitable structure. No specific wording was sought in the general request, but Mr Paddison proposed a further exclusion in the second part of the definition to cover quarrying activities.
445) In assessing this definition we must look at the context in which it arises.
446) First, Council is required to give effect to a One Plan policy (Policy 9-2). This is a lengthy policy, and the relevant part is as follows:
Policy 9-2: Development in areas prone to flooding
(a) The Regional Council and Territorial Authorities must not allow the establishment of any new structure or activity, or any increase in the scale of any existing structure or activity, within a floodway mapped in Schedule J unless: (i) there is a functional necessity to locate the structure or activity within such an area, and (ii) the structure or activity is designed so that the adverse effects of a
0.5% annual exceedance probability (AEP) (1 in 200 year) flood event on it are avoided or mitigated, and (iii) the structure or activity is designed so that adverse effects on the environment, including the functioning of the floodway, arising from
the structure or activity during a flood event are avoided or mitigated, in which case the structure or activity may be allowed. (b) Outside of a floodway mapped in Schedule J the Regional Council and Territorial Authorities must not allow the establishment of any new structure or activity, or an increase in the scale of any existing structure or activity, within an area which would be inundated in a 0.5% AEP (1 in
200 year) flood event unless: (i) flood hazard avoidance is achieved or the 0.5% AEP (1 in 200 year) flood hazard is mitigated, or
83 1958 (ii) the non-habitable structure or activity is on production land, or (iii) there is a functional necessity to locate the structure or activity within such an area, in any of which cases the structure or activity may be allowed. (c) Flood hazard avoidance must be preferred to flood hazard mitigation.
447) Second, for the purposes of PC15D, the definition applies to FPZ and FPA activities covered by rules in Section 22 and subdivisions covered by rules in Section 7.
448) The more stringent part of One Plan Policy 9-2 applies only to floodways identified in One Plan Schedule J. Only one of these is floodways is within the City and that is the Flygers Line floodway which is now within the FPZ. All other FPZ and FPA areas are subject to the less stringent part of the Policy - (b). This is where the expression 'non-habitable structure' is used. It is not defined in the One Plan.
449) In our view, a non-habitable structure is one which is not designed, or used, for people to live in. The proposed definition in Section 4 (which seems unnecessary but has not been challenged) generally accords with this understanding.
450) Before assessing the requests on the definition of 'occupied structure or activity' we note that the concept of an occupied 'activity' appears redundant. The relevant rules are aimed at structures, not activities. We cannot see any basis on which the activity of 'occupying' land, as distinct to using it, should be the subject of Plan controls.
451) The concept of an occupied structure appears to be intended to include work places. This is problematic, as even a storage shed is likely to be used by people in the ordinary course of work or living. Mr Sapsford proposed an amendment to the definition which would make a structure 'occupied' when people work or reside in it for at least 6 hours in any 12 hour period. We accept the intent to create some flexibility, but all it does is illustrate the difficulty of applying the concept without resorting to extensive and ultimately arbitrary definition. This, in our view, is usually a strong pointer to a problem with the concept itself.
452) We have concluded that the definition is unnecessary because, in this context, the concept of 'occupied structure' is both unnecessary and probably unworkable.
453) Dealing first with subdivision, and Rules 7.15.2.1 and 17.7.1.1, Section 7 Objective 3 and Policy 3.3 enable subdivision in the FPZ where no 'residential occupancy' will be established, and Section 7 Policy 3.5 and section 22 Policy 2.3 both require control of subdivisions within FPA. Notwithstanding our comments on the workability of including land use controls within subdivision rules, we think that both these Rules create an activity classification distinction between subdivision which will allow habitation and subdivision which does not.
454) As noted below, we think that the better distinction is between habitable and non-habitable structures. In the FPZ a habitable structure is itself a non- complying activity under R22.7.3.1. On that basis R7.15.2.1 is amended by replacing 'occupied' with 'habitable' (and we note that this requirement could be recorded in a consent notice if a subdivision is approved under the Rule). In
84 1959 R7.17.1.1 the expression 'occupied structures or activities' is replaced with 'habitable structures' (and any consequential grammatical changes).
455) Moving then to land use controls in Section 22, the issue is whether the relevant rules on the FPZ (Rules 22.7.1.1 and new 22.7.2.2) and FPA (Rules 22.8.1.1, 22.8.3.1 and 22.8.4.1) require the 'occupied' concept. In our view, a simpler and more workable concept is available. In all these rules, the word 'occupied' can be deleted and replaced with 'habitable' wherever it occurs without affecting their respective meanings. As noted above the use of 'activity' in this context is unnecessary. The amended rules still give effect to the One Plan.
Decision
456) For the reasons given above, the requests by Radio NZ and Higgins are accepted by deleting the definition of 'occupied structure or activity' and amending the rules where this expression (or 'occupied structure') appears as outlined above and shown in Appendix 1.
FPA extent - mapping
457) Submissions from Heritage Estates, Pioneer City West, Mr Cole, Mr Setter and Mr Pirie all request the removal of land from the FPA overlay or the FPZ.
458) PCB land: The requests from Heritage Estates and Pioneer City West relate to the same land and can be assessed together. We can refer to the land as the PCB land.
459) Mr Philpott's contention is that the modelling used by the Council becomes less accurate and less reliable at the edges. He thinks that the FPA should be removed for the land. Mr Sapsford's assessment of the request is at paras. 5.33-5.35 of his evidence. He relies on the Horizons modelling, but notes 'that drainage work undertaken when development occurs may reduce the extent of this floodable area'. The land, as noted elsewhere in this decision, is subject to an application for a private plan change.
460) While we accept Mr Philpott's reservations as to the accuracy of the modelling at the margins of any FPA, we are satisfied that the Council must use the best information it has, and that it has done so. The consequences of modelling a FPA are not, as Mr Philpott says, that land development will necessarily be limited. Instead, development will need to consider the extent of any flood risk and the best way of managing that risk - which might include a range of responses from drainage work to avoiding development. In this respect, the amended FPA definition successfully requested by the submitters makes it clear that flood risk is a matter which must be objectively assessed rather than simply defined by mapping.
Decision
461) For the reasons given above we reject the request to remove the PCB land from the FPA.
462) Cole land 378 Waughs Road: Neither the submission nor the report actually identifies the location of the land. Mr Cole did not attend the hearing. We are not sure whether he is the owner or the owner's representative (the submission
85 1960 refers to the 'applicant'). The submission requests that the FPA be shown consistently with the Horizons projections (ie spatially more constrained).
463) The short point is that 2 different models show 2 quite different flood risks for the land. In the absence of any other information, we are left with Mr Sapsford's assessment that the one used better reflects the actual risk.
Decision
464) For the reasons given above, the request is rejected.
465) Setter land 718 Rangitikei Line: Mr Setter's argument is that the proposed works will remove the risk of flooding and that the FPA overlay should be removed from his land. Mr Sapsford's view is that until the work is completed (and the Council cannot simply assume it will be) the land remains flood prone and should be recorded as such.
466) Since the hearing, the issue has been resolved by the completion of the proposed work. This was confirmed by Horizons on 2 June 2016, and Mr Sapsford confirmed on 21 June 2016 that the land should no longer be shown in the FPA. The land is therefore removed from the FPA and Mr Setter's submission is accepted. Planning Map 3 is amended accordingly.
467) Pirie submission - land at Shirriffs Road: Mr Pirie's submission (point 3) is that the extent of the FPZ at the end of Shirriffs Road is incorrectly shown. Mr Sapsford agrees and recommends an amendment to Map 30 as shown in Map 3 of his evidence. We accept this recommendation.
468) Decision: the request is accepted for the reasons given at paras. 5.45-5.46 of Mr Sapsford's evidence.
Rules
469) Submissions make requests to amend a number of rules and/or accompanying explanations and notes in Sections 7, 9 and 22. The largest number of requests have been made by Horizons involving, in some cases, separate requests on the same rule. These requests from Horizons are best considered separately as they frequently involve the issue of consistency with the One Plan. For the purposes of assessment we have therefore arranged the submission requests into the following categories:
1. requests on Section 7 rules 2. requests on Section 22 rules 3. requests by Horizons on rules 4. requests by Horizons on notes to rules
Section 7 Rules
470) In the previous section we referred to the difficulty of the hybrid subdivision and land use controls proposed in PC15D. Simplistically, this can be characterised as classifying subdivision according to a land use purpose. We have some doubts as to whether this is lawful, and reservations as to its general workability - such as where a subdivision is approved to enable a particular activity which is then discontinued. During the hearing we understood the
86 1961 Council position (via David Murphy) to be that it no longer supported these hybridised rules.
471) However, Policy 3.2 does envisage circumstances in which the general 20ha minimum lot size may not apply. There is a generic recognition in Policy 3.2(a)(viii) and a recommended Policy 3.2(b) which specifically applies to subdivision to enable acquisition or disposal for public works, network utilities or quarries. In our view these are sufficiently distinct and special to warrant recognition. We accept recommended Policy 3.2(b) and its recommended implementation in Rule 7.16.1.2(b).
472) This conclusion directly answers the Higgins submission requesting provision for its activities in Rules 7.15.2.1 and (recommended) 7.15.3.1. Rule 7.15.2.1 is amended, as shown in Appendix 1, by deleting all references to activities and by also deleting the second bullet point. It follows that recommended Rule 7.15.3.1 is not accepted.
473) This raises an issue of consistency with Rule 7.15.1.1 which is amended to read as follows:
Any subdivision proposed by a network utility operator where the maximum area of the allotment dos not exceed 200m2, and the relevant network utility is either permitted, designated or has been granted land use consent, is a controlled activity in respect of:
The size, shape and arrangement of the lot and the access thereto.
474) The Federated Farmers submission requests an amendment to the explanation following Rule 7.15.2.1 and also to the explanation following Issue 7.2.2, by adding 'and agricultural' after 'horticultural'. Notwithstanding our conclusions above on the rule itself, we think that the requested amendments better reflect the Council's intention with the relevant provisions.
475) The Pirie submission requests the deletion of Rules 7.17.1.1 to 7.17.1.3 on the basis that all land use matters can be considered within the Rural Zone provisions. Mr Pirie did not attend the hearing and we did not receive any further information from him.
476) We do not accept that these rules deal directly with land use matters. They do not hybridise the two different kinds of consent in the way referred to above. We think that all 3 rules are generally appropriate to proposed subdivisions in the relevant areas. We have no doubt that the National Grid corridor and substations bring specific issues which do not exist elsewhere.
477) However, as with other subdivision rules, we do not regard generic reference to sections 108 and 220 as appropriate to a statement of the ambit of discretion, and we recommend that Council review the utility of these references.
Decision
478) The requests considered above from Higgins, Federated Farmers and Mr Pirie are accepted, accepted in part or rejected for the reasons given on each.
87 1962 Section 22 rules
479) Powerco and Transpower have made submissions requesting various changes to Rules 22.7.1.1, 22.7.3.1, 22.8.1.1 and 22.8.2.1.
480) Powerco requests the addition of 'critical infrastructure' provisions in the above rules (excluding 22.8.1.1) - in the former to enable the continued operation and maintenance of existing structures, and in the latter to expressly classify proposed new structures. It also requests a note which contains a cross reference to section 23 Utilities.
481) Transpower requests the classification of non-habitable structures as permitted activities in any FPA (ie not restricted to production land). This constraint is in Rule 22.8.1.1.
482) We accept or accept in part the Powerco requests for the reasons given in its submission. They have been recommended in substance by Mr Sapsford, and we adopt his proposed wording. We are satisfied that the proposed amendments are consistent with One Plan policy 9-3.
483) We accept the Transpower request. Mr Sapsford correctly points to exception (ii) in One Plan Policy 9-2(b) as requiring that non-habitable structures be limited to production land. However, (iii) also requires consideration of functional necessity, a matter which is undoubtedly relevant to Transpower. More importantly, 'Production land' is defined in s.2 RMA in a way which, on its face, will include virtually all land in the Rural Zone. We doubt that any distinction between 'production land' and 'land in the Rural Zone', if there is one, is workable. Because the FPA overlay applies to land in the City which is either zoned Rural, or appears to remain production land with some other zoning, we conclude that the request by Transpower is not inconsistent with policy 9-2(b)
Decision
484) The requests from Powerco and Transpower considered above are accepted or accepted in part for the reasons given.
Rules - Horizons requests
485) The Horizons submission requests changes to the following rules listed below. we have assessed each request in turn
1. new Rule 22.8.2.2 - similar to R 22.8.2.1 but applying to any land assessed as being subject to inundation in a 0.5% AEP flood event. We agree with Mr Sapsford that this request should not be accepted and adopt his assessment at paras.5.78 - 5.80. We have considered carefully the views expressed by Mr Blackwood and Ms Tucker to the contrary. However, we do not think that such a rule would be good resource management practice because of the uncertainty and costs that it would involve, and, for similar reasons, we also have reservations about its validity.
2. Rules 22.7.1.1 and 22.8.1.1 - amend to include a performance standard that any non-habitable structure must not divert water into existing occupied structures. We note that Mr Sapsford's assessment and
88 1963 recommendations on this request are accepted by Horizons, and on that basis, we do not need to consider what appears to be a fairly complex solution. It is agreed that Mr Sapsford's proposed separation distance will generally achieve the same outcome with greater certainty of application. A default to controlled activity status is appropriate. We therefore accept Mr Sapsford's recommended changes at para. 5.107.
3. Rule 7.15.1.1 - reclassify subdivision for utility purposes as restricted discretionary. We have assessed and decided the 'hybrid' Section 7 rules above. In our view, land use controls should not be in Section 7 and we accordingly reject this request for the same reasons.
4. Rule 22.8.2.1 - amend performance standard (b). This is a complex request and we accept Mr Sapsford's assessment and alternative recommendation. Horizons did not specifically refer to the issue in evidence and we assume that it is comfortable with Mr Sapsford's approach. Accordingly, we accept the changes recommended at para. 5.178 of Mr Sapsford's evidence.
5. Rule 22.8.2.1 - amend assessment criteria (ii). Again we note agreement between Mr Sapsford and Horizons (Ms Tucker para.26) and accept the recommendation at page 53, with the addition that (iii) should also be amended in the same way as proposed by Ms Tucker.
Decision
486) The request referred to above are accepted, accepted in part or rejected for the reasons given.
Notes - Horizons requests
487) The Horizons submission made a number of requests to change or delete notes in a number of provisions in sections 7 and 22 which suggested that it exercised a consenting function in relation to subdivision or land use.
488) These requests are identified and assessed by Mr Sapsford at paras. 5.159 - 5.173. The purpose of notes is to assist users of the Plan and, in particular to draw attention to other relevant Plan provisions or laws. Notes are not a requirement of the Act and are generally not of high importance. However, where they are used, notes should be accurate (and indeed notes should be avoided when there is a risk that over time they may no longer be accurate).
489) On that basis we agree with Mr Sapsford's assessment and his recommendations in the paragraphs above.
490) The Horizons submission also made a request to add a note to Rule 9.5.5. drawing attention to rules in Section 22. This is discussed at paras. 5.68 -5.69 of Mr Sapsford's evidence. as above we agree with Mr Sapsford's assessment and adopt his recommendation.
Decision
491) The requests in the Horizons submission are accepted for the reasons given above.
89 1964 Other
492) There are 2 submissions in this category. The Council submission requests a change to the underlying zoning of the Mangaone Stream designation from Rural to FPZ. The Kevin O'Connor submission requests clarification of 'Map 22.8'.
493) Both submissions identify errors which should be corrected. Accordingly, the underlying zoning shown on designation 85 is changed from Rural to Flood Protection Zone. The reference to Map 22.8 in the note to Rule 7.17.1.1 is deleted as the map does not exist. The note is amended as recommended by Mr Sapsford at para. 5.59 of his evidence.
Decision
494) Both requests are accepted for the reasons given above
90 1965
11. Plan Change 15E North East Industrial Zone and Extension Area
Background
495) There are two distinct but related purposes of PC15E. The first purpose is to review Operative District Plan Section 12A North East Industrial Zone ('NEIZ'). The second purpose is to rezone 126ha of land currently zoned Rural to NEIZ - this land is referred to as the 'Extension Area'.
496) The land within the NEIZ is located, as its name suggests, in the north east of the City close to the Airport and to state highway and rail links. When created in 2004, it was intended to meet demand for very large (>5ha) industrial sites, and the advantages of its location close to transport networks are enhanced by separation from residentially zoned land. In 2004 the area of land within NEIZ was just under 95ha. A further area of some 12ha was added by a private plan change in 2010 - the additional area is known as the Scheduled NEIZ. This distinction will disappear under PC15E.
497) In 2004 the expectation was apparently that the land zoned NEIZ would be sufficient to meet the demand for industrial land in the City for the next decade. In fact, most of the NEIZ remains undeveloped after a decade, and the Scheduled NEIZ is completely undeveloped. (According to the Argosy Property Ltd submission some 62ha remains available for sale and development, with a current uptake of 3-4ha pa). There is likely to be a variety of reasons for this: the original projection may have been too optimistic; there was a significant economic slowdown; the land was apparently only available on leasehold terms, initially at least; and a significant part of the land is in one ownership.
498) The proposed Extension Area is larger again. Currently it is a mix of smaller to medium sized blocks, containing, overall, a number of dwellings. Clearly, given the historic rate of development of NEIZ, significant development of the Extension Area is some years away. It is described as a strategic initiative to ensure that the City has long term expansion capacity for industrial development. PC15E does not anticipate any specific staging of the Extension Area, and there is no barrier, in Plan terms, to its development concurrently with the undeveloped balance of NEIZ. The major factors in the development of the Extension Area will be the availability of infrastructure, the management of stormwater and, of course, the availability of the land itself as and when individual owners decide. The first two of these factors make it highly unlikely that development would occur in a piecemeal or ad hoc way.
499) There were a number of submissions on PC15E. None opposed the continuation of the NEIZ. Two opposed the Extension Area - one on the basis that the City has sufficient Industrial zoned land for its foreseeable needs, and the other on amenity grounds.
500) Prior to the hearing, in September 2015, and following the hearing, in January 2016, we visited the general NEIZ and Extension areas, looking specifically at the land and features which had been identified in submissions or at the hearing.
91 1966 The PC15E provisions in brief
501) The relevant provisions are largely contained within Section 12A, though there are proposed amendments to Section 4 Definitions (introducing new definitions), Section 7 Subdivision (amended Objective 5 and its policies), and the Section 20 Transportation (proposed new carparking standards and car park design).
502) Because the Extension Area is 'greenfield', subdivision and development is to be managed in a different way: all subdivision and development is classified as restricted discretionary.
503) The changes are summarised in paragraphs 1.10 - 1.21 of Mr Ferguson-Pye's evidence within the section 42A report. The proposed changes to Section 12A include: new policies for the NEIZ; a range of new or amended performance standards; removal of redundant provisions; classification of development within the Extension Area as restricted discretionary activity (industrial activities being generally permitted in the NEIZ);provisions to protect neighbouring amenities and to support structure planning.
504) The proposed changes to Section 7 include: amended Objective 5 and, for the Extension Area, new Policies 5.4 to 5.11. amended Rule 7.9.1.2 adding a new performance standard for controlled activity subdivision in NEIZ amended Rule 7.9.2.1 classifying subdivision in the Extension Area as restricted discretionary; new Rule 7.9.3.2 classifying any NEIZ subdivision proposing access to specified roads as discretionary.
Submissions
505) The persons listed below made submissions on PC15E. Whilst we have listed those who attended the hearing and/or sent in material for us to consider separately from those who did not attend and did not provide further material, we confirm that we have considered all submissions.
506) Attended hearing or sent written evidence/material:
David and Robyn Adam, Hercoe Family Trust and David Severinsen: these submissions were jointly represented by Mr Adam. Argosy Property Limited (APL): Ms Sue Simons made legal submissions in support of the APL submission, and Ian Brown, Philip Osborne and Matthew Norwell gave evidence. NZ Fire Service Commission: written statement received from Claire Fell: this submission is considered and determined at paras.1014-1030 of this decision. Federated Farmers Manawatu – Rangitikei: written statement received from Coralee Matena. Manawatu - Wanganui Regional Council: represented by Ashleigh Gulliver. Powerco: Mark Laurenson, planning consultant, sent a written statement.
92 1967 Proarch Consultants Limited: represented by Amanda Coats - this aspect of the submission is considered and determined at paras.1014-1030 of this decision. Frederick Joseph Setter: Mr Setter represented himself . PNCC: evidence in support of the Council submission was provided in the section 42A report.
507) Did not attend hearing: David Morrison Jane Richardson Brian Holmes Brian Green Properties (PN) Limited NZ Defence Force Vector Gas Limited Pita & Helen Kinaston Anne J Milne NZ Transport Agency Hearing
508) PC15E was heard on 14 and 15 October 2015. The submissions listed in para.506 above were heard.
509) The Council was represented by Jonathan Ferguson-Pye, Nicholas Jessen, Rob Green, John McCartin, Peter Crawford , Geoff Blackmore, John Hudson and Nigel Lloyd. Each of them spoke to their sections of the Section 42A report. Each of them also addressed various points in reply after the submitters had spoken. We had of course read and considered all the other components of the Section 42A report.
510) We also considered the relevant sections of the legal report on PC15 overall, and will refer to this advice under the assessment below.
Assessment 511) For the purposes of this assessment we have divided the submissions and the request into the following categories: 1. Rezoning: Extension Area 2. Rezoning: specific properties 3. Stormwater 4. Infrastructure 5. NEIZ objectives and policies 6. Specific provisions
Rezoning: Extension Area
512) The APL submission requested that the 'extension of the NEIZ be removed or staged to reflect the current and projected rate of uptake of industrial zoned land'.
513) For APL Mr Norwell, a consultant planner, referred to the relevant objective of meeting the City's needs for (industrial) land, and Mr Osborne, a consultant economist, analysed the available industrial land, the historic uptake for new industrial development, and the economic costs of over-supply. His conclusion is that the proposed Extension Area is unnecessary to meet any foreseeable demand for industrial land.
93 1968 514) The Council takes a different view. Mr Blackmore, a consultant valuer, described the available industrial and the market. In his view the particular market that must be provided for to meet the City's potential for new development is the requirement for large sites with good access for heavy vehicles and transport networks. On that basis the Extension Area is necessary to meet the City's demands over a 20 year period.
515) However there is a preliminary point about the validity of the APL submission. The Council says that APL could gain an advantage in trade competition through the submission, and that APL is not affected by an effect of PC15E that does not relate to trade competition or its effects. If these contentions are correct then APL had no right to make the submission. Schedule 1 Clause 6 is clear on this:
6 Making of submissions
(1) Once a proposed policy statement or plan is publicly notified under clause 5, the persons described in subclauses (2) to (4) may make a submission on it to the relevant local authority. (2) The local authority in its own area may make a submission. (3) Any other person may make a submission but, if the person could gain an advantage in trade competition through the submission, the person’s right to make a submission is limited by subclause (4). (4) A person who could gain an advantage in trade competition through the submission may make a submission only if directly affected by an effect of the proposed policy statement or plan that— (a) adversely affects the environment; and (b) does not relate to trade competition or the effects of trade competition. (5) A submission must be in the prescribed form.
516) We received legal submissions from both APL (Ms Simons) and Council (Mr Jessen) on this point. Both submissions were detailed and well referenced. Unfortunately for us, they came to quite opposite conclusions. The essence of their respective arguments were as follows.
517) Ms Simons says that APL is not a 'trade competitor' of anyone and not seeking an advantage in trade competition:
there is an underlying assumption that trade competition requires a competitive commercial relationship between two known parties who are using RMA processes to advance their position in external markets. [para.6.11]
518) Ms Simons referred to the High Court's decision in Queenstown Central Ltd v Queenstown Lakes District Council [2013] NZHC 815 ('the Queenstown decision') as authority for the proposition 'that property developers did not come within the scope of trade competitors'. She referred us to the following extract from the Court's judgment in the Queenstown decision:
"As a matter of fact there is no doubt that QCL and SPL are in competition for the best uses of appropriately zoned land in the Frankton area. QCL is the owner of around about 23 hectares of land. QCL and SPL are disagreeing on the appropriate zoning of their respective parcels of land. Let us allow that to be described as a form of competition or competing with each other. It does not follow they are in trade competition. SPL and QCL are property developers. Property developers develop property
94 1969 with an eye to the market for that property. That does not make them participants in the trade of the use to which the property is likely to be put. There is nothing in Part 11A of the RMA to suggest such an extended definition. (from [154-161]).
519) Her submission on this issue concludes:
The Issues raised by Argosy pertain to the efficient use of resources and its impact on the economic and social well-being of the community. These issues pertain to environmental effects caught within the scope of the RMA that are beyond trade competition and its effects. These Include: (a) Efficient use of land, including whether staged release of land is appropriate and avoidance of adverse economic effects which might result; (b) Implications of industrial zoning for infrastructure provision - for example, if isolated industrial areas are developed, Infrastructure provision is difficult and expensive; (c) Integrity of the North East Industrial zone, i.e. whether its layout is logical and practical; and From the analysis above, I submit that it is clear that Argosy is not a trade competitor and its interests extend beyond that of trade competition or its effects and the Council has no rational basis for seeking to exclude Argosy from the plan change process.
520) Mr Jessen's arguments are substantially captured by paragraphs 102 -104 in the Cooper Rapley report:
How to address the abuse of the RMA by trade competitors has always been a gnarly problem. There was always a reluctance to define trade competition. One recognises trade competition when one sees it. KPMG proposed in 1996 a motivation test for defining trade competition. This approach was never adopted. It always lacked a degree of objectivity.
It is considered that Parliament adopted in RMA, Schedule 1, clause 6 an economic effects based gateway. The key words are could gain an advantage in trade competition. The word “could” suggests potential. Not necessarily likely, but certainly not a remote possibility. “Advantage” in this context means an economic benefit. Therefore, if the effect of the submission is to provide an economic benefit to the submitter that is more than a remote possibility, in what can be characterised contextually as trade competition, then the submission is only valid to the extent that it addresses direct effects. As no direct effects are identified by Argosy, the Council considers the submission should be disregarded.
“Trade competition” in RMA, Schedule 1, clause 6 should not be read down. It means a competitive market in relation to economic activity involving goods and services including land but not competition for resource commons such as water, air or coastal water. Parliament’s intent was to stop the RMA being misused for purposes that frustrated its aims, and decided to introduce controls that should be given their full impact to address the identified mischief. Parliament deliberately did not define trade competition and an exclusion based on economic realism avoids the problems a definition entails.
521) The report went on to suggest that the Court's decision in the Queenstown decision was wrong in its approach to trade competition.
522) Our approach is as follows.
95 1970 523) The RMA does not define 'trade competition', and we agree with Mr Jessen that the absence of one must be deliberate, given the attention the issue has received since it was enacted.
524) The provisions of Part 11A concern trade competitors and their surrogates in the resource consent context. Those provisions do not apply to Schedule 1, nor, in our view, do they assist materially with this issue. What is clear is that the provisions of Part 11A apply when there are two parties who are trade competitors - one the applicant for a consent, and the other a submitter on that application. In this context, Ms Simons's submission that a requirement of 'trade competition' is that there two known trade competitors must be correct. But we do not accept a simple extrapolation to apply the same requirement to Schedule 1.
525) Clause 6(3) appears to have two elements. It may be artificial to divide a short clause in this way, but we think that it underscores the way in which the facts are to be viewed. First, the person making the submission must be engaged in a 'trade' in a context (or 'market') in which there is, or could be, competition - otherwise there could be no question of 'advantage' to that person. Second, there must be the reasonable possibility of such an advantage through the submission. Both are questions of fact. This approach seems to be consistent with the High Court's approach in Montessori Pre-School Charitable Trust v Waikato District Council [2006] NZHC 607 which it defined thus:
[19] In characterising the respective activities as of “trade competition” or not I have concluded that what matters is that there be a competitive activity having a commercial element [..].
526) On the first element we have two conclusions:
1. APL is a significant participant as an owner and seller in the market for industrial land in the City. Indeed, for a particular kind of industrial land (large greenfield sites), it is probably the dominant supplier. Clearly, as the evidence showed, other industrial land is also on/in the 'market' and there are other suppliers. The effect of PC15E will be to introduce more land into this market with new suppliers. We have no doubt that APL is significantly engaged in trade in the market for industrial land in the City. For this purpose it is unnecessary to define either APL's position or the market itself with any greater precision.
2. The market for industrial land must, overall, be a competitive one. Even in the NEIZ section of the market, where APL is a dominant owner/seller, we assume that other owners might put land for sale into the market. More importantly, PC15E would significantly increase the amount of industrial zoned land, some of which would, in time, be available for industrial development. This newly available land would be owned by persons who would become competitors in the market for industrial land.
527) We therefore conclude that the first element of Clause 6 is present.
528) On the second element, if the Extension Area is approved, the potential supply of industrial land in the City will be greatly increased. Rezoning will not, of itself, make the currently rural land immediately available for industrial development. But over time this will occur to some significant degree. In the
96 1971 section of the market referred to above (large greenfield sites) the effect of this increase would, realistically, lead to a reduction in APL's dominance as a supplier. It follows, equally realistically, that APL's submission could gain it an advantage in trade competition.
529) We therefore conclude that the second element of Clause 6 is present.
530) We next consider the effect of the Queenstown decision.
531) We begin by discounting Mr Jessen's submission that the decision was wrong on this point. If the decision states a principle which applies to this context, then it is binding on the Environment Court and, for all practical purposes, binding on local authority decision makers whose decisions may be appealed to that Court.
532) However we do not see how the conclusion in the Queenstown decision applies here. The factual context in that case was utterly different to PC15E. 533) The Queenstown decision (actually two decisions) involved appeals from two Environment Court decisions involving resource consents for large retail. One of the grounds of appeal brought to the High Court was that the Environment Court had wrongly treated the appellant as a trade competitor and thereby not given it a fair hearing. The High Court concluded (as noted above) that the Environment Court had made an error of law in treating the appellant as a trade competitor, but it also concluded that this error was not material to the Environment Court's decision (which was overturned on other grounds). The High Court found that the appellant was not a trade competitor of the companies named by the Environment Court. The High Court's decision is that Part 11A cannot be extended to make land developers - who contract to sell their respective land to businesses which are in trade competition - trade competitors themselves.
534) As we noted above, Part 11A does not apply to Schedule 1. It is not necessary to identify two trade competitors, one of whom is making a submission on application by the other. Our inquiry is, instead, broader: could the submitter gain an advantage in trade competition?
535) We have concluded that APL could gain an advantage in trade competition through its submission on PC15E. Motive is irrelevant. The fact is that APL is a significant supplier in the market for industrial land, and that its submission opposes a proposal which would increase both the number of suppliers and the amount of land in that market. Its submission could therefore give it an advantage in competition in that market.
536) There is no aspect of the APL submission which concerns an effect which does not relate to trade competition. For that reason we must disregard the APL submission.
537) That being the case, and although we heard evidence from both APL and the Council on the merits of the Extension Area, its size, and the desirability of staging the Area, we will not assess the substance of the request. On the law as we understand it, those matters are simply not issues which require a decision from us. If we are wrong in our understanding of the law it will be because the Environment Court has decided that we are wrong, and in that event it would then proceed to make its own assessment of the merits.
97 1972 Decision
538) For the reasons given above, the Argosy Properties Ltd submission is rejected. For the avoidance of doubt, it follows that we cannot accept the recommendation from Mr Ferguson-Pye that the submission be accepted in part by staging the development of the Extension Area. No other person made a similar submission. Notwithstanding our comments above in relation to any merits of the APL submission, we note that the evidence in relation to staging was very light.
539) The submission from Pita and Helen Kinaston is that PC15E should not proceed. It is clear from their detailed submission that the concerns relate to a number of important but specific matters including traffic, visual, noise, stormwater and essential services. However the submission also refers to the proposed 'zone change' - which is the Extension Area, rather than the existing NEIZ. For this reason we will consider the submission as, at least in part, request not to proceed with the Extension Area.
540) In our view the Council has made a strong case for an extension to the NEIZ. By 'strong' we mean supported by a considerable body of expert assessment, evaluation of alternatives, risks and opportunities. Part of the proposal is to ensure that any development of the area will successfully address the very issues that concern the Kinastons. In other parts of this decision we will consider specific requests in relation to the provisions which are designed to manage those issues.
541) However we are not a planning body, but rather a group of commissioners delegated to consider PC15E and the specific submissions on it. As with any adjudication in this context, our decision must be an objective one, based on the best information available to us. Where a submission requests a change to PC15E it must be supported with information sufficient to satisfy us that the request represents a better outcome than the proposal.
542) We simply have no information from the Kinastons on which we could conclude either that the Extension Area should not proceed or that it should extend over particular land. For that reason the request not to proceed with PC15E must be rejected.
Decision
543) The request by Pita and Helen Kinaston not to proceed with PC15E is rejected for the reasons given above.
Rezoning: specific properties
544) The following submissions sought that land be rezoned to NEIZ:
1. Jane Richardson (submission 5): 129 Richardsons Line Rural to NEIZ 2. Brian Holmes (submission 16): 52 Setters Line (and 787, 803 and 813 Roberts Line) Rural to NEIZ.
545) As we noted above, neither Ms Richardson nor Mr Holmes attended the hearing and we thus have only the content of their respective submissions to work with as supporting material for the requests. However both properties
98 1973 adjoin the proposed Extension Area and both submitters are concerned at the effects that industrial development will have.
129 Richardsons Line
546) The submission states that the property is currently (February 2015) for sale and that the proposed rezoning has deterred potential buyers. The request is that the Council rezone the property or provide compensation. The alternative request for compensation is not a matter we can consider.
547) Any development of this part of the Extension Area would appear to be some years in the future, and it would then require a resource consent in which a significant consideration would be the design of appropriate buffer and separation measures. So while we can understand a degree of anxiety about the form and effect of future development in the adjoining land, we think that this is a long way short of a valid reason for extending the zone even further.
548) Mr Ferguson-Pye has assessed the rezoning request at paras. 4.3 - 4.22 of his evidence in the s.42A report. He reviewed the reasons for the decision not to include this land in the Extension Area: high class soils, flood risk and higher liquefaction potential. He did not see any structural impediment to rezoning. He also assessed the request in other parts of his evidence under the amenity categories of noise, traffic and visual effects and made recommendations which we will return to below.
549) His recommendation (conditional on the submitter's agreement) was that the eastern part of the land (approx.1.6ha) be rezoned. This would leave the land with split zoning. We understood from Mr Ferguson-Pye that the submitter would agree to this.
550) We do not favour this approach. In resource management terms we do not see any advantage to it. The land is a relatively small rural block which, ordinarily, is unlikely to be subdivided further particularly given its characteristics referred to above. Yet a split zoning implies that this is what may happen. We cannot see how this would create either a more efficient use of the land resource or a solution to a perceived amenity problem.
551) However we accept Mr Ferguson-Pye's recommendations at paras.4.128 and 4.247 concerning the amenity issues of noise and visual effects respectively. These recommendations will assist in managing the effects of any industrial development on neighbouring land.
Decision
552) For the reasons given above the submission to rezone the land is rejected. However the submission's underlying concern with amenity is accepted in part by adopting Mr Ferguson-Pye's recommendations at paras. 4.128 and 4.247 and inserting new assessment criteria relating to noise and visual effects.
52 Setters Line
553) The concern expressed in the submission is that effect of rezoning adjoining land is that the owner will have to drive through 'an industrial park' to get to his property. Moreover, his house is only 30 metres from the boundary with rezoned land, so there is also concern about the risk of an industrial building
99 1974 nearby. The submitter points to the Council's 'appalling job to manage the current NE Industrial Area with buffer zones, access and visual appearance and poor planting plans'.
554) We repeat the point, made on the preceding submission, that we do not think that extending the zone is the right answer to an amenity issue. Logically all that would do is push any problem further out.
555) As with the Richardson submission, Mr Ferguson-Pye assessed the request both in terms of the suitability of the land for rezoning and the benefits of doing so as well as three categories of amenity effects.
556) In relation to the rezoning request Mr Ferguson-Pye's assessment is at paras.4.23 - 4.31. Acknowledging that the Mangaone Stream may (as Mr Hudson says) provide a logical natural buffer between the Rural and NEIZ zones, he also notes that significant further technical work on a number of issues would be required before the addition of more land could be considered. We agree, and would add to his list, at para.4.30, an assessment of the likely future need for further industrial land beyond the potential provided by the 126ha in the Extension Area.
557) Accordingly we would not rezone 52 Setters Line. In case the submission intended to include other land on Roberts Line (and we doubt that this was intended) we do not know the views of the owner(s) of that land, and this is a further reason we would not extend the zoning as requested.
558) However as with the Richardson submission, we accept Mr Ferguson-Pye's recommendations at paras.4.128 and 4.247 concerning the amenity issues of noise and visual effects respectively. These recommendations will assist in managing the effects of any industrial development on neighbouring land.
Decision
559) The request to rezone 52 Setters Line (and any other land at Roberts Line) is rejected. However the submission's underlying concern with amenity is accepted in part by adopting Mr Ferguson-Pye's recommendations at paras. 4.128 and 4.247 and inserting new assessment criteria relating to noise and visual effects.
Stormwater
560) The management of stormwater is a critical issue for any large development in this part of the City. Any 'hard' development of rural land reduces the existing capacity of the land to absorb rain or overland flows. If this loss of capacity is not replaced by some other means, there is an increased risk of flooding on both the developed land itself and land in downstream catchments. We therefore need to be satisfied that any stormwater problem will be managed within the development context and not be exported into other areas.
561) Key aspects of PC15E in relation to stormwater are:
1. the general approach of hydraulic neutrality 2. watercourse reserve areas 3. effects on adjoining properties and downstream catchment
100 1975 562) The following submissions were on stormwater:
1. David Morrison (submission 2): there is no clear request for change in this submission. He is opposed to any removal of existing controls relating to wet industries and stormwater detention; and he is generally in agreement with Mr McCartin's report. There is a general concern about the potential contamination of run off from industrial sites, with specific mention of aluminium oxide. 2. David Severinsen (submission 18): there is no specific request for change to PC15E, but the submission raises queries about WRAs (which affect his land) and the ownership of the stormwater and WRA 'assets' identified on Structure Plan Map 7.2 3. Manawatu-Wanganui Regional Council (submission 56): The Horizons submission is generally supportive of PC15E, and specific policies relating to stormwater, and draws attention to One Plan Rule 14-18. The particular request is to add further words to performance standard (d)(i) in Rule 12A.6.2 to provide context for the achievement of hydraulic neutrality. 4. Frederick Setter (submission 71): the request is that the identified detention areas be removed and that developers be required to provide a plan for the management of stormwater. 5. Judith Milne (submission 72): the submission supports proposed stormwater policies to control runoff from the Extension Area. No decision is required on this submission.
563) It will be noted from the list above that there are relatively few requests for change on this important aspect. Mr Morrison and Mr Severinsen did not attend the hearing (though Mr Adam spoke for the latter).
564) As we noted at the start of the decision, our ability to make any change to the provisions proposed by PC15E is dependent on a clear request for such a change supported by adequate information.
565) In this context, while we are appreciative of Mr Ferguson-Pye's information and analysis on the submission from Mr Morrison, we are ultimately only required to make a decision on the request that 'existing controls' not be removed. That request is a little ambiguous because there are no 'existing controls' for the Extension Area, and we are not sure whether the request extends to amending existing controls to make them more clear and perhaps also address some of Mr Morrison's concerns.
566) Not having received anything further from Mr Morrison on these points we are left with Mr Ferguson-Pye's analysis at paras. 4.133 - 4.134. We agree with that analysis. The retention of the relevant Rules, 12A.8.2 and 12A.8.3 would serve no purpose.
Decision
567) For the above reasons, the request in Mr Morrison's submission is rejected.
568) The Horizons submission is supportive of the approach to stormwater in the Extension Area, and requests an addition to Rule 12A.6.2 assessment criterion (d)(i). This provision would read (with new words underlined):
(d) Onsite Stormwater Management (i) The extent to which proposed on-site stormwater retention and
101 1976 detention measures ensure hydraulic neutrality is achieved in the 1%AEP plus climate change storm, as per NZS4404:2010, and that there is no increase in stormwater effects on surrounding areas.
569) We agree with this request for the reasons given in Ms Gulliver's statement of 13 October and Mr McCartin's evidence at para.8.
570) Mr Ferguson-Pye recommended that a request to amend performance standard (f) by inserting a requirement for 100% mitigation of 1% AEP event in Rule 12A.6.2 be rejected. Horizons says that it did not make such a request but rather simply made its support for the Rule conditional on such an amendment. We agree with that position because the two requests would appear inconsistent - if a performance standard requires hydraulic neutrality, then it need not be considered as an assessment criterion. However Ms Gulliver noted that:
The Panel should be aware that if 100% mitigation is not achieved, the resulting discharge of stormwater from the site will require a consent from Horizons. Given the lack of capacity for Taonui Basin to accommodate any increase in flood flows, there is no certainty that consent could be granted due to the potential for significant effects on downstream properties.
571) Accepting that the comment above reflects the position with regard to any consents (presumably required under Rule 14-19), it is best to leave the issue with Horizons as consent authority.
Decision
572) For the above reasons the request from the Manawatu-Wanganui Regional Council is accepted.
573) We now consider Mr Setter's requests in relation to the WRA. Although Mr Severinsen did not make any specific request, the following assessment will touch on some of his concerns.
574) Mr Setter has long experience with the flooding of the area he lives in. He is sceptical that industrial development of the Extension Area would not result in a greater risk of downstream flooding. The following extract from his statement contains the essence of his point:
I thought your Palmerston North stormwater asset engineer Mr. McCartin assessment report was very good - he mentioned quite a lot about the retention of 5mm to 10mm of rainfall in a 24 hour period on a developed lot. Myself I am more concerned about the detention ponds that would be required when 50 to 150mm of rain fell in a 24-36 hour period. We asked a friend of ours who has worked in stormwater control to look at Mr. McCartins report, and he confirmed it was very good. His main concern was who was going to police the requirements? He said if the requirements were not policed properly they would not be worth the paper they were written on. When I see the large area that is planned by the industrial development in this that the catchment of the Mangaone, I find it hard to believe that the stormwater can be sufficiently controlled in peak flood time, the result being a massive increase in water levels and pressure on the Mangaone system and flood path right through the Kairanga. I have heard it said that this area was always a flood path.
102 1977 575) Mr Ferguson-Pye's assessment is at paras.4.144 - 4.161 of his evidence. He begins by noting:
1. The responsibility for mitigating stormwater effects of developments 'falls in the first instance on owners undertaking development' 2. Council is not legally obliged to provide a drainage or stormwater service 3. However it is more practical and efficient for Council to take responsibility for development, management, on-going maintenance and ownership of WRAs 4. Council will use development contributions to fund any borrowing for this infrastructure
576) We agree with Mr Ferguson-Pye that this model is a much more effective response to stormwater over a very large development area than relying on individual developers to achieve the same outcomes (which is the outcome of Mr Setter's request). However this model only works where the Council maintains this commitment. Realistically if the Council, under the separate statutory process for funding and works, changes its mind or its priorities then development of the Extension Area may be either severely constrained or practically impossible. The same applies to other aspects of infrastructure such as roading and water supply.
577) We make this point, not as a criticism, but because it should provide Mr Setter with a degree of comfort that development will only occur if the stormwater mitigation and containment measures are adequate to achieve appropriate hydraulic neutrality - ie that the stormwater outflow from land will be no greater after development than before it. The further comfort should be that the Council plans to own and maintain the critical parts of the infrastructure. For our purposes we do not think that it is reasonable to ask for more than this.
578) A further layer of assurance is the role of the Regional Council. The One Plan has Rules governing the discharge of stormwater, and these will apply to any detention infrastructure. Any discharge which would result in the flooding of any other property requires a consent. In general terms we would think it inconsistent with the purpose of sustainable management to approve any stormwater design which would cause or exacerbate downstream flooding.
579) In relation to Mr Severinsen's queries and concerns, the ownership model is described by Mr Ferguson-Pye, but will not be part of PC15E. More importantly the location, size and effect of any WRA first and foremost an issue for the owner of the land. The Structure Plan for the Extension Area assumes the availability of all the relevant land. If, for whatever reason, the relevant owner(s) choose to not make the land available, then some other solutions will have to found for the infrastructure needs of development on other land.
Decision
For these reasons, the request by Mr Setter is rejected.
Infrastructure
580) This aspect of the decision concerns the following aspects of infrastructure:
1. roading and traffic 2. PNCC engineering standards
103 1978 3. NZ Electrical Code of Practice 4. Recognition of the Hawkes Bay Gas Pipeline
581) We have assessed the NZFS and Proarch submissions on water supply for fire fighting at paras.1014-1030.
582) The following submissions made specific requests in relation to infrastructure:
1. Powerco: requested an advice note to the NEIZ subdivision and development provisions drawing attention to the requirements of NZCEP34:2001 and regulations relating to trees and lines (Electricity (Hazards from Trees) Regulations 2003. 2. PNCC: requested deletion of reference to Council's engineering standards for land development 3. Brian Green Properties (PN) Limited: requested that Rule 12A.7.2 be amended to apply only to the Extension Area. 4. Vector Gas Limited: requested that a number of new provisions be inserted in relation to the Hawkes Bay Gas Pipeline which crosses the Extension Area
583) The following submissions were in support of specific infrastructure provisions and while these are noted and have been considered, no decisions are necessary. 1. David and Robyn Adam 2. Manawatu - Wanganui Regional Council: 3. NZTA
584) The following submissions raised concerns about roading and traffic, and have been considered under that heading. However no specific requests to change relevant provisions were made and no formal decisions in that regard are required. 1. David Severinsen: 2. Jane Richardson 3. Brian Holmes 4. Pita & Helen Kinaston
Roading and Traffic
585) The submission from Brian Green Properties relates to discretionary activity Rule 12A.7.2 which applies to any development in the NEIZ seeking access from Richardsons Line, Setters Line or Roberts Line 'before the road and associated intersections are upgraded to a full industrial standard that meets Council's standards for land development'. Rule 12A.7.2 is intended to replace non-complying activity Rule 12A.10.2.
586) Brian Green Properties did not attend the hearing and we gather from its submission that the request is based on the explanation to the Rule which suggest that it relates to the Extension Area. We accept from Mr Ferguson- Pye's evidence that this is not the Council's intention, and that the relevant (secondary rural) roads remain inadequate for significant levels of industrial traffic. Accordingly we do not accept the request.
587) There is however a difficulty with the rule which must be fixed: the words 'before the road and associated intersections are upgraded to a full industrial standard that meets Council's standards for land development' are, in our view
104 1979 too vague to allow anyone affected by the rule to know whether or not it applies. Specifically, what are the Council's 'standards'? And how does the use of these words fit with the Council submission (accepted below) requesting that similar wording be deleted from a number of provisions?.
588) In our view, the words should be deleted. The deletion will not affect the scope of the rule. If the roads are upgraded (by agreement or otherwise) to the required standard then this specific problem will be removed. If not, then the intent of the rule is clear: the roads are currently unsuitable for much of the kind of development anticipated in the NEIZ.
589) We agree that the explanation should be amended as recommended by Mr Ferguson-Pye at para. 4.193 to remedy the point raised in the submission.
Decision
590) The request to restrict Rule 12A.7.2 to the Extension Area is rejected for the reasons above. However the Rule is amended by the removal of the words referred to above in para.587. The amendment to the explanation recommended by Mr Ferguson-Pye is accepted.
591) In looking at issues of roading and traffic more generally, we note the submissions in support from NZTA and Horizons as an indication that the proposals are consistent with the established strategic directions for transport.
592) The submissions from David Severinsen, Jane Richardson, Brian Holmes and Pita and Helen Kinaston all allude to or raise concerns as to the future effects of traffic with the development of the Extension Area in terms of the Structure Plan. There is no specific request for change in any of these submissions, so we do not think it necessary to make the specific decisions recommended by Mr Ferguson-Pye. While it does not address the submitters' concerns, we do note that decisions about the standard of particular roads (and thus the kind of traffic which will use them) are made to a significant extent outside the RMA and Plan framework. For example, the concern referred to in the Kinaston submission about Roberts Line (where they live) becoming a link to the Kairanga-Bunnythorpe Rd may eventuate quite independently of any development of the Extension Area.
Council engineering standards
593) The Council submission is based on the concern that its standards should not become incorporated into the Plan, particularly as they will no doubt require revision from time to time. We agree that these references should be deleted. Those working in the areas of subdivision and land development will be generally familiar with the Council's requirements where it is intended that specific assets (eg roads and drains) should vest in it or occupy Council land.
Decision
594) The Council submission is accepted.
Notes relating to the NZ Electrical Code of Practice and the Tree Regulations
595) We note Mr Ferguson-Pye's analysis of this request at para. 4.221 (referring to Mr Green's comments). We also note Mr Laurenson's points in his tabled
105 1980 statement of 13 October 2015, that the Code and Regulations would apply to underground lines and to distribution lines. Powerco made the same request in relation to PC15F and we repeat our conclusion below.
596) It is understandable that a company which is responsible for electricity supply should seek to promote awareness of the need to avoid planting in spaces where conflict with lines may arise. We do not accept that this interest warrants a range of notes through the Plan identifying the need for compliance with one or more Codes or Regulations which may well be changed during the life of the Plan.
597) Taking the BIA as our current context, there is a number of significant laws and requirements, quite separate from the RMA and the Plan, which any new development and operations may have to comply with. We do not think that it is the function of the Plan to advise or instruct its users on the need for compliance with these other laws, particularly when the laws referred will almost certainly change and thus make any notes inaccurate. This is in no way diminishes the importance of the objective Powerco is trying to achieve, but we are not satisfied that the kind of notes requested are appropriate in this context.
Decision
598) For the reasons given above, this request is rejected.
Hawkes Bay Gas Pipeline
599) As noted above, Vector did not appear at the hearing or send any further material in support of its submission. We acknowledge however that the submission is a comprehensive one. Vector begins by referring to the relevant Regional One Plan objective and policies relating to infrastructure of regional and national significance. This infrastructure, which includes the gas pipeline, is to recognised and generally protected from the adverse effects of other activities.
600) Mr Ferguson-Pye's description and assessment of the requests is contained in paras. 4.224 - 4.236. The recommendations on each request are in para. 4.237. We agree with, and adopt, his evidence. In relation to the request for a new performance standard in Rule 12A.4.1 we agree that the issue is better managed under the relevant restricted discretionary rules (which cover subdivision and development in the Extension Area where the pipeline is located).
Decision
601) The requests in the submission are accepted in part or rejected as set out in Mr Ferguson-Pye's recommendations at para. 4.237 for the reasons given in his evidence and referred to above.
Other provisions
602) The submission from Proarch was supported by a detailed presentation from Amanda Coates. As we noted to Ms Coates during the hearing, the request in the submission creates some difficulty. The submission addresses PC15 on a global basis (ie with no differentiation among PC15A-H) and the request is as follows:
106 1981
We have concerns in relation to the servicing of newly zoned land, economic effects of stated policies and visual effects in PC15A-H and seek relief and to achieve sustainable management through amendment to policies, objectives and rules.
The preceding explanation is also broad:
We oppose aspects of plan Change 15A-H which are likely to make resource consent processes under the plan more onerous, costly and complex in delivery for our current and future clients.
603) The submission is plainly a very general one and can be accepted as valid at that level - specifically as a request to keep in mind the purpose of sustainable management and the need for efficiency. However we do not think that it can be a valid basis for pursuing specific and undisclosed amendments to provisions within PC15.
604) Leaving the submission open to validly require anything and everything to be considered is not only practically unworkable, but it also tends to defeat the purpose of Schedule 1 Clause 7(1) as the Council can have no idea what specifically is being requested. The submission itself clearly does not comply with Clause 6(5) which requires the prescribed form to be used or followed. That form (Form 5) in the Resource Management (Forms, Fees and Procedure) Regulations 2003 requires the submitter to specify 'the specific provisions of the proposal' that the submission relates to. Reg. 4 allows some flexibility in following a prescribed form, but any differences must be 'minor' and to the same effect as the requirement.
605) For these reasons we cannot regard the Proarch submission as a valid basis to request changes to specific provisions. The particular focus of the presentation by Ms Coates on the submission was the standard of water supply for fire fighting - and in our view this is not an issue that could reasonably have been anticipated by any person looking at the submission.
606) We do however return to the substance of this matter in our decision on the NZFS submission at paras.1014-1030.
607) It follows that we do not think it necessary to make any decisions on Mr Ferguson-Pye's recommendations in relation to this submission.
107 1982
12. Plan Change 15F Braeburn Industrial Area (BIA)
Background
608) The purpose of PC15F 'is to provide additional land for the future expansion of Fonterra's existing site at Longburn'. To this end, PC15F proposes the rezoning of 33ha of land from Rural 1 and Flood Channel 2 (in the Manawatu District Plan) to Industrial, to be known as the Braeburn Ibdustrial Area (BIA).
609) The land is part of the Braeburn Farm owned by Fonterra and is largely undeveloped except for a house and outbuildings in the south eastern part of the site. The BIA adjoins the Longburn Dairy Manufacturing Site (or 'LDMS') which contains the existing Fonterra Plant. The boundaries of the BIA are the North Island Main Trunk Rail Line to the north and, in part, SH56 to the south. In the southern part of the BIA the eastern and southern boundaries adjoin land also owned by Fonterra. In the east, north of the Fonterra owned land, the BIA boundary adjoins land in separate ownership but which is leased by Fonterra.
610) The BIA is to be enabled by, and subject to, a range of specific provisions within Section 12 Industrial. The proposed provisions have been the subject of discussions between Fonterra and the Council - indeed the BIA concept was developed in response to a request from Fonterra (made in its submission on PC9) to rezone the land to Industrial. However a number of significant areas of difference between the parties remain, and these are reflected in Fonterra's submission which we will outline below together with the other submissions on PC15F.
611) Though there were a number of submissions on PC15F, none opposed the concept.
The BIA provisions in brief
612) The proposed BIA provisions are in Section 12 Industrial and in Section 7 Subdivision.
613) A new Section 12 Objective 5 and its supporting policies provides the foundation. The objective of the BIA is to enable the development of 'dairy related industries...in a coordinated and integrated manner...while ensuring that adverse effects on other activities in the vicinity are avoided, remedied or mitigated'. Policies include the avoidance of other industrial activities; require infrastructure and transport access to be planned at an early stage; and require the use of a comprehensive development plan ('CDP') to enable comprehensive and integrated planning of the development of the BIA.
614) A new Section 7 Objective 8 and its supporting policies provides that subdivision in the BIA is to be avoided to ensure the land remains in single ownership and is not available to meet other industrial land demands.
615) A review of permitted activities in the proposed BIA needs to start with the general provisions for permitted activities in Section 12. Rule 12.6.1 creates a broad range of permitted activities in the Industrial zone, subject to performance standards - some of which apply only in specific areas. However Rule 12.6.1 does not include the construction of buildings and structures which are subject to Rule 12.6.2.
108 1983
616) In the BIA permitted activities (Rule 12.6.1) are limited to any 'dairy related industrial activity' (which is defined in Section 4 Definitions) and any activity ancillary to such activities. This is to be achieved by a performance standard (m) specific to the BIA and by listing industry that is not dairy related as a non- complying activity. The permitted activities listed in (m) are subject to the general performance standards for permitted activities in the Industrial zone. We have some reservations about the structure of this Rule which we will return to below.
617) Permitted buildings and structures in the BIA (under Rule 12.6.2) are limited by performance standard (k) to alterations and additions to buildings/structures already approved in the BIA or to buildings/structures which extend into BIA from the neighbouring Industrial zone. Again, our reservations on the structure of this Rule will be considered below.
618) There are no controlled activities proposed for the BIA.
619) Except as provided by Rule 12.6.2 any new building or structure is a restricted discretionary activity subject to a number of performance standards and assessment criteria (see Rule 12.8.5). A Comprehensive Development Plan (CDP) is required. Any application for consent must not be notified on either a public or limited basis (Rule 12.8.6).
620) Dwellings and ancillary retail and office activities are discretionary activities subject to the limitations of Rules 12.9.2 and 12.9.3. There are no other discretionary activities in the BIA.
621) As noted above, any industrial activity which is not permitted is a non- complying activity in the BIA. Any subdivision of land in the BIA is a non- complying activity.
Submissions
622) The following persons made submissions on PC15F:
1. New Zealand Fire Service: did not attend the hearing and the NZFS submission has been considered separately in this decision
2. Federated Farmers Manawatu-Rangitikei Province: sent written statement from Coralee Matena (Regional Policy Advisor) in support of the submission
3. Fonterra: attended the hearing represented by William Boakes (Site Operations Manager), David Bridges (consultant infrastructure engineer) and Ian Johnson (consultant planner).
4. Manawatu-Wanganui Regional Council: sent written statement from Ashleigh Gulliver.
5. Powerco: sent written statement from Mark Laurenson (consultant planner).
6. Kiwi Rail Holdings: submission in support - did not attend the hearing
109 1984 7. Proarch Consultants: attended the hearing represented by Lisa Poynton.
8. Bruce Wilson: submission noted need for typographical correction in Section 4 - did not attend the hearing.
9. NZTA: submission in support - did not attend the hearing.
Hearing
623) PC15F was heard on 14 October 2015.
624) The Council was represented by Jonathan Ferguson-Pye, Rob Green, John Hudson and Graeme McIndoe. Each of them spoke to their sections of the Section 42A report. Each of them also addressed various points in reply after the submitters had spoken. We had previously read and considered all the other components of the Section 42A report, and had visited the site and immediate vicinity.
625) We also considered the relevant sections of the legal report on PC15 overall, and will refer to this advice under the assessment below.
626) As noted above, Mr Boakes, Mr Bridges and Mr Johnson spoke to the Fonterra submission and Ms Poynton spoke to the Proarch submission.
627) We will not attempt to summarise all this evidence (which in any event is all recorded in the written statements and available on the Council website). Instead we will now identify the key remaining differences between the requests and PC15F. In doing so we will concentrate on the evidence given by the Council and the evidence in support of the Fonterra submission (the Proarch submission, as explained by Ms Poynton, was in support of PC15F).
628) We will consider the other submission requests in our assessment below.
629) Mr Johnson helpfully provided a list of the differences between Mr Ferguson- Pye's recommendations and his own. There are thirteen aspects of disagreement - a significant number, but fewer than the number of requests in Fonterra's submission relating to the BIA. We subsequently received written advice dated 10 December 2015 to the effect that the Council and Fonterra had agreed on amendments to parking, loading and access provisions in rules 12.6.1 and 12.8.2.
630) At a basic level, the key difference in the respective positions of Council and Fonterra on remaining issues is largely encapsulated by Mr Johnson's point that Fonterra would like the CDP to be a 'one stop shop' or genuinely comprehensive. In other words, once a CDP is 'approved', downstream development is permitted unless it does not accord with the CDP. The Council's view is that the CDP remains a key reference point for further development which will be generally classified as restricted discretionary. In this classification issues of design and amenity (in particular) specific to the development for which consent is required remain 'live' as assessment criteria.
631) The answer to this basic or philosophical issue will tend to determine the remaining issues identified in Mr Johnson's evidence.
110 1985 632) This may be seen as an over-simplification of the Fonterra position, and we acknowledge that it gave consistent evidence on two specific concerns in relation to building design and landscape design and spatial treatment.
633) The first point is that the industrial buildings and plant will have a design, including relationship to other buildings, which is largely dictated by function. Bluntly, how it works is far more important than how it looks. Second, because Fonterra (and the other companies which will use the site) are involved in food production, there is an over-riding need to protect facilities from all pests (birds, rodents, insects etc). There is thus a general resistance to anything (such as amenity planting) which might become a habitat for these pests.
634) Finally, there is a need to be able to develop the site in a commercially responsive way, where certainty is an important element in planning.
635) For the Council, both Mr McIndoe and Mr Hudson emphasised the point that Longburn is a City 'gateway' and that the BIA has potential to be both dominant and negative in amenity terms if development is not managed in a way that is required to consider its external effects.
Assessment
636) We begin by considering all submissions except for Fonterra's.
637) NZ Fire Service: refer to the separate decision on this submission at page159.
638) Federated Farmers: this submission states that its request relates to the policy 'regarding the self-sufficient nature of the BIA'. In fact, the text referred to, and for which the change is requested, relates to the explanation following Section 7 Subdivision Objective 8 and Policies 8.1-8.4. This is an objective to avoid subdivision and to retain 'on-site self-serviced infrastructure...in single ownership'
639) As Mr Ferguson-Pye notes (paras. 4.51 - 4.54) the explanatory text has no weight (and indeed does not really relate to the policies), and appears to be simply a statement of the current position which may change in the future if the Council decides to make provision for coordinated and/or reticulated services in Longburn. Those potential future Council decisions would be made (under present legislation) consistently with the amended text that Federated Farmers has requested. Mr Ferguson-Pye has proposed an amendment to the relevant sentence of the explanation which we think is an improvement to the current text, and clarifies the position in substantially the same way sought by the submission. To that extent, the submission request is accepted in part.
640) Manawatu-Wanganui Regional Council: the submission requests the retention of specific PC15F provisions and an amended Note 2 to Rule 12.8.5.
641) In relation to the latter, the request is supported by Fonterra and recommended by Mr Ferguson-Pye and we accept it.
642) In relation to the specific provisions requested to be retained, we will address these under the Fonterra submission below.
643) Powerco: This submission requests the insertion of a note, drawing attention to the separate provisions protecting electricity lines, in each of the Sections of
111 1986 the Plan which are to be changed by PC15. The submission does not specify where the note should be included. In relation to Section 12 Industrial Zone there is, as Mr Ferguson-Pye notes (at para.4.68) a scope issue as most of Section 12 is not affected by PC15F. However we could include such a note in the proposed provisions relating to the BIA.
644) It is understandable that a company which is responsible for electricity supply should seek to promote awareness of the need to avoid planting in spaces where conflict with lines may arise. We do not accept that this interest warrants a range of notes through the Plan identifying the need for compliance with one or more Codes or Regulations which may well be changed during the life of the Plan.
645) Taking the BIA as our current context, there is a number of significant laws and requirements, quite separate from the RMA and the Plan, which any new development and operations may have to comply with. We do not think that it is the function of the Plan to advise or instruct its users on the need for compliance with these other laws, particularly when the laws referred to will almost certainly change and thus make any notes inaccurate. This is in no way diminishes the importance of the objective Powerco is trying to achieve, but we are not satisfied that the kind of notes requested are appropriate in this context.
646) For these reasons the Powerco request is rejected.
647) Bruce Wilson: requested that 'dairy' be included in paragraph (a) of the definition of 'dairy related industry activity'. This request is supported by Fonterra and recommended by Mr Ferguson-Pye. We agree that the word should be inserted and the request is accepted.
648) Kiwi Rail requested that a users note be included in Section 7 to the effect that access to a rail corridor is not road frontage. Mr Ferguson-Pye's recommendation at para.4.266. was to decline the request which he noted raised issues of scope. We did not regard this aspect of the submission as being necessarily related to PC15F, and indeed it might have a more obvious relationship with PC15A Subdivision. However we do not think that the requested note is necessary, and there was no evidence that the absence of a note had caused problems. The request is rejected on this basis - though we also accept that there is a scope issue, we would not have rejected a note solely for this reason as no person could be disadvantaged by the addition of an advisory note.
649) PNCC requested the removal of the reference to Council's Engineering Standards for Land Use Development from the explanation following Section 7 Objective 8. Fonterra made a similar request. These requests are accepted for the reasons given in paras.4.244-245 of Mr Ferguson-Pye's evidence.
650) Kiwi Rail, Proarch and NZTA all supported PC15F and no decisions are required.
Fonterra submission
651) As noted above, we think it useful to start with an overall view of the Fonterra requests. In this overall view we have taken Fonterra's position to be as Mr Johnson described it: once a CDP is submitted for the first development, the layout and general scale of further development, together with supporting
112 1987 infrastructure, should be set, and provided that further development is within the approved CDP, then it should be permitted.
652) Our view is that such an approach might work if all the matters which are of potential interest or concern to the Council from a resource management perspective can be, and are, all addressed in the CDP, and if the CDP is 'approved' as blue print for future development. In this state of affairs the CDP is more akin to a 'master plan' for development which is incrementally implemented over a planned period.
653) The difficulty is, from a management perspective, that neither of the premises outlined above exist. What PC15F proposes - albeit, we think, with undue complexity - is a management method where every stage of BIA development is subject to a consent process. The application for the first such development must be accompanied by a CDP which identifies, in essence, a context for further development. But each further development is then to be assessed against the CDP and the other assessment criteria. The only difference between the first and subsequent stages of development is that the CDP is only required once.
654) In assessing the different views on this broad issue, our primary reference point is the set of relevant objectives and policies for the area. These include the City View Objectives in Section 2 and the objectives and policies in Section 12 Industrial including proposed new Objective 5 and its policies.
655) The City View Objectives are the overarching objectives for the Plan (the 'broad outcomes' to be achieved) and a number are specifically relevant to the greenfield rezoning proposed by PC15F:
1. Planning for residential, industrial, commercial and rural-residential growth sustains a compact, orderly and connected urban form which avoids the adverse environmental effects of uncontained urban expansion into the rural zone. 2. The provision of infrastructure, particularly within identified growth areas, shall be efficient, timely, environmentally sensitive and economically sustainable. 8. The distinctive rural and urban character of the City is recognised and a clear differentiation is provided regarding subdivision, development and servicing expectations within rural and urban areas. 9. Subdivisions, buildings and infrastructure are designed and constructed to promote a coordinated, healthy and safe environment. 10. The visual appeal of the City is enhanced. 11. The principles of good urban design are given effect to for all new subdivisions, urban intensification and major building developments, particularly those located within the City Centre or fronting key transportation routes. 22. Appropriate noise standards are in place to protect noise sensitive activities. 23. The transport I Infrastructure operates in a safe and efficient manner, and the effects of activities which could impact on the safe and efficient operation of this infrastructure are avoided, remedied or mitigated. 25. Infrastructure and physical resources of national and regional or national significance importance are recognised and provided for by enabling their establishment, operation, maintenance, upgrading and protection and protected from the effects of other activities.
113 1988 656) Within Section 12, Objectives 3 and 4 and their respective policies are particularly relevant to the issue:
Objective 3 Activities and development maintain or enhance the amenity values of those areas at the interface with the Industrial Zone.
Policies 3.1 To manage the adverse environmental effects of Industrial Zone activities on those areas at the interface with the Industrial Zone. 3.2 To manage adverse amenity effects of building mass and height on industrial sites adjoining a site in the Residential, Institutional, Recreation or Conservation and Amenity Zones, or sites that front arterial roads. 3.3 To require high quality frontage landscaping that contributes to the amenity and streetscape on industrial sites that are opposite a site in the Residential, Institutional, Recreation or Conservation and Amenity Zones, or sites that front arterial roads. 3.4 To control the construction of fences at the frontage of industrial sites opposite a site in the Residential, Institutional, Recreation or Conservation and Amenity Zones, or fronting arterial roads so that amenity is not detracted from. 3.5 To ensure that activities in the Industrial Zone that are adjacent or opposite a site in the Residential, Institutional, Recreation or Conservation and Amenity Zones, or front arterial roads, have sufficient on-site parking to meet the needs of employees and customers so that overspill parking does not adversely affect surrounding land use activities.
Objective 4 Activities and development maintain or enhance visual amenity and public safety within the Industrial Zone.
Policy 4.1 To require any activity or building development within the Industrial Zone to contribute to the visual enhancement and amenity of the industrial area. 4.2 To ensure the design of new buildings and any addition or alteration of existing buildings reduces the actual and potential threats to personal safety and security.
657) These are the operative objectives and policy 'settings' which the rule or method framework of PC15F must achieve. The specific 'enabling' objective and policies for the BIA proposed in PC15F must be read with all the other objectives and policies listed above.
658) As with any greenfield development, and as with any new industrial development, the range of qualitative amenity and design objectives is of fundamental importance to the development of the BIA. In other words, the development of the BIA is to be enabled, but without any exemption from the general expectations as to the qualities of significant new development, particularly in greenfield areas,
659) It is therefore not consistent with this Plan framework to assert that the 'internal' environment should be of little interest in planning terms, or that the design of large buildings and structures must be solely dictated by their functions. We acknowledge that Fonterra did not directly contend for these approaches, but they do seem to be an inevitable consequence of proposing that development
114 1989 in accordance with a CDP which is largely concerned with infrastructure and general layout should be permitted.
660) We therefore accept the Council view that the design of significant buildings and structures and the design of some of the undeveloped spaces are highly relevant in resource management terms.
661) With this general introduction, we begin the assessment of the requests in the submission with those relating to objectives, policies and issues, and to explanatory and introductory material.
662) Section 7 Subdivision Objective 8: the submission requests an amendment to the explanation by deleting the last sentence. We accept that request for the reason given in the submission, noting that the Council recommended acceptance.
663) Section 12 Industrial Introduction: the submission requests an amendment to the paragraph referring to the BIA by the inclusion of new and additional sentences at the beginning and end of the paragraph. The Council supports the request but suggests a different and more detailed wording which we accept. The request is therefore accepted in part.
664) Section 12 Industrial Resource Management Issues: the submission requests a new paragraph in the explanation which follows the list of issues. We agree with Mr Ferguson-Pye (at para.4.253) that the requested text does not relate to any of the issues and thus does not 'explain' them. This request is accordingly rejected.
665) Section 12 Industrial Objective 1: the submission requests additional text in the explanation of the objective. We are doubtful that the requested text contributes to the understanding of Objective 1 and its policies. However the Council has recommended the acceptance of an amended text which we think is a more appropriate description of the LDMS/BIA in this context. We accept the text recommended by Mr Ferguson-Pye at para.210 and the request is accordingly accepted in part.
666) Section 12 Industrial Policy 4.1: the submission requests a rewording of the Policy (which applies throughout the Industrial zone), so that its general direction that any development should contribute to' visual enhancement and amenity' is limited by 'functional and operational requirements'. The request was not supported by Fonterra's evidence, and our views on the point are outlined above in the paragraphs following the list of relevant objectives and policies. We do not think that the requested wording would be consistent with the overall framework or with Objective 4 and City View Objectives 10 and 11. We agree with Mr Ferguson-Pye's assessment of the request at paras.4.214- 216. We agree also that the request appears outside the scope of PC15F, though if that were the only difficulty with it, we could add a separate policy for the BIA. This request is rejected accordingly.
667) Section 12 Industrial Objective 5, Policy 5.3 and explanation: the submission requests amended wording in the objective in relation to servicing, the deletion of 'as a matter of priority in the policy and amended text in the explanation. The Fonterra evidence did not cover these issues. The requests are considered in paras.4.10 - 4.22 of Mr Ferguson-Pye's evidence. In the absence of contrary views we accept his assessment and recommendations.
115 1990 For the reasons given in his evidence we reject the requests in relation to Objective 5 and Policy 5.3 and accept the request to amend the explanation.
668) We then turn to the proposed rules in contention. These are two permitted activity rules of limited scope (Rule 12.6.1 and 12.6.2) and a restricted discretionary activity rule of broad scope and complexity (Rule 12.8.5). We consider these rules in that order.
669) Rule 12.6.1: our concern with this Rule is that (m) - which is a critical limitation on activities within the BIA - is not a performance standard. It does not appear to alter the effect of the broad range of permitted activities, and it requires compliance with performance standards which may not be relevant. Although R.12.6.1 does contain performance standards which are specific to particular Industrial areas (Midhurst, Napier Rd and Railway Enclave) these are additional standards and they do not limit the scope of the permitted activities. We think that (m) is in the wrong place and should be a separate rule. We will return to this point below, but first consider the specific requests.
670) The requests to amend Rule 12.6.1 relate to parking requirements and to the exclusion of the LDMS and the BIA from certain performance standards:
1. Performance standards (b), (c) and (h) relate, respectively, to parking loading and access, outdoor storage, and servicing and loading hours. Mr Johnson advised (para.14) that he supports Mr Ferguson-Pye's recommendations on these requests. 2. The request in relation to performance standard (b) is to exempt the LDMS and the BIA and to insert a new standard (n) (as set out in submission point 22). The requests are assessed at paras.4.181 - 4.187 of Mr Ferguson- Pye's evidence, supported by Mr Malley's evidence. The recommendation is to accept the request subject to the retention of the standard relating to disability parking. We agree with this recommendation and the requests are accordingly accepted in part. 3. Mr Ferguson-Pye has a made thorough assessment of the requests relating to (c) and Rule 12.6.2 (d) at paras.4.76 - 4.103 and we accept his recommendations for the reasons given. 4. In relation to (h), Mr Ferguson-Pye and Mr Lloyd have concluded that the LDMS should be excluded from the performance standard because its 24 hour operation is now part of the acoustic environment, but that new development in the BIA should not be exempt, though such development is likely to be sufficiently distant from houses for there to be no significant operational constraint. For these reasons we accept the request to remove the LDMS from (h) but reject the request to remove the BIA from (h).
671) The issue relating to the appropriateness of Rule 12.6.1(m) has led us to rewrite (m) as a new rule, 12.6.2, for the BIA, which will in turn incorporate (by reference) the relevant performance standards as amended above. There is a consequential amendment to Rule 12.6.1 include a cross reference to Rule 12.10.1 to make it clear that industrial activities that are not dairy related are not permitted activities in the BIA. It will be necessary to renumber Rule 12.6.2 as 12.6.3.
672) Rule 12.6.2 (now 12.6.3): this Rule limits new buildings and structures (otherwise generally permitted by the Rule) to alterations and additions of limited size to existing buildings - performance standard (k). Unlike Rule 12.6.1(m), we think that the proposed restrictions in (k) do operate validly as a
116 1991 performance standard, though we would have preferred a separate rule. However the main issue in contention in regard to (k) is the floor area 2 restriction. Fonterra requests that the 500m gfa or footprint limit be replaced 2. by 10,000m
673) In support of this request Fonterra says that any issues which are relevant to the question of scale will have been addressed in the CDP. For the reasons given above, we do not agree. We will consider the role of the CDP and the nature of discretionary assessment of further development under Rule 12.8.5 below. So far as performance standard (k) is concerned, the intent is to limit the scale of permitted development to a level which is unlikely to trigger any concerns about visual or amenity effects. We agree with that scope. It follows that some limit on the size of permitted development is required, and while we may have accepted a somewhat higher gfa/footprint, we have no evidence on which to assess any greater size. In our view however, a 10,000m2 gfa/footprint building is far too large to classify as permitted in this context.
674) The second request in relation to Rule 12.6.2/3 is that the LDMS should be exempted from performance standard (g). We suggested at the hearing that Fonterra and Council could discuss this issue further, and we accept the agreed position submitted in the memorandum from Mr Ferguson-Pye of 10 December 2015.
675) The third request is to exempt the LDMS from (d) which deals with landscape amenity. As we noted above in our assessment of Rule 12.6.1, (d) was thoroughly considered by Mr Ferguson-Pye at paras.4.76 - 4.103 and by Mr Hudson at paras.11-14. We concur with their recommendations, and a new standard (d)(iv) is added. To that extent, the request is accepted in part.
676) Rule 12.8.5: As noted previously, this Rule classifies most building (viz. anything which is not permitted) in the BIA as restricted discretionary. The Rule is complex and lengthy: it lists the aspects of discretion; sets performance standards (which must be met to qualify as restricted discretionary); and then lists assessment criteria. The Rule contains four separate sets of explanations and a set of notes for Plan users, and is over 6 pages long. We are not usually concerned with the structure and language of provisions unless these are aspects raised in submissions - however in some cases length and complexity can be barriers to understanding, and in such cases we have tried to simplify provisions without altering their designed effect.
677) As with any restricted discretionary rule, Rule 12.8.5 identifies the matters that the discretion is restricted to. The submission requests the deletion of 'design', 'landscape amenity', 'hydraulic neutrality with regards to stormwater', and 'the matters described in section 108'.
678) We agree that 'landscape amenity' is (for this purpose) within 'visual amenity' and will be deleted.
679) In relation to stormwater, the relevant technical experts from Council, Horizons and Fonterra have agreed on an amendment. The discretion is to be described as 'stormwater management'. There is agreement on a new assessment criterion in relation to stormwater for the CDP which we refer to below.
680) The reference to matters within s.108 as a discretion is far too broad and imprecise, and we agree that it should be deleted from the list as requested.
117 1992
681) The reference to design (within 'layout, design and scale') is necessary to implement the objectives and policies referred to above, particularly City View Objectives 1,8, 10 and 11 and Section 12 Industrial Policy 3.2 and Objective 4 and its two policies. Of course, any assessment of design must occur in the context of site layout and the functional requirements of buildings or structures, but we accept Mr McIndoe's evidence that this context does not preclude the consideration of good design principles. We therefore reject this request.
682) We now turn to other issues raised in the detailed provisions of the Rule.
683) The first issue in this Rule is whether the requirement for a CDP does, or should, reduce the breadth of assessment needed for subsequent development. In other words, if something is approved in a CDP it should not have to be considered again. The second set of issues is whether the scope of the CDP is appropriate. The third set of issues is whether the range of matters to be considered in assessing developments is appropriate. The fourth issue, having regard to the answers to the first three, is whether the Rule itself can be usefully simplified without compromising its effect.
684) In our view, the answer to the first issue should be that if a pattern of future development is approved under a CDP, then that approval should be a starting point for future consent applications which would then be concerned with matters that have not been addressed in the CDP and/or with any aspects which are at variance with the CDP. This does not appear to be done consistently in the proposed assessment criteria: for example, criterion (b) (Layout and Design) mostly refers back to the CDP; however criterion (e) appears concerned with infrastructure issues which are meant to be covered by an approved CDP.
685) The second set of issues concerns the scope of the CDP which is set by the performance standards.
686) There are several requests to delete or amend specific performance standards.
1. We agree with Mr Johnson that reference to 'activities' is inappropriate given that they will all be permitted (or require non-complying activity consent). Performance standards (a)(ii)-(iv) should be redrafted to limit them to buildings and structures. 2. We agree with Mr Ferguson-Pye's recommendation at para.4.234 to delete 'details' and insert 'indicates' in performance standard (a). 3. Performance standard (a)(v) will be amended as requested, and recommended, to read 'the location of any stormwater detention area'. 4. Performance standard (a)(vii) relates to 'internal landscape planting areas' and the submission requested that it be deleted as being incompatible with operational requirements. The recommendation from Mr Ferguson-Pye is to accept this but he has proposed a new (vii) which concerns planting on the southern boundary. Mr Hudson did not think that it was appropriate to delete (vii) as notified. Though we accept Fonterra's point, referred to above, as to the need to exclude potential pest habitats, we also accept Mr Hudson's view that internal landscape design remains important, and he did emphasise (in answer to a question) that this does not necessarily require planting. We conclude that the appropriate solution is to reword (vii) as two separate matters, being the type of planting on the southern boundary, and 'internal landscape design' which will cover both planting where/if
118 1993 appropriate and 'hard' design such as walls, earthworks etc. We do not see any need to amend (vi) as proposed by Mr Ferguson-Pye - as currently worded it would include both eastern and southern boundaries. To this extent the request is accepted in part. 5. Performance standard (a)(viii)/(ix) relates to infrastructure provision, and the submission requests the removal of 'network'. This is recommended by Mr Ferguson-Pye and we accept it for the reasons given in the submission. 6. Performance Standard (c) requires amendment to give effect to decisions on relevant performance standards under Rule 12.6.1. 7. In other respects, we think that the performance standards are necessary to focus on the aspects of discretion.
687) The third set of issues concerns the proposed assessment criteria. These are divided initially into two categories: those for the CDP and those for new buildings and structures. The submission contains seven requests for amendment or deletion of assessment criteria. The determination clause states that any application will be assessed in terms of the assessment criteria in addition to the objectives and policies referred to above. We do not think that, on the whole, the assessment criteria are necessary and that they may be somewhat inflexible. However we recognise that the draft reflects discussions between the Council and Fonterra, and that the only requests to change the assessment criteria are those in the Fonterra submission. We now address these as follows:
Assessment criteria (a)
688) The submission requests amendment to the bullet points in (a)(ii). Mr Ferguson-Pye recommends acceptance of these amendments. We accept that request.
689) An amendment is requested to (a)(iii) to remove 'public spaces'. Mr Ferguson- Pye and Mr Hudson agree, and we accept that request.
690) An amendment to (a)(iv) is requested to limit its application to the eastern and southern boundaries and to remove the reference to the neighbouring industrial area. We accept the second of these requests as the LDMS is not part of the BIA. However we reject the first request. The reasons are the same as for those given to reject the deletion of performance standard (a)(vii) above.
691) A request to delete (a)(xi) is accepted in part by deleting the current text and substituting the text in Ferguson-Pye's recommendation which we understand has been agreed among the respective advisers for Council, Horizons and Fonterra.
Assessment criteria (b)
692) The request to delete 'design' from the heading is rejected for the same reasons given above in relation to the request to delete design as a matter of discretion. However we accept the addition of 'scale' as requested for consistency with the description of the matter of discretion.
693) The request to amend (b)(iv) has been recommended by Mr Ferguson-Pye (para.4.205) and we accept it for the reasons given by him, and in the submission (point 34).
119 1994 Assessment criteria (c)
694) The request to amend (c)(i) is rejected. Our reasons are the same as for rejecting the request (and recommendation) in relation to performance standard (a)(vii). We do however change 'landscaping' to 'landscape design', and reiterate the comments above that it should not be completely synonymous with planting. In short, we do not think it appropriate to limit on-site landscape design to boundary planting.
695) We reject the request to delete (c)(ii). We think that it is a consideration which is consistent with the objective and policy framework identified above. Again the word 'landscaping' should be deleted and replaced with 'landscape design', and this will also occur in (c)(iii) for consistency. We note, but do not accept Mr Ferguson-Pye's recommended new (c)(ii): in our view this might be an outcome but we think it is too narrow as an assessment criterion.
Assessment criteria (d)
696) The requests on (d) relate to the heading, and clauses (i), (ii) and (v).
697) Mr Johnson's view was that the components of the criterion were unnecessarily complex, referential, and in some cases unnecessary because the CDP should be the means by which any matters of visual effect beyond the site should be assessed. If Mr Johnson's premise is correct, his views have some force. However as we have indicated above - and will emphasise below - we do not think he has given sufficient weight to the objective and policy framework that must guide this set of issues.
698) We do not accept the underlying request which is to limit the scope of design assessment and to put an almost determinative status on 'operational and functional requirements'. Accepting this request would create a significant possibility that development will simply reflect functional requirements. We refer to our conclusions on these issues above. And we accept Mr McIndoe's evidence that similar functional outcomes appear to have been successfully achieved in different ways. On reflection however, we accept Mr Ferguson- Pye's recommended changes to (i),(ii) and (v) which may go some way to addressing concerns that the criteria may not give sufficient weight to operational/functional requirements. To this extent the requests are accepted in part.
Assessment criteria (e)
699) The submission requests the deletion of (e)(ii). We are unsure as to whether this remains an issue as it was not covered in the Fonterra evidence and the position in relation to stormwater has been largely agree (we understand) in the new assessment criterion (a)(ix). In the context of the potential development life span of the BIA we see no problem with the ability to consider and recognise 'innovative or low-impact stormwater design', particularly if it arises as an exception to an approved CDP. We therefore reject this request.
Assessment criteria (f)
700) The submission requests an amendment to (f)(iii) to include reference 'to operational, functional and regulatory requirements'. The request is recommended by Mr Ferguson-Pye and we accept the proposed amendment.
120 1995
Assessment criteria (g)
701) The submission request the deletion of (g)(iii). We accept the request as the matter is adequately covered in the CDP assessment criteria.
702) Section 4 Definition: The submission requests an amendment to the definition of 'Dairy Related Industrial Activity' by deleting 'network utilities' in para.(e) and substituting 'infrastructure'. We agree and note that this is consistent with the approved change to Rule 12.8.5(c) above. This request is accepted accordingly.
703) Mapping: we accept the request to identify the BIA and the LDMS on Planning Maps 24 and 30 (recommended by Mr Ferguson-Pye at para.4.276).
Decision
704) The submission requests on PC15F listed above are accepted, accepted in part, or rejected as described in paragraphs 651-704 above for the reasons variously given in those paragraphs, the submissions or the recommendations in the section 42A report.
121 1996
13. Plan Change 15G Utilities
Background
705) The purpose of PC15G is to review the Plan provisions for utilities which are contained primarily in Section 23 Utilities. The review of Utilities provisions however extends to provisions of the MDC Operative District Plan which currently apply in the boundary change area (BCA) of the City - hence its inclusion within Plan Change 15.
706) In this context, 'utilities' are network utilities - in other words those distributional networks involving services such electricity, gas, communications, water and wastewater. Transportation networks (such as roads, rail and aviation services) are covered elsewhere - primarily in Section 20 Transportation or Section 13 Airport Zone (as proposed by PC15H)
707) As with other aspects of the Plan review, PC15G is shaped, to a significant degree, by the relevant provisions of Part 2 RMA and by national and/or regional policies which must be given effect to. The Plan itself also contains City Wide Objectives (in Section 2) which reflect and give effect to these higher policies:
Objective 3: Integrated and efficient provision of, and access to infrastructure, network utilities and local services is facilitated for all residents. Objective 25: Infrastructure and physical resources of regional or national importance are recognised and provided for by enabling their establishment, operation, maintenance, upgrading and protection from the effects of other activities.
708) An overview of the purpose of PC15G is provided in the section 42A from Lucy Cooper:
1.2 The Network Utilities section (Section 23) of the District Plan provides the resource management framework that relates to network utilities within Palmerston North City Council, including those network utilities identified in the Horizons One Plan as being of regional or national importance (and in respect of which the District Plan must contain provisions). The purpose of PPC18 is to review the Utilities Section of the District Plan, in line with the Sectional District Plan Change Review process, and to:
Recognise and give effect to the National Policy Statement for Electricity Generation (NPSET), National Environmental Standard for Electricity Transmission Activities (NESETA) and the National Environmental Standard for Telecommunication Activities (NESTF); Avoid unnecessary duplication or discrepancy between the District Plan and other legislation and regulations that control and manage network utilities; Rationalise provisions throughout the District Plan; and Give effect to the RPS provisions in respect of regionally and nationally important infrastructure.
PC15G provisions in brief
709) The high level changes proposed by PC15G are summarised in the Section 32 accompanying its notification:
122 1997
2.7.61 PPC15G proposes two objectives in place of the current four. The reduction in the number of objectives reflects a degree of reorganising and consolidation of the environmental outcomes anticipated by the existing objectives, but more significantly reflects the focus of the national and regional policy network to which the District Plan must give effect. In the case of radiofrequency transmitting equipment, the regulations established in the NESTF removes the necessity for this to be managed by the District Plan, as safe operating limits are now enshrined in NESTF. In summary, the changes are:
Provision of objectives expressly concerning regionally or nationally important network facilities, giving effect to both the RPS and the NPSET. Consolidation of existing objectives concerned with avoiding, remedying or mitigating the adverse effects of network utilities into one objective. Removal of the radiofrequency transmission objective.
710) In fact, PC15G proposes three objectives, and the differences to those in Section 23 are by no means semantic. The subordinate policies are largely similar (albeit differently worded) and only those relating to radiofrequency transmitting equipment have been deleted along with the relevant objective.
711) The proposed rules substantially retain the existing provisions albeit with some additions to scope and changes to performance standards. New rules are also proposed as follows:
a) new permitted activity Rule 23.7.3 for activities in the National Grid Yard. b) new restricted discretionary activity Rule 23.9.2 relating to construction of buildings and structures near National Grid substations at Linton and Bunnythorpe c) new non-complying activity Rule 23.11.2 specifying certain activities within the National Grid Yard d) new prohibited activity Rule 23.12.1 relating to activities within Airport REPAs and protected surfaces.
712) We note here that a draft of PC15G was sent to all known network utility operators prior to notification, and many of the submissions made concern matters of detail in rules and explanations.
Submissions
713) Eighteen submissions were received on PC15G almost all of them from organisations involved in the provision of network services. A number of further submissions were received. Because of the large number of submission points/requests in many of the submissions, we refer to Appendix 1 of the section 42 A report as a complete summary of the 177 decision points raised by these submissions.
Hearing
714) PC15G was heard on 11 and 12 November 2015. The Council's reply to matters raised in the hearing was received on 9 December 2015
123 1998 715) The Council was represented by Lucy Cooper, Rowan Sapsford (who both prepared section 42A reports) and Jonathan Ferguson-Pye and Michael Duindam. As noted above, Ms Cooper later submitted an extensive and comprehensive reply covering the outstanding issues.
716) Heritage Estates and Pioneer City West were represented by Lisa Poynton.
717) KiwiRail Holdings was represented by Rebecca Beals.
718) Transpower was represented by Dougall Campbell and Jason Jones.
719) Horticulture NZ was represented by Lynnette Wharfe.
720) Chorus and Spark were presented by Graeme McCarrison (Spark), Mary Barton (Chorus) and Louise Miles.
721) Further written material was received on behalf of Mighty River Power (from Miles Rowe); Horizons (from Pen Tucker); Powerco (from Mark Laurenson) and Radio NZ (from Hadleigh Pedler).
Assessment
722) In assessing the submission requests we have generally followed the same categories or topic groupings used in the section 42A report, except that we have considered the Kiwi Rail submission separately within the Section 23 topics:
a) Overall approach to PC15G b) Cross references and consistency within the Plan c) Section 4 Definitions d) Title (ambit) of Section 23 e) Section 23 General submission on typographical error: f) Section 23 Introduction g) Section 23 KiwiRail submission h) Section 23 Resource Management Issues i) Section 23 Objectives, policies and explanations j) Section 23 Rules k) Section 6 Earthworks l) Section 7 Subdivision m) Planning Maps n) Section 10 Residential Zone and Section 12 Institutional Zone
723) The list of topics can be further divided into those which are now agreed or relate more to Plan legibility and consistency and do not require any significant further assessment, and those which are significant and/or remain in dispute and require some detailed assessment and reasons.
724) We begin with the first category which includes topics (a) - (f) and (m) - (n) above. In this first category most of the requests are recommended for acceptance. In the second category, the remaining topics are assessed in more detail.
725) Except where otherwise stated all paragraph references relate to the Section 42A report prepared by Lucy Cooper.
124 1999 Topics (a) - (f) and (m) - (n)
726) Overall approach to PC15G: we agree with and adopt the analysis in paras. 6.1 - 6.4, and the recommendation in para. 6.4.
727) Cross references and consistency within the Plan: we agree with and adopt the analysis in paras. 6.5 - 6.14, and the specific recommendations in paras. 6.9 - 6.10 and 6.12.
728) Section 4 Definitions: we agree with the observation in para. 6.16 that the request by the Oil Companies is not within the scope of PC15G (or within the scope of PC15 generally). Moreover we do not see any benefit in having a Plan definition of a terms which already defined in section 2 of the Act.
729) We agree with and adopt the analysis and recommendations in paras. 6.18 - 6.23 in relation to the proposed definitions of 'aerial', 'antenna' and 'antenna dish' and 'line' and 'mast'.
730) In relation to the definition of 'minor upgrading' (and noting that 'minor upgrade' is a permitted activity) this must be assessed in a limited context where the physical structure to be upgraded could not meet the performance standards for a permitted activity and might not be allowed by existing use rights. In other words, the upgraded structure would require a resource consent if it was a new structure, but some upgrading is permitted to reflect the continued value and importance of the existing structure. Our understanding of the issues was enhanced by the visual material produced in support of the Spark and Chorus submissions. In our view the amendments requested and recommended in relation to the definition are generally within an appropriate range and we accept the analysis and recommendations at paras.6.25 - 6.36, as supplemented and modified by those in Appendix 1 of Ms Cooper's Reply Memorandum of 8 December 2015 .
731) In relation to the 'national grid' definition(s) we accept and adopt the analysis and recommendations in paras. 6.37 - 6.39.
732) In relation to the definition of utility structure (and its relationship with the definition in NESTF), we accept the analysis in paras.6.40 - 6.43 and the amended definition which has been recommended.
733) Section 23 title and ambit submission by MRP: we accept and adopt the analysis and recommendations in paras. 6.44 - 6.48.
734) Section 23 general submission by Transpower on typographical error: we accept the recommendation in para.6.49
735) Section 23 Introduction submissions by Chorus, Spark and Transpower: we accept the recommendations in paras. 6.50 - 6.51.
736) Planning maps submissions by Transpower, Heritage Estates, PNCC, Vector Gas and Mr Pirie: we agree with and adopt the analysis and recommendations in paras. 6.196 - 6.200. We agree that the recommended amendment and notations are an efficient solution to the issue of Plan legibility.
737) We also agree with the analysis and recommendation in para. 6.201 in relation to the Vector submission.
125 2000
738) Section 10 Residential Zone and Section 12 Institutional Zone submission by Powerco: We agree that in relation to Section 10 Residential Zone the submission is not within the scope of PC15G, and to this extent it is rejected.
739) We also agree that the notes recommended for inclusion in the Industrial and Institutional Zones are desirable and will be included for the reasons given in para. 6.202.
740) The submissions in respect of the above topics (a) - (f) and (l) - (m) are accepted, accepted in part or rejected for the respective reasons given and/or adopted above.
Topics (g) - (l)
Section 23 KiwiRail submission
741) The submission from KiwiRail Holdings concerns the definition of 'minor upgrading' in Section 4 and the inclusion of this activity in Section 20 Transportation. As proposed this definition applies only to Section 23: Network Utilities. The proposed Introduction to Section 23 makes it clear that rail and road networks are not included within the Section. Consistently with this, the objectives, policies and rules of Section 23 do not deal with the rail network.
742) More broadly, KiwiRail requests that the 'operation, maintenance and upgrade of the rail corridor and associated support infrastructure' be provided for. This could be achieved by the insertion of relevant provisions into Section 20 Transportation.
743) In her evidence Ms Beals acknowledged that the entire rail network is designated and (we understand) that this has presented no barrier to KiwiRail managing and upgrading its network as and when it thinks it appropriate to do so. She nevertheless thought that permissive rules would be advantageous, if only to avoid the need for the outline plan approval process under which certain proposals, authorised by designation, must be submitted to the Council so that it can consider them and make any requests. She also noted that some parts of rail infrastructure (eg private sidings) will be outside the designated corridor.
744) These points were considered by Ms Cooper in her reply.
745) We do not think that the provisions requested by KiwiRail are necessary or desirable. Our reasons for this conclusion are as follows:
a) There is no evidence that the historic absence of permitted activity status for minor upgrading work, or for the 'operation, maintenance, and upgrade' of the network has affected KiwiRail's ability to carry out these activities; b) The broad designation for 'railway purposes' plainly authorises all these activities; c) The requirement to submit an outline plan under s.176 applies to the 'construction' of a work on designated land. We do not think it applies to normal 'operation' or 'maintenance', nor to upgrading unless it involves some significant element of construction. In any event, the Council may waive the requirement for an outline plan. d) The parallel existence of rules and designations for the same activity raise the potential for conflict and confusion particularly if the operator can 'pick
126 2001 and choose'. If the normal management of the entire rail network in the City was permitted by rules, the need for designation would be questionable. e) In relation to private sidings, the evidence is that there are a small number of sidings servicing industrial businesses. However, the evidence does not support the conclusion that the absence of specific rules has either been a problem in the past, or is likely to become one in the future unless action is taken. In the Industrial Zone, for example, the sidings appear to be permitted activities (or ancillary to permitted activities) subject to compliance with relevant standards.
746) For these reasons the submission is rejected.
747) A final element of the submission is a request for a new access standard to be set into Rule 20.3.9.1 requiring vehicle crossings to be set back a minimum of 30m from a level crossing. The section 42A report recommended the acceptance of this request. At the hearing, we raised the issue of scope: this a a Rule which applies to all zones, and it seemed to us that PC15 does not extend to a review of provisions applying to all these zones. On that basis we do not think that we have jurisdiction to accept the request and must therefore reject it. This decision does not reflect any view if the merits of the request, though we would expect it to be supported by appropriate evidence. We leave it to the Council to renew this request by way of a further plan change if it thinks it appropriate to do so.
Section 23 Resource Management Issues
748) The statement of resource management issues is not a requirement in district plans. Nevertheless a district plan may state the 'significant resource management issues of the district' (section 75(2)) and the Plan does so on a consistent basis. This begins with the City Wide issues listed in Section 2 and many chapters then list issues which are specific to those topics. In this context 'issue' might be synonymous with 'topic' or 'question'. A statement of issues in the Plan should inform the reader as to what aspects of resource management are to be addressed.
749) Although the statement of issues is not mandatory, when it is used it is important because it defines the context for everything that follows.
750) PC15G sets out three issues. The submissions requesting changes concern Issues 2 and 3. These submissions are described at paras. 6.52 - 6.68 of the section 42A report.
751) The submissions on Issue 2 are from Federated Farmers, Chorus and Spark. Federated Farmers request a specific acknowledgment that 'landowners' may be subject to adverse effects. Chorus and Spark request a more substantial rewording of Issue 2 and consequential amendment to the explanatory text.
752) On the Federated Farmers submissions we agree with Ms Cooper that 'environment' is defined to include people and communities. We do not see the need to expressly include landowners - though they would plainly be a significant part of any community subject to potential adverse effects - partly because they are already included, and partly because doing so might be read as endorsing the view that effects on owners are necessarily a more significant issue than effects on other people. We therefore reject that request.
127 2002
753) On the Spark and Chorus requests, we note the advice from Ms Miles that these submitters accept the section 42A recommendation. We also agree and regard the proposed amendments as more apt to an assessment of policies. These rejects are accordingly rejected.
754) The submissions requesting changes to Issue 3 are from Powerco and Transpower. Powerco requests removal of the reverse sensitivity words at the end of Issue 3 and the insertion of new explanatory text. Transpower requests the addition of 'development' and the replacement of 'important' with 'significant'.
755) The section 42A report recommends acceptance of the Powerco request. We agree with the reasons given in the submission and at para. 6.61 and Issue 3 is to be amended accordingly.
756) The Transpower submission was canvassed at paras. 6.62 - 6.66 of the section 42A report, by Mr Jones at paras. 54 - 65 of his evidence and by Ms Cooper in Appendix 4 of her reply. In terms of the evidence, the end position is that Ms Cooper agrees with Mr Jones' reasons for Transpower's proposed amendments to Issue 3 and Objectives 1 and 2 and Policy 2.1. For these reasons we accept Transpower's request to include 'development' in Issue 3.
757) The use of 'important' reflect the wording of relevant RPS policies, and we do not accept that replacing it with 'significant' (which we regard as a synonym) adds to the clarity of Issue 3. That request is therefore rejected.
Section 23 Objectives and Policies
758) PC15G has three Objectives, each with subordinate Policies. Submissions requesting amendments to these provisions were received from Transpower, Horticulture NZ, Chorus, Spark, Powerco, Airways Corporation and Vector Gas.
759) Returning to Transpower's request to include 'development' in appropriate Objectives and Policies, we agree with the revised recommendation (discussed above in the context of Issue 3) to include this amendment. This request is accordingly accepted.
760) In relation to Objective 1 Policy 1.1 we accept the request to insert a comma after 'National Grid' for the reasons given in the submission and in para. 6.69.
761) In relation to Horticulture NZ's submission on Policy 1.1 (ii) we agree with and adopt the analysis and recommendation at para. 6.70. Ms Wharfe (on behalf of Horticulture NZ) did not pursue the request. This request is therefore rejected.
762) In relation to Objective 2 Policies 2.1 and 2.2 and explanatory text, Chorus and Spark requested amendments which are related to the requested amendments to Issue 2. In her evidence (Annexure B) Ms Miles indicated that the requests in relation to Policy 2.2 and the explanation are not pursued. However the request to add 'to the extent practicable after 'mitigation' remains as an amended request.
128 2003 763) The experts' disagreement in relation to this request on Policy 2.2 is whether the qualification has to be stated or whether it is implicit. In favouring the latter view, we accept that while 'avoided' on its own is a very strong direction (though rarely absolute), the use of 'avoided, remedied or mitigated' cannot be reasonably be read in the 'absolute' way that concerns the submitter. In this policy, that point is reinforced by the following list of factors which must be had 'regard to'. The need for balance is thus not only inherent but also explicit. In our view the words requested are simply unnecessary and we therefore reject this request.
764) The request by Powerco in relation to an amendment to Policy 2.3 is assessed at para. 6.61 of the section 42A report and we adopt that recommendation for the reasons given.
765) We understand from Mr Jones and from para. 78 that the request by Transpower in relation to Policies 2.1 - 2.4 is not pursued. It is therefore formally rejected.
766) The Transpower request to add a new Policy 2.5 is explained in Mr Jones' evidence. The section 42A report recommended against the request (para.6.79 - 6.82). However Ms Cooper's reply includes the requested policy in her recommended text (though the point is not discussed specifically in Appendix 4). We agree that it should be included for the reasons given by Mr Jones at paras. 67 - 74 of his evidence. This request is therefore accepted.
767) Objective 3 is concerned with 'network utilities and associated activities' which do not have regional or national importance. Making this distinction (which gives effect to the RPS and NPSET) does not diminish the importance of local infrastructure which is often of critical importance to the local communities who rely on it. However the policies are different and more extensive. Specific requests have been made to amend Policies 3.2 and 3.5 and to delete 3.9.
768) We agree that Policy 3.2 should be amended to resolve the inconsistency identified in the Chorus and Spark submissions. These requests are accepted and Policy 3.2 is amended as recommended.
769) Chorus and Transpower made requests on Policy 3.4. There are two elements to the Chorus request: that it apply only to 'new' network utilities, and that overheard connections from existing overhead support structures be permitted. Transpower requests that economic constraints be included in the first bullet point.
770) These submissions are assessed at paras. 6.146 - 6.160 of the section 42A report. Ms Cooper maintains her view that the requested amendments to the Policy should be rejected.
771) Ms Miles gave evidence in support of the Chorus request, and we note that there is a further request to amend peformance standard (d) which we consider below.
772) Mr Jones gave evidence in support of the Transpower request.
773) In our view both requests are directly contrary to the purpose of the Policy, which is described at some length at paras 6.129 - 6.135. The importation of economic constraints is potentially an escape clause from any amenity
129 2004 protection measure. It makes the Policy ambivalent and largely pointless, as we suspect that undergrounding will almost always be more expensive than continuing overhead. In relation to Transpower, in particular, Ms Cooper notes that the Policy and the Rule hardly have any current practical application to it as its lines are almost all in the Rural Zone. For the much the same reasons we do not accept the amendments proposed by Chorus. In the case of the Chorus request, an additional factor is that the requested wording goes beyond the practical requirements outlined in its evidence which we will return to below.
774) For these reasons, both submissions on Policy 3.4 are rejected.
775) In relation to Policy 3.5 both Transpower and Vector Gas argue that co-location may be, in some cases, either undesirable or unfeasible. We agree with the assessment and recommendation to amend Policy 3.5 (at paras. 6.86 - 6.87). These requests are therefore accepted.
776) The requests by Chorus and Spark to delete Policy 3.9 (because it would create unrealistic expectations) was supported by Ms Miles. However she offered, as an alternative, amended wording which Ms Cooper recommended in her reply. We acknowledge the points made by Ms Miles that the submitters would generally consult with potentially affected communities, and by Ms Cooper that the Policy simply intends to reflect good practice. We think that the proposed amendment achieves good balance in this context and accept it.
777) The requests are therefore accepted in part.
Section 23 Rules
778) There is a range of submissions on the proposed rules from Radio NZ. Airways, Chorus, Spark, MRP, Federated Farmers, Transpower, Horticulture NZ., Powerco, Pioneer City West and Heritage Estates. Most of the requests relate to the permitted activity rules. Many of the requests are intended to clarify the meaning and extent of the relevant rule, often in relation to a particular activity, However some of the requests relate an extension of the proposed rule.
779) First we reiterate our acceptance (para. 727 above) of recommended new Rule 23.7.1 which sets out the relationship between the Chapter 23 Rules and other Zone Rules in the Plan and addresses the Powerco submission in this regard. The numbering of the following rules will be amended accordingly but in this section of the decision we have retained the existing (notified) numbering.
Rule 23.7.1
780) Dealing first with Rule 23.7.1 we agree with and adopt the analysis and recommendations on the requests relating to wording and clarification in paras. 6.95 - 6.101 of the section 42A report. Those requests are accepted for the reasons given in the report.
781) We then turn to requests in relation performance standards (a), (g) and (i) in Rule 23.7.1.
130 2005 Height performance standard (a)
782) Performance standard (a) is complex because it covers a range of different kinds of structures which will exist in different settings.
783) In relation to the Chorus and Spark requests, following the reply from Ms Cooper we understand that her recommendations substantially accept the revised requests contained in Ms Miles's evidence. We therefore accept those recommendations, and the Chorus and Spark requests in relation to (a) are accepted in part for the reasons given by Ms Miles in paras. 63 -73 of her evidence.
784) In relation to the Powerco request seeking to exclude various structures from height controls, we agree with Ms Cooper that the height restrictions serve an important amenity protection purpose and are necessary to implement Objectives 2 and 3 and their relevant policies. In our view the resource consent process is the appropriate way to investigate the balance between the interests of the network operators, the benefits of their activities and the amenity effects of those activities when the height of specific structures reaches a point where environmental 'fit' is less certain.
785) In relation to the Transpower request seeking an increase permitted mast height in the Conservation and Amenity Zone with and adopt the analysis and recommendations at para. 6.105 of the section 42A report. We understand that Transpower does not pursue this aspect of its submission, and it is formally rejected.
786) In relation to the Airways request we agree with and adopt the analysis and recommendations at para. 6.107 of the section 42A report.
Reinstatement of ground: performance standard (g)
787) The submissions from Powerco and Vector Gas both request amendment to (g) on the basis that reinstatement to the same condition may be impossible. The wording of the two requests is different, but the intent is similar: a reinstatement of ground to as near as possible the condition which existed before the construction.
788) While we accept Ms Cooper's reasoning at paras. 6.108 - 6.109, we think that compliance with (g) in a literal sense is unlikely to ever occur. If that is so, it would risk making the permitted status of any work under Rule 23.7.1 probably illusory if it involved ground disturbance. In reality we think that (g) involves a 'near as possible' rather than 'exactly the same' requirement. On that basis we prefer the Vector amendment importing 'as close as practicable', but we do not agree to the proposed consultative obligation. This is consistent with the revised approach favoured by Mr Laurenson for Powerco. In our view 'practicable' means 'reasonably capable of achievement'. If, in any particular case, there is doubt as to how this is to be achieved then consultation with any affected people would be an obvious step.
789) Performance standard (g) is accordingly amended to insert 'as close as practicable' after 'reinstated' and the submissions are therefore accepted or accepted in part.
131 2006 Radiofrequency field exposure performance standard (i)
790) In relation to the Chorus, Spark and Transpower requests, we agree with and adopt the analysis and recommendations in paras. 6.110 - 6.111 of the section 42A report. These submissions are accordingly accepted.
Rule 23.7.3
791) The matters at issue in the requests from Powerco, Federated Farmers and Horticulture NZ appear to be largely resolved by the section 42A report. Neither Powerco nor Horticulture NZ pursued the one aspect which was recommended for rejection (and we did not hear from Federated Farmers on this topic).
792) We agree with and adopt the analysis and recommendations at paras. 6.112 - 6.121 of the section 42A report and the submissions are accepted, accepted in part or rejected accordingly.
Rule 23.11.2
793) We agree with and adopt the analysis and recommendation at paras. 6.122 in respect of Transpower's submission on this point which is accordingly accepted.
Undergrounding and overgrounding of lines and pipes: Rule 23.7.1(d)
794) This topic involved a number of submissions involving telecommunications, electricity and gas. It also involves activities with different classifications. For that reason, we will again approach the assessment of submissions in much the same order as in the section 42A report.
795) The relevant provision is performance standard (d) in Rule 23.7.1. There are exceptions for rural areas, upgrading etc of existing lines and temporary lines. but other lines and pipes must not be 'above ground'. Literally then, any line or pipe on the ground may be regarded as above it.
796) The background to this provision is explained at paras. 6.129 - 6.135 of the section 42A report.
The wording of performance standard (d)
797) The Pioneer City West and Heritage Estates request for 'Lines shall be buried below ground except...' is accepted as a better expression of the intent of performance standard (d).
Telecommunications lines
798) We were persuaded by the evidence of Mary Barton for Chorus that lines which are surface mounted or fixed to structures a short distance above ground need not necessarily have any adverse effects and may have significant positive effects in enabling more affordable connections:
23. Chorus is constantly reviewing the methods it uses for connecting
132 2007 customers and has recently developed a "ruggidised" cable that can be either surface mounted or shallow buried. We have found this deployment method to be an efficient way of connecting customers quickly without the need for significant civil works. By surface mounting the cable onto existing fences, kerbs or similar within property boundaries (not within road reserve) we are able to avoid disturbing protected features such as archaeological sites and heritage trees in addition to removing the need to dig up driveways and cause disturbance to residents ability to access their properties during installation.
799) In her reply, Ms Cooper proposed a controlled activity rule to cover this situation. Our preference is that such lines be permitted in specified conditions where:
a) the line is a line as defined in the Telecommunications Act b) and is a customer connection attached to an existing structure c) and is located on private land d) and the height of the line above ground is no more than 400mm
800) As noted above, we do not see any necessity to amend Policy 3.4 to reflect this limited exception.
801) A Minute was issued on 10 June 2016 asking Council and Chorus to confer on the wording a provision to give effect to this decision. The provision recommended by Ms Cooper (a new permitted activity rule) is in Appendix 1 at Section 23.7, and reflects our preference above.
802) Chorus' reply accepts paragraphs (a) to (c) of the proposed but opposes para.(d) with the height limit of 400mm. Chorus does not propose any alternative height limit and refers to a range of possible situations where the 400mm height limit would be inappropriate. One of these situations is where the where the line will be attached to and run up the side of the end user building. Our view was that the Section 23 Rules on above ground connections do not apply to any line or pipe which is attached to the building being serviced by it, but to remove any doubt, the Rule proposed by Ms Cooper is accepted subject to an amendment as follows: 'for the avoidance of doubt paragraph (d) does not apply where the line is attached to the connected customer's building' Accordingly, the request from Chorus is accepted in part.
Electricity lines
803) Submissions from Transpower and Powerco made requests for exceptions to performance standard (d).
804) Transpower requests an exception for National Grid lines. As noted in para. 6.128 of the section 42 report, National Grid lines are located almost entirely within the Rural Zone where the performance standard does not apply. The NESET contains rules relating to existing transmission lines. Some new transmission lines will be discretionary activities in all zones. We do not think that there should be an exception for transmission lines. We note from Mr Jones' evidence (para 84) that Transpower no longer pursues this request. This request is accordingly rejected.
133 2008 805) Powerco's request concerns the ability to replace lines. We agree with and adopt the assessment and recommendation at paras. 6.142 - 6.144 of the section 42A report. This request is accordingly accepted.
Gas networks
806) The Powerco submission requests that equipment relating to distribution networks should be expressly included in Rule 23.7.1(v). We accept the request for the reasons given in the submission and in the analysis under para. 6.162. Rule 23.7.1(v) is therefore amended as requested, and a note to performance standard (d) will state that it does not apply to this ancillary equipment.
Rules 23.9.1 and 23.9.2
807) We agree with and adopt the analysis and recommendations on the requests by Powerco, Chorus and Spark in paras, 6.164 - 6.166. Those submissions are accepted accordingly.
Rule 23.10.1
808) The Vector submission request that the 'operation, maintenance, and minor upgrading of gas transmission pipelines, is provided for as a permitted activity. Rule 23.7.1 does not include gas transmission. Para. 1.168 of the section 42A report states that the activities are classified as discretionary 'in recognition of the potential health and safety risks associated with gas, for instance the potential for explosion or leakage of gas'.
809) While Vector did not provide any further information in support of its submission, we are reluctant to accept that maintenance and minor upgrading of existing transmission pipelines should be a discretionary activity on safety grounds when those grounds might be a reason for the maintenance and upgrading. In our view these activities should be either permitted, if appropriate performance standards are available to manage safety issues, or controlled or restricted discretionary if some assessment of hazard and/or mitigation or management measures is necessary.
810) A Minute was issued on 10 June 2016 asking Council and Vector to confer on the wording a provision to give effect to this decision. The provisions recommended by Ms Cooper (Rule 23.7.1(vi) and performance standard (k)) with consequential amendments to (v) and Rule 23.10) are in Appendix 1, and reflects our preference above. First Gas Ltd (as successor to Vector) confirmed its acceptance of Ms Cooper's proposed provisions.
811) The request from Vector is accordingly accepted.
Rule 23.12.1
812) Transpower requested an amendment to insert the words 'that impinges' in (ii). We agree with the analysis at para. 6.170 of the section 42A report. We do not think that the addition of these words is useful. We note that Transpower did not pursue this request. The request is accordingly rejected.
134 2009
Section 6 Earthworks
813) Transpower requests a new Policy 1.3 (with consequential amendment to Policy 1.2). We agree that the language of the proposed provision (specifically the use of 'avoid') is consistent with NPSET Policy 10. The request is accordingly accepted.
814) Transpower has also requested a new performance condition (e) in Rule 6.3.6.1 to control earthworks within the National Grid Yard. This implements the new Policy 1.3 above. We accept the evidence of Dougall Campbell for Transpower and agree that the amendment to the Rule is necessary. The request is accepted to the extent recommended by Ms Cooper which excludes 'development' from the provision. We understand from Mr Jones that Transpower accepts this refinement.
815) Rule 6.3.6.2 is recommended by Ms Cooper to include a new exclusion from the Rule 6.3.6.1 dealing with the new performance condition (e) in that Rule referred to in the previous paragraph. Transpower accepted this and we agree with it as it will permit a range of relatively minor earthworks within the National Grid Yard, which of course continues to be used by respective owners for their own various purposes.
816) Heritage Estates requested that Rule 6.3.6.1 permit earthworks for the purpose of undergrounding electrical lines if Transpower consented to this. As proposed, those earthworks would be a restricted discretionary activity under Rule 6.3.7.2. Rule 6.3.7.2 could reasonably be read as requiring, in substance, nothing more than Transpower's consent. There is therefore some force and logic in Ms Poynton's point that HEL's proposal would achieve the exactly the same outcome at lower cost. Transpower's consent would be akin to that of a requiring authority under s.176. We are however bound to apply the law as we understand it: namely that a permitted activity cannot be conditional on a third party approval (and for the same reason we do not think that controlled activity status is available either). On that basis the request must be rejected.
817) In relation to the requests from the Oil Companies and Transpower considered at paras 6.178 - 6.179, we agree with and adopt the recommendations in the section 42A report and those submissions are respectively rejected and accepted for the reasons given.
Section 7 Subdivision
818) A range of specific amendments requested by Transpower, Mr Pirie and Powerco is considered at paras. 6.180 - 6.195 of the section 42A report. Federated Farmers made submissions supporting the retention of the relevant provisions.
819) We can deal with these matters briefly as none of these submitters opposed the analysis or recommendations in the section 42 report (both Transpower and Powerco expressly supported them, and we did not receive any further information from Federated Farmers or Mr Pirie).
820) Accordingly, we accept the recommendations in the section 42A report and the submissions are accepted, accepted in part or rejected as appropriate.
135 2010
14. Plan Change 15H Airport
Background
821) The purpose of PC15H is to review the current planning provisions relating to the Palmerston North Airport Zone. The following passages from the composite section 32 report for Plan Change 15 provide a comprehensive summary of the scope of PC15H:
1.1.82 PPC15H is a complete review of the Airport Zone and associated planning controls which protect and provide for the ongoing operation and development of Palmerston North Airport. PPC15H also removes the Airport Zone from the Transportation section of the District Plan and introduces two separate precincts with specific planning provisions.
1.1.83 PPC15H has been prepared taking into account the following matters, all of which are further addressed within technical reports and/or the component parts of this Section 32 Report:
- The need to review and update the planning provisions which protect the future operation and growth of Palmerston North Airport, in particular the air noise controls and height recessions planes - The introduction of Runway End Protection Areas (REPAs) to recognise the significant risk to buildings and human life which exists at either end of the runway - The need to apply the Airport Zone to new parcels of land acquired by Palmerston North Airport Ltd (PNAL) since the District Plan was made operative in December 2000 - The need to align the Airport Zone with the city-wide approach to the management of office and retail activities as directed by the Retail Strategy - Recognition that Airport Drive is largely undeveloped and forms a key entrance to the city - The need to give effect to the infrastructure policies within the One Plan - The results of draft consultation on PPC15.
822) The provisions of the Operative Plan affected by PC15H are largely in Section 20 Transportation. However significant land use controls affecting nearby land in other zones also exist (and are proposed to continue). These existing and proposed controls include safety provisions (such as Runway End Protection Areas and 'obstacle' limitations) and amenity and reverse sensitivity provisions in the form of noise 'contours' within which development is restricted.
823) The Regional Policy Statement requires the Council to recognise the Airport as infrastructure of regional or national importance (One Plan Policy 3-1(a)(v)). This means that RPS Objective 3-1 must be 'given effect to' by PC15H:
Objective 3-1: Infrastructure and other physical resources of regional or national importance
Have regard to the benefits of infrastructure and other physical resources of regional or national importance by recognising and providing for their establishment, operation, maintenance and upgrading.
136 2011
824) The City View Objectives in Section 2 of the Plan reinforce this direction:
23.The transport Infrastructure operates in a safe and efficient manner, and the effects of activities which could impact on the safe and efficient operation of this infrastructure are avoided, remedied or mitigated.
825) There were 13 submissions on PC15H. These are accurately and helpfully summarised in part 2 of the Council's Section 42A report. The next sections of this decision briefly outlines both the proposed provisions and the nature of the requests made in those submissions.
PC15H provisions in brief
826) PC15H creates a new Section 13 Airport Zone.
827) The Airport Zone is to be divided into 2 distinct precincts, the policies for which are set under Objective 2:
1. The core airport precinct: indicates this area is for airport operations, aviation activities, passenger facilities and related storage. Policy 2.2 is to enable activities 'which have a functional, operational or commercial connection with the Airport', and Policy 2.3 is to 'discourage' those activities which do not require Airport access.
2. The airport environs precinct: this area permits a broad range of activities, but subject in some cases to significant size constraints. Policy 2.4 is to enable a range of activities which are related to, or compatible with, Airport activities, and Policy 2.5 discourages retail and non-ancillary office activities 'which are readily provided for in the City's established Business Zones'.
828) The rules for activities reflect the policies noted above. The Core Airport Precinct has a limited range of permitted activities. The Airport Environs Precinct permits a significant range of activities, but does constrain office and retail development in the much same way as in the Industrial Zone.
829) Rules for new buildings are basically in two categories - restricted discretionary activities for those fronting Airport Drive, McGregor St or Railway Rd, and permitted in other areas of the Zone subject to performance standards.
830) Activities and buildings which do not meet performance standards are generally classified as restricted discretionary. Motels, residential centres and some ancillary retail and office activities are discretionary.
831) New dwellings, motels and residential centres are prohibited activities within the air noise contour on Map 10.7.6.3. Many activities are prohibited in Runway End Protection Areas on Map 13.2.
832) Three further rules control and/or require: 1. sound emissions in the Airport Zone 2. the airport noise management plan 3. the airport protection surfaces
137 2012 Submissions
833) Submissions on PC15H were made by the persons listed below. Some of these persons did not attend the hearing and/or did not supply any further material in relation to their submissions - however we have taken into account all submissions in making this decision, and have addressed all requests for change to PC15H. A brief outline of submissions and requests follows:
1. David Parham: better mapping of airspace protection is required so that affected property owners can see whether and to what degree limitations exist.
2. Clive Harding: requests controls on helicopters with particular attention to training flights over residential areas
3. Robert Fraser: requests controls on helicopter flights and noise over residential areas
4. Brian Green Properties Ltd ('BGPL'): requests that noise contour data, assumptions and modelling be independently reviewed; and that the most accurate noise contours then adopted.
5. Palmerston North Airport Ltd ('PNAL'): supports a number of provisions, but also opposes a number of policies and rules related to development within the Zone, particularly the need for a CDP and limitations on retail and office activities.
6. Airways Corporation of New Zealand: generally supportive, but request that navigational aids and beacons are exempt from Rule 13.4.7.1
7. Federated Farmers Manawatu-Wanganui Province: supports PC15H.
8. Transpower NZ Ltd: new prohibited activity rules are opposed on the basis that their effect on National Grid structures is unclear.
9. Manawatu-Wanganui Regional Council ('Horizons'): the concern of the submission is that development does not compromise flood protection standards in surrounding areas. Request for additional rules and standards to address any on site management of stormwater
10. William Kelly and Diane Simpson: oppose inclusion of 134 Midhurst St within the REPA
11. Bruce Wilson: requests changes to definitions and correction of typographical error.
12. Peter and Kathy Learmonth: oppose inclusion of 142 Midhurst St within the REPA
13. New Zealand Transport Agency ('NZTA'): supports exclusion of roads from structures prohibited within the REPA.
138 2013 Hearing
834) PC15H was heard on 4 and 5 November 2015.
835) The Council was represented by Michael Duindam, John Maassen, David Murphy, Iain Munro and Mark Tansley. All of them spoke to the material which had previously been circulated. Mr McCartin supplied further information on stormwater issues.
836) PNAL was represented by David Lanham (CEO), Iain Munro (Airbiz), Philip Percy (consultant planner) and Mike Garland (consultant planner). Mr Lanham provided an overview of PNAL's strategic direction and explained the background to a number of the requests in the submission. Mr Munro (who also gave evidence for the Council) covered the Airport Master Plan, the Airport role as an 'economic enabler', and the kind of commercial developments associated with airports. Mr Percy covered the 'off site' issues of REPA, air noise contours and helicopter noise. Mr Garland covered commercial development issues as well as the REPA and air noise issues.
837) Horizons was represented by Peter Blackwood and Ashleigh Gulliver. They both spoke to their respective statements detailed the Horizons concern at the potential for further Airport development creating volumes of stormwater that cannot be accommodated within the reticulated system.
838) BGPL was represented by Paul Thomas, consultant planner, who gave evidence. Mr Thomas noted that the proposed air noise contours are not supported by the Airbiz report commissioned by the Council - and that being the only technical evidence in relation to them, we should amend the contours in line with that report.
839) Mr Harding and Mr Fraser spoke separately to their respective but related submissions in relation to the nuisance effects of helicopter noise over their residential areas and the need for more effective management of the flight paths. (Fixed wing aircraft are not a noise problem). They did not feel that the complaints system was working or that there was effective management of the issue. There was an acknowledgment that the noise issue had abated in recent times.
840) Mr and Mrs Learmonth and Ms Simpson spoke separately to their related submissions in the extension of the proposed REPA onto their respective properties. Ms Simpson's evidence was helpfully descriptive of the general environment. She recounted that a few years ago a light plane made an emergency landing on a back paddock (which is not within the proposed REPA). Both submitters regard the proposed REPA and associated prohibited activity status for new building as financially damaging to them.
841) Mr Parham spoke to his submission, particularly in relation to the accuracy of Fig.13.1. He illustrated his reasons for saying that the Figure is wrong and unusable.
842) Airways Corporation was represented by Sara Cook and Mark Costello who both spoke to their respective written statements. Airways generally supports Mr Duindam's recommendations.
139 2014 843) Transpower sent in further material in a letter of 3 November from Sarah Shand.
844) In the Council's reply we heard from Michael Duindam, John Maassen, Mark Tansley and David Murphy.
845) Following the hearing, and after further discussions with Council, on 7 December 2015 BGPL withdrew its submission on PC15H and a related submission of PC15A. While we do not need to make a decision on that submission, we will, in the interests of transparency, refer to the agreement which led to that withdrawal and consider an issue which remains outstanding.
846) A further written reply from Mr Duindam and Mr Maassen covering outstanding planning and legal issues was received on 21 December 2015. A further memorandum was received from Mr Duindam on 18 January 2016 on one of the outstanding points (a proposed noise insulation standard) arising from the 21 December reply. In summary, the Council reply says:
1. The details shown on Fig.13.1 are accurate. 2. Currently prohibited activities within a REPA should be discretionary 3. Within 6 months of the 'determination' of Performance Based Navigation ('PBN') the Council will remodel the air noise contours on the BGPL land and within a further 3 months of that report it will notify a review of the air noise contours. 4. Whether or not the impact of PBN is known the Council will review the airnoise contours within 2 years if requested by BGPL.
Assessment
847) For the purposes of this assessment the requests are considered in the following topic groups:
1. Development controls 2. REPA 3. Air noise contours 4. Airport Protection Surface 5. Helicopter and general noise management 6. Stormwater 7. Mapping and Definitions
Development controls
848) The PNAL submission is the only one in this category, and also the only one which requests changes to objectives and policies. For that reason, in this assessment, 'controls' includes the relevant objective and its subordinate policies.
849) Before turning to specific requests, we note that our understanding from PNAL's evidence is that its primary concerns with PC15H were the limitations on commercial development, and that these have now been partly resolved by the assessment and recommendations in the Section 42A report. In the event, these aspects of the PNAL submission were only addressed in broad terms by Mr Lanham and Mr Garland. They have two remaining significant reservations which we will refer to below.
140 2015 850) Issue 2, Objective 2 and Policies 2.3 and 2.5: the request is to amend the issue and the objective and to delete the policies. We agree with and adopt Mr Duindam's assessment at paras. 4.95 - 4.100 of his evidence. In our view Objective 2 needs to be consistent with City View Objective 14:
14. The City Centre remains the primary focus for retail, office, commercial and cultural activities within the City. Other commercial centres will be planned to ensure that they support the primary role and function of the City Centre.
851) Objective 2 and Policy 2.5 are consistent with City View Objective 14. Policy 2.3 reinforces the purpose of the core airport precinct, and we do not see any problem with the reference to 'require airport access' in Policy 2.3. This is a matter capable of objective interpretation over time. For these reasons we reject the requests in relation to Section 13 Issue 2, Objective 2 and Policies 2.3 and 2.5.
852) Rule 13.4.1.1 and Rule 13.4.1.2: these are permitted activity rules and PNAL requests the following changes to performance standards:
1.1(d) various activities should not have to be located within the Airport terminal building 1.1(e) and 1.2(d) office and retail activities should not have to be 'ancillary'
853) In relation to the first request, we understand that PNAL is satisfied with Mr Duindam's recommended amendment to 1.1(d). We therefore accept that recommendation for the reasons given in Mr Duindam's assessment.
854) In relation to the second request, a different approach is recommended by Mr Duindam for retail and office respectively. PNAL do not agree with the recommended retail cap of 1,500m2 gfa, though the maximum single unit size of 300m2 is accepted. 'Ancillary' status for office activities is recommended to continue by Mr Duindam but this needs to be considered with the recommendation to classify stand-alone office activities as restricted discretionary.
855) We accept Mr Lanham's point that some kinds of commercial (office and retail) development will be attracted to an airport location and that this is both a national and world-wide trend. Nevertheless our view is that permitting such activities on any significant scale would not be consistent with the relevant City View Objective and Zone policies. A limited retail function is entirely appropriate given the Zone's function as both a City gateway and an employment centre. The same cannot necessarily be said of office development. There may well be, as Mr Lanham says, office development which should logically locate within the Zone, but we think that it would be unproductive to try to identify and define just what that might be. We think that restricted discretionary is the appropriate classification for stand-alone office activities.
856) The retail gfa 'cap' is, as PNAL noted, ultimately an arbitrary figure and it criticises it on that basis. Nevertheless it is supported by Mr Tansley and we agree that it is an appropriate 'cut off' point between permitted and the relatively permissive restricted discretionary category.
141 2016 857) Rule 13.4.2.1: the requirement for a Comprehensive Development Plan is opposed, but no supporting evidence was given on behalf of PNAL. Our view is that the requirement is consistent with City View Objectives 10 and 11 and Zone Objectives 2 and 3. It is also generally consistent with the approach taken elsewhere in the City in relation to commercial development in currently undeveloped areas. We therefore reject this request.
858) Rule 13.4.2.3(f), Rule 13.4.2.6, Rule 13.4.3.1, Rule 13.4.3.2 and Rule 13.4.3.3: all of these provisions relate to the office and retail controls defined initially in the permitted activity rules. Mr Duindam has recommended new restricted discretionary activity rules R13.4.2.6 and R13.2.4.7 which respectively cover non-ancillary office activities and retail activities.
859) The remaining PNAL reservation appears to be the 'precedent' criterion in R13.4.2.6 (the final criterion in the recommended new Rule). We agree that this should be deleted. It is a matter which, to the extent that it is relevant, is covered by the preceding criterion.
860) Overall we regard the recommendations from Mr Duindam as a significant improvement in the balance of the provisions which go some way to addressing the PNAL concerns about flexibility and responsiveness without creating a difficult tension with the Council's overall direction on business zones.
861) Rule 13.4.3.3: the submissions requests that motels and residential centres be permitted subject to standards. Mr Duindam says that the discretionary classification is primarily a matter of Plan consistency - motels are discretionary in all zones. Mr Lanham identifies visitor and student accommodation as potential developments in the Airport Zone.
862) Despite the Council's general approach, Rule 13.4.3.3 is worded akin to a restricted discretionary activity rule: all the assessment criteria are really matters of design which are critical to consent. We have no evidence to suggest that in this Zone there is any other reason why these activities would not be appropriate within this Zone if well designed in terms of these criteria. That being the case, our conclusion is that these activities should be restricted discretionary.
863) We have considered Mr Duindam's point that the use of 'avoid' in Policy 1.4 does not fit comfortably with this conclusion. We agree, but the point is equally valid in relation to the proposed (fully) discretionary classification. We think that Policy 1.4 is too stark and might be better nuanced as, for example, 'avoid or manage'. However we have no basis for changing Policy 1.4 in the absence of a request, and this must remain a matter for future consideration by Council.
Decision
864) The PNAL requests are accepted (in whole or part) or rejected as shown in Appendix 1 for the reasons given above.
Runway End Protection Areas (REPA)
865) The basis for REPA is covered in the evidence of Mr Lanham, Mr Garland and Mr Percy. REPA is essentially an area extending several hundred metres from each end of a runway which should be clear of people and buildings in case an aircraft landing at the airport fails to make the runway or overshoots it. In New
142 2017 Zealand there is no regulatory requirement for REPA. However we were told that several airports have adopted them. In PC15H REPA are proposed at both ends of the runway and, in both cases, some land affected is not owned by PNAL.
866) Proposed Rule 13.4.5.2 makes most new building inside the REPA a prohibited activity. This is a significant constraint on the owners' use of their land. While we accept the point that the REPA is partly concerned with managing the risk to people near an airport, we also think, having heard the PNAL evidence, that it has significant safety and economic aspects for the Airport itself. Indeed it is substantially a benefit to PNAL (in terms of risk management and attractiveness to operators) at the cost of the owners of the land subject to REPA constraints.
867) We note Mr Percy's point that the land subject to the REPA at Midhurst St is also subject to the constraints of the air noise contour. Although the preceding Rule 13.4.5.1 applies prohibited status to new dwellings (an issue we return to below) we do not agree that this justifies the same proposed management method to the REPA land. To a significant degree, the purpose of the REPA is to enable the operation of the Airport. In our view this brings into play the issue of whether PNAL ought to designate the land and accept the financial responsibility for the effect of the control.
868) A decision on this point has become rather less difficult for two reasons. Firstly, the REPA on the Midhurst St land is separated from the Airport runway by a railway line and a road both of which appear physically higher than the land on either side of them. In these circumstances, the justification for a REPA on this land becomes rather marginal. Secondly, the Council now accepts that prohibited activity status is inappropriate.
869) We accept the Council's view that Rule 13.4.5.2 should be amended to be a discretionary activity rule and that Rule 23.12.1(i) should be deleted. We further regard the extension of the REPA beyond the railway line as unnecessary and overly restrictive. It is accordingly removed from Midhurst St and the land to the east of it (including the submitters' land). If an REPA becomes necessary for PNAL then it has the option of requesting a designation with the attendant responsibilities.
870) We note that Transpower is now satisfied that none of its assets is within the REPAs. As its submission in opposition was conditional, a decision may not be necessary. However to the extent that the prohibited classification is a replaced by discretionary classification, the request is accepted in part. It should be noted that any Transpower structures in the REPA would likely 'impinge' on one or more surfaces under Rule 13.4.7.1.
Decision
871) The submission requests from Mr Kelly and Ms Simpson and from Mr and Mrs Learmonth are accepted by stopping the REPA at Midhurst St, and by reclassifying the activities referred to in Rule 13.4.5.2 as discretionary and deleting Rule 23.12.1(i).
143 2018 Air noise contours
872) Air noise contours are designed to identify the general profile of aviation noise associated with the Airport. In concept, they serve both as a method for controlling noise associated with the Airport, and as a method for protecting the Airport from the establishment of noise sensitive activities within areas which are subject to potentially significant aviation noise. In a more direct way, they also provide a method of limiting the development of noise sensitive activities on health and amenity grounds. The noise contours for the Airport were established almost 20 years ago.
873) PC15H did not propose any change to the existing air noise contours. These are shown on Map 10.7.6.3. There is no obligation for the Council to change any provision which is being reviewed, but there is an obligation to review a provision which has not been reviewed or changed in the last 10 years. On the evidence we heard, it did not appear that the Council had carried any review of the noise contours in substance. It is fair to conclude that the Council saw no reason to propose any change. However, we note that this position could only be maintained if there was adequate information to enable the decision to be made in a balanced way. In fact, the Airbiz report indicated the likelihood that the air noise contours were no longer accurate.
874) We should note that Mr Munro was adamant that the initial Airbiz report should not be used as a basis for changing the contours at this stage. He said that Airbiz would need to review the effect of performance based navigation ('PBN') which is to be introduced to the Airport in 2016. In essence, his expectation was that PBN should compress the spatial extent of approaches to the Airport and thus potentially reduce the noise contours. The results of PBN can be used to remodel the noise contours. He thought that a potential outcome was that the 'long and thin' contour profile might become 'shorter and wider'.
875) It is important to appreciate that while the air noise contours serve the important purpose of enabling the Airport's continued operation and future development, they also significantly affect the subdivision and development potential of any land which is inside them.
876) The BGPL submission on PC15H relating to the proposed air noise contours and associated rules has been withdrawn (EMS letter of 7 December 2015). That withdrawal came after an agreement with the Council recorded as follows:
A side agreement between BGP and the Palmerston North City Council has been signed. This agreement requires BGP to withdraw their submission on PPC15H relating to the proposed air noise contours and associated rules, and in return the Council has agreed that within six months of determination of Performance Based Navigation (PBN), remodel the noise contours as they affect BGP’s land based on NZS 6805: 1992 (or any replacement) and provide a report to BGP that states the impact of those remodelled contours. Within three months of the date of the report, PNCC must notify a review of the District Plan under Schedule 1 of the RMA, also taking into account the alignment and location of the contours and the potential zoning of BGPs land. PNCC reserves the right to enlarge or decrease the extent of the contours depending on the outcomes of the PBN review and subsequent contour modelling. Despite all of this, PNCC have agreed to review the airnoise contours within two years whether or not the impact of PBN is known, if required by BGP. (Council reply memorandum 21 December 2015 para.9).
144 2019 877) We understand the 'associated rules' mentioned above to refer to Rule 13.4.5.1 which the BGPL submission requested be deleted and replaced with a discretionary activity rule.
878) We do not need to make a decision on the BGPL submission, and plainly BGPL and the Council are content to resolve the issues through the process outlined above. We note however that this agreement and the subsequent withdrawal does not necessarily remove our ability to make decisions on relevant aspects on an interim basis. The issues were live before us at the hearing, and having heard the evidence and argument from relevant parties we formed some initial conclusions which were to be subject to the further submissions in reply received on 21 December 2105.
879) In any event, the real point of the Learmonth submission was explained as follows: We would be seeking absolute assurance that in the event of fire, earthquake etc, that we would be able to re-build like for like. If Council took this absolute right away from us the impact on our livelihood and family would be huge, basically rendering our home and business valueless
880) The provision which concerns us (and it is one identified at the hearing) is Rule 9.10.1 which makes any new dwelling within the Air Noise Contour a prohibited activity. Our concern is that the existing dwellings within the Contour (particularly those of the Midhurst St submitters) could not be replaced if they were destroyed. Alterations and additions to such dwellings are discretionary activities under Rule 9.8.5. Reliance on sections 10 and 10B may be insufficient to avoid the problem that a home and livelihood might be lost and could not be replaced. We do not think such an outcome would be in accordance with the purpose of the Act.
881) We note Mr Maassen's comment (in relation to the REPA rule) that:
I agree that the prohibited activity status is excessive for essentially a risk management exercise. The risk will depend on probability and impact, neither of which can be determined predictively to assess risk in the absence of a proposal. This cuts both ways. Residents can’t deny that some activities can have an unacceptable risk profile. PNAL and PNCC conversely can’t deny that some activities have an unacceptable risk profile. Recognising this, it is appropriate that the management policy use risk language. I am satisfied that the discretionary class enables an appropriate assessment. So could a restricted discretionary class with notification limited to service on PNAL. This goes a substantial way to addressing the submitters concerns.
882) We accept that the context is different, but the perspective is much the same. We think that prohibited activity status for a 'rebuild' is excessive and we do not think it achieves the broad purpose of the Act. On balance, we will not take the direction requested by BGPL and simply reclassify all prohibited activities in the Air Noise Zone, but instead we will amend both Rule 10.7.4.2 and Rule 9.8.5 to include the replacement of any dwelling which is demolished or removed from the site. The Council's memorandum of 18 January proposed a noise standard for a dwelling within the Air Noise Zone, and we would envisage that any discretionary consent would, if granted, require some noise insulation of that kind to be achieved. However we do not consider that it is necessary to require this as a performance standard.
145 2020 Decision
883) The request from Mr and Mrs Learmonth and (to the extent discussed above) the request from BGPL is accepted in part by amending Rules 10.7.4.2 and 9.8.5 to classify the replacement of a dwelling as a discretionary activity as shown in Appendix 1.
Airport Protection Surfaces
884) The submission by Airways Corporation requests that its navigation aids and beacons be exempted from Rule 13.4.7.1.
885) We agree that this is desirable and adopt Mr Duindam's recommended wording. A consequential change to Rule 23.12.1 is required. This latter rule seems to be an unnecessary duplication of Rule 13.4.7.1 which applies to all protection surfaces. As we have noted below, Rule 13.4.7.1 appears to be a discretionary activity rule though that may not have been the intention, and there is no relevant policy to assist with this issue. To avoid doubt we prefer to use Mr Duindam's recommended note as part of the Rule, so it will appear as a separate clause immediately following the current (ii).
Decision
886) The request in the Airways submission is accepted for the reasons given in the submission and Rules 13.4.7.1 and 23.12.1 are amended as shown in Appendix 1.
Helicopter and general noise management
887) This was an issue raised in the submissions of Messrs. Harding and Fraser. The concern occurs because of the flight path chosen by helicopter operators, particularly for training flights. The concern is exacerbated by apparent hovering over or near residential areas.
888) There was some dispute on the extent of the problem (and from PNAL's perspective whether there was a problem at all). However, for reasons we will explain below it is unnecessary for us to resolve any differences of opinion on the merits of past complaints. We are concerned primarily with ensuring that the provisions of PC15H are effective in managing potential noise problems.
889) The District Plan is not the right document to manage flight operations at the Airport. Its proper concern is that any adverse effects of such operations be managed effectively. Two rules in the Plan are intended to achieve this management. These are Rules 13.4.6.1 - which sets an overall noise limit for emissions from aircraft operations, and Rule 13.4.6.2 - which requires PNAL to have a noise management plan ('NMP'). It should be noted that overflying aircraft are only subject to the RMA' s land use controls through the first of the above rules - in other words, rules cannot be made about specific aircraft types.
890) Rule 13.4.6.1 does not assist with this issue as the residential areas affected are beyond the air noise boundary. Our focus is therefore on the NMP required by Rule 13.4.6.2.
891) We note that the NMP must include:
146 2021
(e) Identification and establishment of procedures and systems to:
(i) Facilitate communication between the residents around the Palmerston North Airport, airport users, Palmerston North Airport Company, and Palmerston North City Council. (ii) Identify key people for communications purposes and methods of contact. (iii) Provide a dispute management system to receive, record, deal with and monitor complaints.
892) The Rule also provides that the approval of NMP does not preclude the Council's ability to seek an enforcement order relating to a specific noise source.
893) In our view, the Rule framework is sufficient, in concept, for complaints to be received, investigated, answered and addressed. We do not wish to make further prescriptions on the content of an NMP, but regard it as reasonably obvious that it should have effective procedures to deal with complaints of noise nuisance. Mr Maassen noted during the hearing, and again in his reply, that the Rule requires amendment to make it clear that PNAL must comply with an approved NMP.
894) We agree and on that basis Rule 13.4.6.2 is amended as shown in Appendix 1.
Decision
895) The requests from Mr Harding and Mr Fraser are accepted in part to the extent that Rule 13.4.6.2 is amended as shown in Appendix 1 for the reasons given above.
Stormwater
896) The stormwater issue is raised by the Horizons submission. There are 3 component requests:
1. Rule 13.4.5.2(1) add an exemption for flood control works within the Taonui Basin Floodway 2. Council to ensure that additional stormwater from the Airport Zone does not compromise flood protection standards in the Setters Line, Flygers Line and Benmore Ave areas 3. Insert new standards in Section 13 to ensure that new development in the Zone achieves hydraulic neutrality.
897) The first request was recommended for acceptance by Mr Duindam, and we agree that an exemption should be added for the reasons given in the submission and in Mr Duindam's assessment of it. We also agree with Mr Duindam's recommendation (at PNAL's request) to add a rider that any works must not result in permanent ponding - as this may attract birds. We understand from Mr Blackwood that Horizons accepts this rider.
898) We cannot identify any specific request to change PC15H in relation to the second request. We regard this as being an operational matter for the Council, which will have to ensure that stormwater discharges from its system do not cause these problems. Mr McCartin's memorandum of 20 August 2015 indicates that the Council does not regard this as a significant risk. Mr
147 2022 McCartin also notes that a runway extension would require resource consent from Horizons as it would cross the Mangaone Stream. No decision on this second request is required.
899) In relation to the third request, we agree with Mr Duindam's assessment and consider the request misconceived. Stormwater from development within the Zone will generally be discharged into the Council's stormwater system which will have a consented discharge point. Mr McCartin regards the extra flows likely from full development within the Zone to be relatively insignificant. The development of a runway extension (which may be more of a concern to Horizons) will require resource consent(s) from Horizons, and we think that the stormwater issues arising from this are best resolved through design at that time and in that context.
Decision
The first request is accepted and the third request is rejected for the reasons given above.
Mapping and Definitions
900) Mr Parham has raised a concern that Fig.13.1 is not an adequate replacement for Operative Plan Fig.20.7. His request is 'to provide better maps to enable the general public to determine the approximate ground to airspace clearance for any property and any restrictions that are applicable'.
901) He thought that the original version was preferable.
902) Transpower raises a similar point in its letter of 3 November 2015 request greater clarity in Fig.13.1 to enable a Plan user to 'more easily determine whether they are likely to be affected'.
903) The point is of some potential importance because Rule 13.4.7.1 provides that no structure, building or tree may impinge into the relevant surfaces. While the rule is in similar terms to Operative Rule 20.4.11, it is deficient, or at least unusual, in not providing the class of activity for any application for consent to breach it. Under s.87B such an activity would be discretionary.
904) In his assessment of Mr Parham's submission Mr Duindam refers to a further submission from PNAL which states that it would be very difficult to calculate the physical parameters of the Rule for such a large part of the City. His recommendation is to leave Fig13.1 as it is, but in his reply he stated that he was not opposed to using the original version.
905) We do not think that Fig13.1 serves any real purpose at the scale proposed. All it does is illustrate, in 2 dimensions, the geometric shapes of the relevant surfaces which are of course 3-dimensional. Moreover the colours on the figure are poorly aligned to the key. Mr Parham is correct in saying that the Operative Plan Fig.20.7 is more helpful, however we accept Mr Duindam's point that even this could not serve as a guide at the specific property level unless ground levels AMSL were known. The other option is to remove Fig13.1 and remove reference to it in Rule 13.4.7.1, but this has not been requested by any submitter.
906) We conclude that Fig.20.7 should be retained but updated.
148 2023
Decision
907) The requests by Mr Parham and Transpower are accepted for the reasons given above.
908) Mr Wilson has made 3 requests as follows:
1. Amend the definition of 'Mass Assembly of People' to restrict that definition to the REPA. 2. Include, or refer to, the definition of 'Core Airport Precinct' in Section 13.1 first bullet point. 3. Correct the spelling of 'hangar' in the definition of 'Core Airport Precinct'.
909) We agree with all these requests for the reasons given in Mr Wilson's submission and we adopt Mr Duindam's assessment and recommendations to this effect.
Decision
910) The requests from Mr Wilson are accepted for the reasons given above.
149 2024 15. Rezoning and requests from NDF and NZFS Submissions
Approach to rezoning generally
911) In this section of the decision we consider submissions which contain specific requests for rezoning land from Rural to some other zone. In some cases these requests were aimed at recognising or extending activities which are already established. In other cases the request involves an intended transition of the land from rural to urban development. It is appropriate that we follow a consistent approach to such requests, and in the paragraphs below we outline some of the matters we have taken into account in all cases.
912) We begin by acknowledging the advice given by Mr Murphy in paras 7-18 of the section 42A report. We do not need to summarise his views (which were available to all submitters). In essence, he outlines the Council's approach to reporting on specific submissions. He notes the general absence of supporting technical information in submissions, draws attention to the other options for advancing specific development proposals, and notes at least two instances in which nearby land owners may have been unaware of the rezoning requests.
913) Mr Murphy also suggests that any submission which proposes an alternative zoning needs to be supported by an evaluation of the matters under s.32 that is at least equal to the evaluation undertaken by the Council: without such an evaluation the further consideration under s.32AA which is required to accompany any change will not be possible. The point is made somewhat more forcefully in paras.15-18 of the Cooper Rapley report.
914) We have outlined our general approach to the requirements of sections 32 and 32AA elsewhere in this decision. However while we accept the thrust of the points made, we do not see matters quite so starkly.
915) First, the section 32 evaluations undertaken for PC15 were necessarily at a high level looking at the proposals in a City wide context. It is difficult, and probably unrealistic, to expect a similar kind of analysis to be undertaken where a specific proposal is very localised - even where the effects of the proposal extend beyond the land immediately involved. That said, we still need sufficient information to undertake an evaluation under s.32AA which is proportionate to the importance of the change.
916) Second, we simply repeat the point made in our overall consideration of the s.32 obligations: the evaluation is an important reference point in decision making, but it is not determinative.
917) This discussion leads us to the most important aspect of our general approach. It is incumbent on any person requesting a change of zoning through the submission process to 'make the case' for it. By this we mean that the responsibility for assessing the request on a professional basis cannot be transferred to the Council. We expect, and are grateful for, the expert analysis provided by Council reporters on the range of issues presented by submissions on PC15, but the primary responsibility for identifying all the factors and facts which need to be considered in addressing the request must rest with the person who made it. In a number of the submissions considered below very little of the information needed for an assessment under the Act was supplied in support of the request. The missing information often included quite
150 2025 significant technical material, historical material and legally relevant policies and strategies.
918) A second important consideration is that, while a rezoning request may have been made to enable a reasonably specific kind of development, we must bear in mind that a 'new' zoning imports a whole range of management provisions - starting with objectives and policies and then typically classifying a variety of activities as permitted, controlled or restricted discretionary. Again it is very difficult to adequately assess a request which does not consider the impact of these provisions on the subject land and the surrounding environment.
919) A final important consideration on all 'greenfield' rezoning is the availability of adequate infrastructure and it economic costs (ie not just in financial terms but in opportunity or displacement terms).
920) Where the type of adequate information discussed above has not been available to us we have rejected the request. This does not preclude the request being made again at a later date or in a different way, but resource management decisions will always need to be based on reliable and sufficient information.
31 Shirriffs Road Longburn JP Ware Transport Ltd SO 4
Submission request:
921) Rezone land from Rural to Industrial or allow operations 24 hours a day, 7 days a week.
Hearing and site visit:
922) Mrs Ware spoke in support of the submission on 3 occasions (the hearings for PC15C, PC15A and the rezoning requests). The Commissioners visited the site and surrounding area.
923) Mrs Ware states that the hours of operation imposed by the current Rural zoning are a significant constraint on their business, and that moreover they are the only business in this area subject to such constraints. In particular the 7pm 'cutoff' requires returning trucks to be parked on the road (which is dangerous) when they cannot be driven back into the site after 7pm. The business wishes to be able to operate on a 24hr basis and this is required, in particular, for recovery work.
924) We also heard from 2 further submitters Mr Good (FS31) and Mr Rowe (FS32) both accepted late. They are concerned primarily at the potential for increased noise effects, though both further submissions raise a range of other issues as well. Mr and Mrs Good live at 49 Shirriffs Rd, and Mr and Mrs Rowe live on Pioneer Highway.
925) The Council report on the submission is in the s.42A report for PC15A at paragraphs 4.103-4.111. The Council recommended that the requests in the submission be rejected. Ms Cooper's view was that the extension of operating hours sought is incompatible with the amenities of the area, and that a change to Industrial zoning would require a full assessment of the range of activities which are permitted or controlled under that zone. In her reply Ms Cooper
151 2026 noted that the issues raised by Mrs Ware regarding the constraints on the business were best addressed through the resource consent process
Assessment:
926) The land is zoned Rural and the current business (JP Ware Transport Ltd) is identified under Rule 9.5.6 as an existing industry. Under this Rule the current business is a permitted activity but subject to restrictions on its hours of operation.
927) The business is long established, and although there have been changes over the years, the site remains basically a depot for trucks and trailers with ancillary servicing plant. The current business has a number of vehicles but only one driver who is also the co-owner. The nearest dwelling is owned by the owners of the business, Mr and Mrs Ware.
928) Shirriffs Rd runs approximately 2kms between SH56 and the Manawatu River. It has no other exit. It was formerly the boundary between the City and the Manawatu District. It lies about midway between Longburn and the urban edge of the City. Properties on Shirriffs Rd appear to be generally smaller rural blocks mostly used for grazing - horses, cattle and sheep. However a number of businesses are identified by signage. There is a kart racing track on the southwestern side of the road. The Awapuni Racecourse is around 1km to the west (though accessed from another road). Our impression is that this is a generally quiet rural environment with road traffic being the major noise source - and this may be more evident at night closer to SH56.
929) We agree with Ms Cooper that rezoning from Rural to Industrial is not appropriate. As we noted in the introductory comments above, a request for rezoning needs to consider the effects of establishing any activity permitted by the 'new' zoning in this environment. The Wares are understandably concerned with their own business, but the issues presented by their rezoning request are very much wider, and there is simply no evidence on which we could conclude that a change to Industrial zoning would be appropriate here.
930) Beyond this fundamental problem, we also think that the request is misconceived. An Industrial zoning would bring only a small benefit to the Wares because they would still be surrounded by Rural properties and they would be subject to the night time noise controls in Rule 12.11 which their business (on a 24hr basis) simply could not comply with.
931) However we do agree that the hours of operation in Rule 9.5.6 (b) are unduly restrictive. We think that the 7pm limit should be extended to 10pm. The Sunday restriction will remain. We also note that Rule 9.11.1 will also apply to activities between 7pm and 10pm, and the Wares should seek advice on how this will affect any truck movements into or on their site after 7pm. Beyond this we agree with Ms Cooper that any expansion of the business (in terms of operating times) would be considered under a resource consent process where effects on neighbours and possible mitigation and avoidance measures can be assessed.
932) We note Mrs Ware's evidence that most of the neighbours were supportive of their request. We are mindful of Mr Good's concerns but we do not regard the extra time allowed as significant in general amenity terms, particularly in the rural environment where vehicle movements late or early in the day are often
152 2027 expected. We emphasise a more general point that although the rural environment is a living area it is also a business area.
Decision: 933) For the reasons given above, the submission is accepted in part, to the extent that Rule 9.5.6(b) relating to this land is to amended by replacing '7pm' with '10pm'. In other respects the submission is rejected.
7, 41 and 43 Works Rd Longburn: Brian Green Properties Ltd SO28
Submission request:
934) Rezone land (7 and 41) from Rural to Industrial, retain 43 as Industrial.
Hearing and site visit:
935) The hearing of this aspect of the submission was on 8 December 2015. Mr Paul Thomas, a consultant planner, spoke in support of the request in the submission. The Commissioners have visited the sites and surrounding areas.
936) There were no relevant further submissions.
937) In Mr Thomas's opinion, the land 'forms a natural extension to the adjacent industrial land and forms a natural fit with the urban form of Longburn' (para.38). He does not think that the interface issue (with Rural zoned land) is either significant or specific to this land. He was dismissive of infrastructure concerns.
938) The section 42A report was written by Mr Ferguson-Pye. He recommended that the rezoning request be rejected. His view is summarised at para.25:
The request is an uncomfortable fit in terms of existing urban form and the relationship of the site with surrounding land use activities. While the Industrial Zone provisions will appropriately manage effects at the Residential Zone interface this is not the case in respect of neighbouring Rural Zone properties. Putting aside infrastructure and access issues, if the subject site were to be zoned to Industrial it would be preferable to include 1 and 5 Works Road East to address urban form and function issues. There is merit in rezoning the site, however until issues relating to; water supply, quality and capacity of infrastructure (and security of supply of those services), access and integration with surrounding land are resolved I cannot at this point support the request to rezone the subject site.
Assessment
939) The submission affects 3 separate but adjoining sites. The land was formerly within the Manawatu District and thus covered by PC15C. Under the operative Plan provisions (the Manawatu District Plan) 43 Works Rd is zoned Industrial and 7 and 41 Works Rd are zoned Rural 1. The proposed PC15 remains the same: Industrial for 43 and Rural for 7 and 41.
940) The Rural zoned land at 7 and 41 Works Rd currently acts as a significant buffer between the industrial enclave in Works Rd and the residential part of Longburn.
153 2028 941) In our view 7 and 41 Works Rd with a combined area of some 5ha is a greenfield site of some significance, and we reiterate our introductory comments on rezoning requests in this context. We think that the issues identified by Mr Ferguson-Pye are valid and unavoidable. That is not to say that they are insurmountable, but they must be properly addressed and, with respect, the submission and the evidence in support of it fall some way short of doing so.
942) The essence of good resource management planning in this context is to identify relevant issues, opportunities and options, within the relevant statutory and planning framework, in a robust and proportionate way. From the Council's perspective (paras 20-21 s.42A report), there is no shortage of Industrial zoned land available for new activities or development, and while this is not determinative of future zoning options, it does indicate that it will fall to the land owner to prepare a proposal which meets the standard needed for an adequate assessment of options for change.
Decision
943) For the reasons given above, the rezoning aspect of the submission is rejected. The Industrial zoning of 43 Works Rd will remain as proposed.
609 Rangitikei Line, Palmerston North: Alpha Corporation SO79
Submission request:
944) Rezone land from Rural to Residential or (in the alternative) provide for residential subdivision as a discretionary activity.
Hearing and site visit:
945) The hearing of this submission was on 8 December 2015. The submitter did not attend the hearing. The Commissioners have visited the site and general area, and have read the submission.
946) The section 42A report was written by Mr Ferguson-Pye. He recommended that the rezoning request be rejected. His view is summarised at para.38:
At a fundamental level urban growth areas are where our community and their families will live, work, play and grow over the next 100 years. Creating new residential areas should be approached with caution, especially when full information regarding the risks and opportunities of a site are not fully understood. In this case, there is simply not enough robust technical information informing the site’s suitability for residential development. There is a lack of information in the areas of soils; liquefaction; biodiversity; and reverse sensitivity. Integrated, connected and efficient infrastructure provision is vital to supporting and ensuring the long-term viability of greenfield growth areas. A full infrastructure assessment of the site is required (water, wastewater, stormwater and access) to ensure the form and function of the area is a sustainable addition to the City’s urban area over the long-term and the works necessary to sustain the development that are not privately funded are programmed in the Council budgets. Until these technical assessments are undertaken and further information is known I cannot at this point support the request to rezone the subject site.
154 2029 Assessment:
947) The submission relates to a large (19ha) undeveloped site on the periphery of the urban area. It was formerly within the Manawatu District and is zoned partly Flood Channel 1 and partly Rural 1 under the Manawatu District Plan. The proposed zoning under PC15C is Rural. Over half the site is subject to the Flood Prone Area overlay (the exact area is in dispute). The submission states that the soils in the land are a mix of class 2 and 3.
948) Even allowing for the removal of a significant area within the Flood Prone Overlay, this is a large greenfield site. (By way of comparison, it is over 3 times larger than the Whakarongo land rezoned to Residential under Plan Change 6). We cannot contemplate rezoning on this scale in the absence of a full assessment of all issues, opportunities and options undertaken within the relevant statutory and planning framework.
949) The only significant analysis of the request is that undertaken by Mr Ferguson- Pye in his report. We accept that analysis, and indeed in evidentiary terms it is undisputed.
950) On the alternative request for discretionary classification of residential subdivision we would have the same reservations. Such a classification would be an unwarranted signal that the residential development of the land might be regarded, at this stage, as an appropriate future development. We simply do not have evidence to make such a decision. We would also add (referring to our decision on PC15A subdivision provisions) that such a decision would be inconsistent with recognising the productive value of the class 2 and 3 soils resource.
Decision:
951) For the reasons given above, this submission is rejected.
45-79 Flygers Line, Palmerston North: Gavin Terry SO80
Submission request:
952) Rezone land from Rural to Residential, or alternatively make Rural subdivision below 20ha a discretionary activity.
Hearing and site visit:
953) The hearing of this submission was on 8 December 2015. The submitter did not attend the hearing. The Commissioners have visited the site and general area, and have read the submission.
954) The section 42A report was written by Mr Ferguson-Pye. He recommended that the rezoning request be rejected. His analysis of the submission was substantially the same as for 609 Rangitikei Line above and (at para.50) he adopted the same conclusion.
Assessment:
955) The submission relates to an undeveloped 6.5ha site with frontage to Flygers Line, and separated from the urban area by the Mangaone Stream. The
155 2030 northern part of the site is within the air noise contour. The soils within the site are said (in the submission) to be class 2 and/or 3.
956) Viewed as a future residential area, this is again a large site, and it lacks any current or obvious connection to the existing urban area. We agree that the matters discussed in Mr Ferguson-Pye's report would require much more detailed information and assessment before any rezoning to Residential could be properly considered. Even with that information the identification of future growth areas must to some degree be influenced by the availability, affordability and efficiency of necessary infrastructure connections.
957) We also refer to our comments on rezoning generally, and note that, other than the written submission, the submitter did not provide any information to address the matters which must be considered in any request to rezone on this scale.
958) On the alternative request for discretionary classification of subdivision below 20ha we repeat the essence of the comment made on the previous (Alpha) submission below:
959) Such a classification would be an unwarranted signal that the residential development of the land might be regarded, at this stage, as an appropriate future development. We simply do not have evidence to make such a decision. We would also add (referring to our decision on PC15A subdivision provisions) that such a decision would be inconsistent with recognising the productive value of the class 2 and 3 soils resource.
Decision:
960) For the reasons given above, this submission is rejected.
195 Aokautere Drive and 153 Pacific Drive: Philip Pirie SO39
Submission request:
961) Rezone Rural parts of land to Residential.
Hearing and site visit:
962) The hearing of this submission was on 8 December 2015. The submitter did not attend the hearing. Mr Brett Guthrie (one of the co-submitters in Submission 14) spoke in opposition to the request. The Commissioners have visited the site and general area (including Moonshine Valley) and have read Mr Pirie's submission.
963) Mr Murphy, the author of the s.42A report, spoke to his report and recommendations.
Assessment:
964) The land which is the subject of this request is a large 'land locked' block in the Aokautere area. Neither the submission nor the s.42A report identified the area of the land. The land is zoned mostly Rural but within the Aokautere Rural-Residential Area where PC15A proposes a minimum lot size of 5,000m2 (increased from the 3,500m2 minimum) in Rule 7.16.2.1(b)(i).
156 2031 965) The submission contains no information supporting the request and, as noted above, the submitter did not attend the hearing. The submission records that there has been previous correspondence between the owner and the Council regarding this land, but we have not seen that material either. In the absence of any other information we are left with the undisputed analysis in Mr. Murphy's report.
966) It is possible that part of the land may be suitable in the future for residential (as opposed to rural-residential development) development, but this requires the assessment and resolution of a range of issues. These issues may include some of the concerns raised by Mr Guthrie. In other words we have no information on which a rezoning of this land could be contemplated. As we noted in our introductory section, it is for any owner requesting a rezoning to provide adequate assessment and information to support that request.
967) The request must therefore be rejected, while noting that such a decision does not preclude an adequately based proposal from being considered at some future time. For the sake of completeness we note that, although we were prepared to hear from Mr Guthrie, it is doubtful that the submission he presented could reasonably be regarded as a basis for opposition to this submission - hence we have not recorded his concerns in any detail.
Decision:
968) For the reasons given above the request in this submission is rejected.
'Pioneer City West' land at No.1 Line, Longburn Rongotea Rd and Pioneer Highway: Heritage Estates Ltd SO 47, Pioneer City West Ltd SO 55 and Philip Pirie SO 39
Submissions request (Heritage Estates and Pirie):
969) Rezone land from Rural to Residential.
Submissions request (Heritage Estates and Pioneer City West):
970) Removal of land from PC15
Hearing and site visit:
971) The rezoning request in these submissions was heard on 8 December 2015.
972) The Commissioners have visited the site and the surrounding area.
973) Mr Thomas gave planning evidence for Heritage Estates and Pioneer City West. Mr Pirie did not attend the hearing.
974) In his evidence Mr Thomas did not support the rezoning (Rural to Residential) request made by Heritage Estates and Mr Pirie. He concentrated instead on the request made in both the Heritage Estates and Pioneer City West submissions that the land subject to Plan Change B (a private plan change notified in 2013 which we refer to from here as 'PCB') be excluded from PC15A. He proposed, in the alternative that we adjourn the relevant aspects of PC15A until PCB has been heard and determined.
157 2032 975) We note that the Pioneer City West submission also included an alternative request that 'PC15 be amended to incorporate PCB as publicly notified'. This aspect was not discussed by Mr Thomas and for the reasons explained below we doubt that we had any ability to consider it.
976) Mr Murphy was the author of the relevant s.42A report. Mr Murphy provided some background to PCB and to the recent correspondence between Council and Pioneer City West and Heritage Estates. He reiterated the Council's position on City West which is essentially, as we understand it, that concerns over geotechnical issues (specifically the potential for ground liquefaction and the availability of mitigation) and infrastructure are potential barriers to rezoning. However he recommends that City West be identified as a potential residential growth area on Map 9/1 and in relevant subdivision and rural policies. Mr Thomas agrees with policy recognition of City West but does not agree with Mr Murphy's inclusion of the concerns referred to above or his description of it as a 'potential' growth area.
Assessment:
977) We do not propose to canvass or consider the substance of the PCB request or the reasons for its current abeyance. It is a complex and detailed proposal to change the Plan by adding a specific urban development 'zone' for the land and, plainly, it will have to be resolved in one way or another.
978) In the meantime however we have to recognise that PCB was initiated in 2009, notified in 2013 and a number of submissions were then made. The Council proposed a hearing in mid 2014 with independent commissioners, but the PCB proponent objected to those commissioners. PCB has apparently not progressed since then. The review of the District Plan continues, and indeed is heading into its final stages. PC15 was notified in 2015, and it included the land which is subject to the PCB request.
979) In the current circumstances we are not prepared to 'adjourn' a decision on these submissions pending the resolution of PCB. This would be artificial and impractical for reasons we now discuss.
980) PC15A proposes the continuation of Rural zoning for this land. Our ability to modify that proposal is limited to making a decision on any alternative requested in a submission. Such an alternative (rezoning to Residential) was requested in two submissions but neither submitter supported that request with any evidence. On the other hand, the Council has provided evidence as to why rezoning is inappropriate at this stage. The Council's views are not new and are well known to the submitters, and we can only conclude that the submitters have elected not persuade us otherwise. The rezoning request must therefore be rejected.
981) It follows that there is no basis for adjournment or for any other mechanism to exclude the PCB land from PC15A. Leaving the issue to some future decision maker at some unspecified future time would not be an adjournment in the conventional sense (eg to await further relevant information) but, rather, a failure to comply with the requirements of Schedule 1.
982) We see no prejudice to PCB in making this decision. We emphasise that we have no basis for any view on whether City West is a suitable urban/residential growth area. We have heard no evidence on the issue. The most we can say
158 2033 is that the Council (and perhaps other submitters) have raised issues which will have to be addressed.
983) If PCB does proceed, the decision maker will either accept the request, with or without modification, or reject it. If the former happens then the Plan will be changed accordingly, and if the latter happens then the zoning will remain Rural. In our view, that is how the process should work for the City West land.
984) In the meantime, there appears to be agreement that Section 9 Policy 1.1 should be amended to specifically recognise the City West land. Despite Mr Thomas' objection to the use of 'potentially', we regard it as appropriate. The intent of the policy is to 'protect' land which is 'potentially suitable' not the far narrower range of land which is fully known to be so. We therefore adopt Mr Murphy's recommended wording.
Decision:
985) For the reasons given above, the requests in these submissions to rezone the land from Rural to Residential, and/or to exclude the land from PC15A and/or to adjourn the hearing pending the determination of PCB are all rejected.
986) The request to amend Section 9 Policy 1.1 is accepted, but, as shown in Appendix 1, we have used Mr Murphy's proposed wording rather than that requested.
1 Roberts Line: Matthew Ellingham and Matvin Property Ltd SO75
Submission request:
987) Rezone the land from Rural to Local Business, or classify local business activities as discretionary.
Hearing and site visit:
988) This submission was heard on 8 December 2015. The submitter did not attend the hearing. The Commissioners visited the site and surrounding area.
989) Mr Murphy was the author of the s.42A report. His report recommends the rejection of the submission, but does also make alternative recommendations in the event that we decide that some provision for commercial activities on the land is appropriate.
Assessment:
990) This land is situated on the corner of Napier Rd (SH3) and Roberts Line and has an area of just under 5ha. The shape of the land is irregular. To the south it has a long boundary with Napier Rd/ SH 3. To the north its boundary is with (but generally below) the residential area of Royal Oak Drive and Rosebank Avenue. To the east it has frontage on to Roberts Line.
991) Part of the land is currently subject to flooding. The land has been used as a plant nursery.
992) This part of Napier Road has been increasingly in transition from rural to more urban development over several years. Essentially, the urban area of the City
159 2034 has extended, and continues to extend, towards the east along the northern side of Napier Road. Recently the Council approved Plan Change 6 which rezoned the Whakarongo block between James Line and Stoney Creek Road to Residential. Our view is that further urban development west of Roberts Line is almost inevitably a question of 'when' rather 'if', and there is much to be said for the Plan recognising and managing that likelihood rather than reacting to it after the fact. Mr Murphy's concluding comments at para 68 seem to accept this. In reaching this view we do not in any way diminish the importance of the factors discussed in Mr Murphy's report and summarised in para.66.
993) The best that can be said in favour of retaining Rural zoning is that the status quo is the only realistic option until there is better information on a range of potential development constraints and available avoidance or mitigation measures. As we have noted before, we do not expect the Council to respond to a submission request for rezoning by undertaking the level of work and assessment that would be necessary to support a plan change. However the absence of such an assessment does leave us with insufficient information on which to assess the requested rezoning.
994) The point can be best made by referring the Local Business Objectives in Section 11. We would need to consider, in addition to the site specific factors mentioned above, whether rezoning this land would achieve the Zone Objectives, particularly 1, 2, 4 and 5. Issues of function, accessibility and amenity all arise at a high level.
995) In a similar way, we are not satisfied that we can fully assess the request to make all Local Business activities discretionary on this site. The list of such activities is deliberately expansive. Some may be suitable for such a classification, and some may not. We have two other concerns with this alternative request.
996) First, it may send an incorrect signal that we regard Local Business zoning as a likely future outcome of the planning process - but we would go no further than to say that we regard such a zoning as a future possibility, quite possibly modified by site specific considerations. Second, at a more fundamental level, we would regard such provisions as an inversion (or possibly an abdication) of the planning process. The point we need to emphasise is that the submitter has not offered any sufficient basis for what is a significant proposal involving a large and challenging site.
997) We encourage further work by the parties along the lines suggested by Mr Murphy in para.68 of his report.
Decision
998) For the reasons given above, both request in the submission are rejected.
NZ Defence Force submission 40
Submission request:
999) The submission contains a number of requests associated with Plan provisions for temporary military training activities ('TMTA'). The requests concern provisions in Sections 4 Definitions, 9 Rural, 13 Airport, and 22 Natural Hazards affected by PC15. There is also a request for amendments to relevant
160 2035 provisions for all other zones. The essence of the requests is that TMTA (as defined in the request) be permitted or controlled subject to appropriate standards.
Hearing:
1000) The submission was heard on 9 December 2015.
1001) NZDF's submission was presented by Sara McMillan (consultant planner), Rob Owen (NZDF Environmental Manager) and Malcolm Hunt (acoustic consultant).
1002) Mr Owen's evidence included a list of TMTA which had been carried out within the City in the last few years. Mr Hunt assessed and recommended a number of noise management standards for TMTAs. Ms McMillan and Mr Owen both emphasised that NZDF is seeking to achieve a nationally consistent approach to TMTAs and, to that end, make similar submissions when Plan provisions are reviewed.
1003) Mr Owen said that NZDF has no plans to carry TMTAs involving live firing of weapons or explosions in the City. Indeed (at para.9) he said that NZDF was trying to 'ensure that activities that have been carried out routinely in the city for decades are, and remain, lawful'. He acknowledged that the Linton Camp has a firing range. Ms McMillan and Mr Owen both acknowledged that the provisions requested in the NZDF submission would make it highly unlikely that TMTAs involving live firing or explosions could occur in any but the most remote parts of the City.
1004) Mr Duindam and Mr Lloyd (acoustic consultant) were the authors of the relevant parts of the section 42A report. Mr Duindam recommended acceptance of the request that TMTA be provided for in the Flood Protection Zone and in Flood Prone Areas of the Rural Zone. Other requests in the submission were recommended for rejection, and Mr Duindam's reasons for these recommendations are recorded at 4.3 - 4.14 of his evidence. Mr Lloyd supported the differentiation created by the removal of live firing, explosions etc from the TMTA permitted activity rule. His view was that it would be very difficult to accommodate the noise associated with the excluded activities because of the distribution of noise sensitive activities (generally residential) in the City. In his opinion, the noise effects of live firing and explosions have the potential to cause serious adverse effects on the environment (para.14) and should not be classified as permitted.
1005) We note that Palmerston North Airport Ltd and Airways Corporation of New Zealand made further submissions opposing the request to extend permitted or controlled activity status for TMTA with live firing in other zones, particularly the Airport Zone. Horizons made a further submission supporting the request in relation to the Flood Protection Zone and the Flood Prone Areas. None of the further submitters appeared at the hearing of this submission.
Assessment
1006) On balance we prefer the evidence of Mr Lloyd and Mr Duindam on the issues associated with the high noise elements of TMTAs. While we understand Mr Hunt's proposed adoption of the construction noise standard for the management this kind of noise, we think that its use in this context is simply
161 2036 inappropriate because the characteristics of both the receiving environment and the noise itself are fundamentally different.
1007) We think that there is an equally fundamental problem at the heart of the request. NZDF's representatives were quite clear that no such activities had been undertaken or were contemplated, even if the request was accepted. The list of past TMTA in the City attached to Mr Owen's evidence does not contain any live firing or noisy activities. With the possible exception of Mr Hunt, they appeared prepared to accept that there is virtually nowhere in the City where the proposed permitted activity standards could be complied with. Both Mr Owen and Ms McMillan saw the request made by NZDF as justifiable on the basis of establishing a nationally consistent approach to TMTA.
1008) We do not agree. There is provision in the RMA for national policy statements and for national environmental standards where the Minister thinks these are necessary. There is also a process under which the Crown may designate specified land for its works (which would include military activities). We cannot see how Plan provisions in Palmerston North can be justified purely on the basis that they exist and/or may be necessary in other districts. Such a justification appears to rather miss the point of planning at a district level.
1009) Ms McMillan reminded us of the need to give effect to the RPS which requires the Council to 'recognise' NZDF 'facilities' (RPS Policy 3-1). We understand the relevant facility to be the Linton Military Camp which is designated in the Plan. That facility has therefore been recognised as required by the RPS. We do not regard the RPS as requiring the Council to classify particular TMTA in a specific way.
1010) Bearing in mind the existence of a significant and longstanding military facility in the City, and bearing in mind the benign nature of the TMTA which have been undertaken in the City in recent years, we cannot identify any reason for the inclusion of the requested provisions. In our view the case for classifying TMTAs with live firing and explosions as either permitted or controlled fails by a wide margin.
1011) These comments relate to the Rural Zone and the Flood Protection Zone, but they can be made with more force in relation to the other zoning provisions within the scope of PC15 (Airport, Braeburn and North East Industrial). In relation to these zones we agree with Mr Duindam' s assessment at 4.23-4 and 4.31 - 4.33. In relation to other zone provisions in the Plan the request is clearly beyond the scope of decision making on PC15.
1012) For completeness we should record that live firing and explosive activities are provided for in the notified Plan as Discretionary Activities in the Rural and Airport Zones with recommendations to make similar provision in the Flood Protection Zone and the Flood Prone Areas. This accords with Mr Lloyd’s opinion at paragraph 14 of his evidence that such activities should be dealt with on a case by case basis.
Decision
1013) For the reasons given above, the request to make TMTA permitted in the Flood Protection Zone is accepted. All other requests are rejected.
162 2037 NZ Fire Service submission 27: provision of water supply for fire fighting
Submission request
1014) The submission requests the incorporation of water supply Standard SNZ PAS 4509:2008 into a number of rules affected by PC15. These include rules for permitted, controlled and restricted discretionary activities in the Rural and North East Industrial (and Extension) Zones, and the Braeburn Industrial Area as well those in the Subdivision provisions in Section 7. The requests in relation to Section 7 Subdivision include an amendment to Policy 3.1(2) to incorporate the Standard referred to above. The request in relation to the Braeburn Industrial Area requested an amendment to Policy 5.3 in Section 12 Industrial.
1015) The submission also supports a number of provisions and, except where some other submissions requests changes to those provisions, no decision is required on these aspects of the submission.
Hearing
1016) The submission was heard on 9 December 2015.
1017) NZFS’s submission was presented by Ms Perri Duffy (consultant planner), Murray Kidd, Mitchell Brown and James Firestone (all NZFS).
1018) NZFS explained the Standard and the benefits, in fire-fighting terms and particularly for large industrial buildings, of the water pressure that would be available if it were implemented as requested.
1019) At the hearing of PC15E, Ms Coates, speaking for Proarch Consultants Ltd (submission 66) supported the NZFS submission. Whilst we were prepared to hear Ms Coates at the time, we repeat the comment made to her at the conclusion of her presentation which was that the Proarch submission made no specific requests, let alone one which could reasonably have been seen as supportive of the NZFS position. We emphasise therefore that we do not regard the Proarch submission as having made any request on this issue which requires a decision by us.
1020) The section 42A reports were prepared by Mr Ferguson-Pye and Mr Green (1 August 2015 on PC15E, and 10 November on this submission) and Mr Murphy also spoke to the requests. The Council's view is that the requests should be declined. In essence, there are three reasons for this: unplanned infrastructure costs for the Council, building owners being able to make their own decisions on fire protection, and incorporating a significant external standard without following the Schedule 1 process. We note that the Council did recommend reference to and use of the Standard in relation to PC15A in the relevant section 42 reports.
Assessment
1021) We respect the fact that the Fire Service is fulfilling its obligation to promote fire safety, and appreciate its detailed explanations of the advantages of enhancing fire fighting capacity with an FW4 supply. We accept the social and economic benefits, not to mention the personal safety and welfare advantages in
163 2038 maximising capacity to control fire as quickly as possible. These are, as Ms Duffy said, core aspects of the sustainable management of resources.
1022) Nevertheless we have concluded that the request is misconceived for a number of reasons.
1023) First, the New Zealand Building Code ('the Code') is the primary legislative method for underpinning building safety, including fire risk. This legislation (as NZFS accepted) does not import the Standard (also referred to as the NZFS Fire Fighting Water Supplies Code of Practice). We must assume that this is a deliberate legislative choice. That being so, the NZFS request is that the Plan should legislate where the primary building safety legislation has chosen not to. Clearly a Plan can impose more stringent building controls than those in the Code where there are good resource management reasons for doing so.
1024) However using the broad language of the RMA to include building safety per se as an aspect of the management of physical resources, is not, in our view, a 'good resource management reason' to 'second guess' a decision made in the primary legislation. Quite apart from the potential of straying into an area which is comprehensively covered by other legislation, there is a significant risk that making the provision requested by NZFS would be uninformed: we must assume that there are reasons why the Code has not adopted the Standard, but we do not know that these reasons are.
1025) Second, we are required to consider the clear requirements of Schedule 1 Part 3 in relation the incorporation of external material in a Plan. We are satisfied that the Standard is within the range of material which may be included under Clause 30. However where the Council proposes to include such material it must do so in accordance with Clauses 34 and 35 which specify consultative requirements and accessibility in relation to such material. This process has not been followed because the incorporation of the Standard was not proposed by PC15. Strictly speaking Clauses 34 and 35 do not seem to apply where the request to incorporate material is made in a submission.
1026) Whether or not Clauses 34 and 35 apply directly to a proposal made as a request in a submission (and we think they do not) the purpose of these provisions is clear, and we would regard it as artificial not to consider it. The effect of accepting the request would be that the Plan would impose significant requirements by incorporation which might have financial or economic consequences for land owners and building developers (in particular) that they had little or no forewarning of. We accept that the NZFS submission was more than adequately summarised in the summary of decisions requested, but there is nothing about the content or the meaning the Standard requested for incorporation.
1027) Third, we accept the evidence of Mr Green that the costs of upgrading the City's reticulated water supply to FW4 standard, though not quantified, would be 'costly'. This could effectively put the development of relevant areas on hold until the Council had committed the necessary funding in its Long Term Plan. Mr Green's point underlines a central problem with the request: its cost is unknown and realistically unknowable at this stage. Ms Duffy perhaps unwittingly reinforced the problem with her comment (para.5.5) that the 'costs of implementing the [Standard] are far outweighed by the benefits of minimising or avoiding loss of life and/or property. Given the absence of any quantified
164 2039 costs in either category we took this as moral assessment rather than an economic one.
1028) Finally, while we accept the evidence that an enhanced water supply creates a better fire fighting resource (and thus a lower risk for life and property), we do not have any evidence that the current provisions are, in any sense, unsafe. Again the size of the margin between the standard sought by NZFS and the existing provisions is unknown, and we would expect it to vary according to the specific 'environment' - including the fire risk - in question. This appears to return us to the first point above, which is that these matters are ultimately most efficiently addressed at the planning level for specific buildings and developments, rather than at the broad scale planning level we are considering.
1029) Our comments above apply to all aspects of the submission, and we do not think it necessary, in view of our conclusions, to separately consider the requests on Rural Subdivisions and development, NEIZ and Extension and Braeburn.
Decision
1030) For the reasons given above we reject the aspects of the submission requesting recognition of the Standard in the various provisions of PC15.
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16 Further evaluation under section 32AA
1031) A further evaluation is required by section 32AA in respect of any changes to PPC15A-H. That further evaluation 'must be undertaken in accordance with s.32(1)-(4)', and must be 'at a level of detail that corresponds with the scale and significance of the changes'. (Section 32AA(1)(a)-(c)). Section 32AA(2) states than an evaluation report is not required where the matters which must be assessed are referred to in sufficient detail in the 'decision-making record' to demonstrate that an evaluation has been undertaken. We confirm that in this decision the further evaluation is undertaken in accordance with section 32AA(1)(d)(ii).
1032) This part of the decision refers to further evaluation which has been undertaken in each of the ten topics covered above. It is intended to tie those specific decisions to the matters which must covered in Section 32(1)-(4). The matters covered below are points of emphasis from the various decisions made under the preceding topics.
1033) By way of general preface to this further evaluation the following should be noted:
a) Section 32(4) does not apply as there has been no proposal to introduce a 'greater prohibition or restriction on an activity to which a national environmental standard applies.' b) Where the context requires it, we have regarded the objectives referred to in section 32(3)(b) as inclusive of the relevant objectives in Section 2 City View as well as any relevant 'superior' RPS or NPS objectives which must be given effect to. c) For the purposes of section 32(2) we did not regard it as either necessary, helpful or realistically possible to quantify the benefits or costs, or to assess effects on economic growth or employment, and nor did any submission suggest otherwise. d) Many of the changes made by this decision are intended to correct errors or to make provisions more workable or more likely to achieve the intended result - and in these cases, in the context of section 32, we do not regard the changes as being significant to the evaluation. e) Issues, explanatory text and notes for users are not included within the definition of 'provisions' in section 32(6) and changes to these are not included in any evaluation. f) In relation to PC15A Subdivision, we were concerned that the original section 32 evaluation in relation to minimum lot size had not been fully reported (though the evaluative work appeared to have been undertaken) and on this basis we asked the Council to submit a specific evaluation on this issue. This matter has been covered in the decision on the PC15A Subdivision topic. g) With the limited exception referred to above, we were satisfied with the level and helpfulness of the section 32 report for PC15A-H.
Plan Change 15A
1034) Section 9 Rural Objective 3 and Policy 3.4 have been amended by this decision. In our view the addition of 'maintain' into Objective 3 is consistent with the language of section 7(f) and better achieves the purpose of the Act. The deletion of Policy 3.4 removes a potential conflict with the Regional Plan,
166 2041 and also removes the potential for the Policy to be regarded as outside the Council's functions under section 31.
1035) The only significant rule change is to classify relocated dwellings as permitted rather than controlled. As explained in the decision we regard this as an equally effective method of implementing the relevant objectives with lesser cost and delay and thus greater benefit.
Plan Change 15A Subdivision
1036) The most significant change is to Section 7 Objective 3 and Policy 3.2 with the specific recognition of the productive value of Class 3 soils. The evidence we heard was clear that these soils constitute a valuable component of the productive resource, and one which may also be lost from productive capacity if fragmentation of larger land blocks was to continue. The productive capacity of land is not only a matter we must have particular regard to under both section 7(b) and (g) but also a fundamental part of the definition of sustainable management of natural and physical resources - in section 5(2)(b). For the purposes of section 32(1) we regard the amendment to Objective 3 as enhancing the achievement of the purpose of the Act and Policy 3.2 as implementing Objective 3.
1037) The other significant change is classifying certain subdivision (to a minimum lot size of 5,000m2) as discretionary in certain circumstances. In our view this amendment to the relevant rules potentially increases the benefit to be gained from rural subdivision in those areas and circumstances where it can be undertaken without compromising the objectives and policies to retain productive capacity and work within infrastructure capacity.
1038) In our view the other changes made to PC15A Subdivision provisions do not affect the evaluations undertaken in the section 32 report.
Plan Change 15B Windfarms and Landscapes
1039) The small number of changes made to PC15B are intended either to clarify provisions (the rewording of Policy 3.5 and the clarification of the separation distance Rule 9.8.6) or to achieve a better implementation of relevant policies (amendment to boundary of TRLPA and provision for micro turbines). In terms of section 32(2) all these changes will tend to result in greater environmental and economic benefits and lesser costs.
Plan Change 15C Boundary Change Area
1040) The only changes to PC15C are minor and/or corrections which do not require any further evaluation. PC15C as approved by this decision has been well evaluated by the section 32 report and we adopt that evaluation as appropriate for the final version.
Plan Change 15D Flood Hazards
1041) The purpose of PC15D is to manage activities in the Flood Protection Zone and in flood prone areas, and to achieve this purpose and implement relevant objectives the effectiveness and certainty of underlying definitions is important. The significant changes to PC15D deal with improvements to those key definitions. In terms of section 32(1)(b) we regard the changes as bringing
167 2042 greater efficiency and effectiveness to the provisions of PC15D, and we do not regard the changes as changing the matters to be considered under section 32(2) except to the extent that a more efficient set of provisions is inherently likely to result in greater economic benefits.
1042) Other less significant changes have been made which do not alter the original evaluations made in the section 32 report.
Plan Change 15E North East Industrial Zone and Extension Area
1043) The decision has made a small number of changes to rule provisions. In all cases the changes are intended to achieve a more effective operation of the rule (in the context of implementing relevant objectives). The addition of potential noise and visual effects as assessment criteria will allow a more explicit balance of costs and benefits of development at the consent stage.
Plan Change 15F Braeburn Industrial Area (Longburn)
1044) The changes made to PC15F are minor and are at a level of significance which do not require further evaluation. We are satisfied that the evaluation in the section 32 report remains appropriate for PC15F as amended by this decision.
Plan Change 15G Utilities
1045) The decision has made a significant number of changes to provisions, particularly policies and rules. All these changes are intended to achieve a better implementation of the relevant objectives.
1046) PC15G is fundamentally concerned with enabling the operation, maintenance and development of various infrastructure of national, regional and/or local importance while avoiding or mitigating potential adverse effects on the environment. The changes which have been made generally better enable infrastructure without compromising the protection of the environment from adverse effects.
1047) In terms of section 32(1)(b) and (2) we are satisfied that the changes are more efficient and enhance benefits without increasing costs.
Plan Change 15H Airport Zone
1048) The changes made to PC15H relate to proposed rules and maps. Objectives and Policies are unchanged. In our view the changes will make the provisions more equitable, more certain and more workable. In terms of section 32(1)(b) the changes make the provisions more efficient and effective. Section 32(2) is engaged only to a limited degree by the amendments concerning the REPA areas and the supporting rules, and in our view the changes on balance create a better social and economic outcome where the cost of the REPA is removed from individual land owners who derive no benefit from it.
Rezoning requests and submissions by NZFS and NZDF
1049) The changes which have been made are relatively minor and very specific, and in our view are at a level of significance where the original section 32 report remains appropriate and no further evaluation is necessary.
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17. Conclusion
1050) Plan Change 15A-H has been approved without any major amendments to the overall direction proposed in the individual topics as expressed through the relevant objectives and policies. To a significant degree, this overall direction follows national, regional and city-wide objectives and policies which were already in place, as well as maintaining a high level of continuity with historic and current approaches to management. The approach in many of the topics received a high level of support through the draft Plan and submissions stages, and many of the decisions which were required in this decision concern matters of detail rather approach.
1051) The area of greatest contention and change from current Plan provisions is the move to tighter control on subdivision of rural land (PC15A). In endorsing the proposed change we are conscious that, for many landowners, the ability to divide and realise a substantial land asset is important for a range of reasons, often financial. We accept that, again for many owners, the potential capital gain on subdivision might well exceed the financial value of even the highest productive capacity of the land.
1052) This factor serves to emphasise the planning conundrum: left with current Plan controls, subdivision of land would continue at a rate that is unsustainable both in terms of loss of the some of the City's most productive land resource and the demand on public infrastructure.
1053) Other significant measures include sufficient provision for the expansion of the North East Industrial Zone on a structured basis over the next few decades (PC15E), and for the growth of the existing Fonterra manufacturing plant at Longburn (PC15F). Plan Change 15B represents the first attempt to consider and manage the further development of windfarms in the Rural Zone and to assess the outstanding landscape features of the City. Plan Changes 15G and 15H will enable the continued operation and development of assets of national, regional and local importance - energy, water and telecommunications networks infrastructure and the Airport. Plan Changes 15A and C complete the review of the Rural Zone and the Boundary Change Area, and Plan Change 15D reviews and updates the planning provisions relating to flood risk areas.
1054) The proposed plan changes represent the outcome of years of work from the Council, the community and interest groups, and we acknowledge the evident quality of the technical work and the commitment to discussion and resolution of issues outside the hearings process. Finally we record our thanks to all those people, particularly submitters, who attended and contributed information to the hearings.
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Appendix 1: PC15A-H as amended by this decision
The amendments included in PPC15A-H as notified are shown as coloured underlined for additions and coloured strikethrough for removals. Further amendments made as part of the PPC15A-H decision are shown as shaded underline for additions and shaded strikethrough for removals.
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