IN THE MATTER of the Resource Management Act
1991
AND
IN THE MATTER of Proposed Plan Change 19 (Frankton Flats Special Zone B) to the Queenstown Lakes District Plan.
STATEMENT OF EVIDENCE OF GREGORY JOHN OSBORNE
INTRODUCTION
1. My full name is Gregory John Osborne. I am a Director of Osborne Hay (South) Limited, a
Planning and Resource Management Consultancy practice based in Auckland.
2. I have the qualification of Bachelor of Town Planning obtained from Auckland University in
1979 and I have been a full member of the New Zealand Planning Institute since 1984.
3. I have worked as a planner in local government and private practice since 1979 and during
that period I have had extensive experience in district and regional plan preparation and the
preparation and processing of resource consent applications and notices of requirement for
designations.
4. In recent years I have also developed significant experience in resource management and
planning processes related to the District Plan controls on aircraft noise and related land use
controls on activities sensitive to aircraft noise in the vicinity of airports.
5. In particular, I facilitated the mediated settlement of a range of appeals on behalf of Manukau
City Council in relation to the provisions of the Manukau District Plan relating to Auckland
International Airport. That work involved drafting district plan rules which ultimately formed
the basis of the Environment Court consent order.
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6. Subsequently, I have provided planning advice to Auckland International Airport Limited over
a number of years and I gave evidence to the Environment Court in the case Independent
News Auckland Limited and Auckland International Airport Limited v Manukau City Council1
in which the key issue was reverse sensitivity to aircraft noise. I continue to provide regular
training sessions on behalf of Auckland International Airport Limited for Manukau City
Council staff on the issue of aircraft noise and reverse sensitivity effects that arise in relation
to activities which are sensitive to that noise.
7. I also provided planning advice to Papakura District Council and its Hearing Commissioners
in relation to Plan Change 6 following its notification in 2001 and prepared but never
presented evidence on behalf of the Council in relation to subsequent appeals to the
Environment Court. I was, however, involved on behalf of the Council in the negotiations
which led to the draft Consent Order between a number of parties including the Council,
Ardmore Airport Limited and the Ardmore Residents Action Group. I recently provided
evidence to both Papakura District Council and Auckland Regional Council hearings panels
considering a series of changes to the District Plan and the Regional Policy Statement on the
issue of reverse sensitivity to aircraft noise relating to new urban development in the
Takanini area.
8. I provided planning advice to Rotorua District Council in relation to Plan Change 32 (Rotorua
Airport Noise and Land Use Controls) between late 2003 and late 2007 and was directly
involved in the preparation of the Plan Change dealing with issues of controlling aircraft
noise and controlling land use activities which might give rise to reverse sensitivity effects at
Rotorua Airport. I also provided evidence to the Environment Court on that matter although
ultimately that case too was resolved by consent order.
9. I have also provided planning advice and a Section 42A report to the Timaru District Council
in relation to submissions on a Plan Change (Plan Change 6) dealing with very similar issues
at Timaru Airport (Richard Pearse Airport).
1 Decision no: A103/03
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10. I am currently providing planning advice to Queenstown Lakes District Council in respect of
the draft plan change that Queenstown Airport Corporation Limited is preparing and in
relation to a proposed Plan Change at Wanaka Airport that I am preparing for the Council.
11. I am familiar with Queenstown Airport and its surrounds as well as the location of the land to
which Plan Change 19 applies.
12. I have read and agree to comply with the Environment Court’s Code of Conduct for Expert
Witnesses outlined in the Environment Court's Consolidated Practice Note 2006. While this
practise note relates to the preparation of evidence for the Environment Court, I can confirm
that I have complied with it in preparing this evidence. I confirm that my evidence is within my
area of expertise except where I state I am relying on what I have been told by another
person. I also confirm that I have not omitted to consider material facts known to me that
might alter or detract from my expressed opinions.
SCOPE OF EVIDENCE
13. I appear at the request of the Commissioners to respond to the legal submissions which
were made and the evidence which was given at the hearing of submissions on Plan Change
19 (PC 19) in relation to the issue of aircraft noise resulting from the use and development of
Queenstown Airport and the potential reverse sensitivity effects that might arise from the
development of the land which is subject to PC19.
14. Specifically, the submissions and evidence which I will respond to is:
a) Legal submissions made by James Gardner-Hopkins and evidence given by Eric
Morgan on behalf of Air New Zealand Limited;
b) Legal submissions made by Amanda Dewar and evidence given by Alison Noble on
behalf of Queenstown Airport Corporation Limited (QAC);
c) Evidence given by Michael Foster on behalf of Shotover Park Limited and Remarkables
Park Limited;
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d) Evidence given by Warwick Goldsmith on behalf of Five Mile Holdings Limited (In
Receivership); and
e) Legal submissions made by Vanessa Walker on behalf of Jacks Point Limited and
Plethora Investments Limited.
15. My evidence is structured as follows:
a) A review of the key relevant points made in legal submissions and evidence given and
my response to each of those points;
b) My conclusions in terms of recommended amendments to PC 19.
LEGAL SUBMISSIONS AND EVIDENCE ON BEHALF OF AIR NEW ZEALAND LIMITED (ANZL).
16. James Gardner-Hopkins made legal submissions on behalf of ANZL. The key points he
made in those submissions were:
a) PC 19 should contain controls on Activities Sensitive to Aircraft Noise (ASAN) outside
the Outer Control Boundary (OCB);
b) That reverse sensitivity effects outside the OCB should be addressed by amending the
Objectives, Policies, Environmental Results Anticipated and Rules of PC19;
c) In particular, the rules of PC19 should be amended to require that the Outline
Development Plan required throughout the PC19 area should include a further matter
for discretion relating to reverse sensitivity to aircraft noise even outside the OCB;
d) The rules should also be amended to require that all ASAN outside the OCB must be
subject to a “no-complaints covenant” or otherwise be a non-complying activity;
e) ANZL opposition to the inclusion of references to controls on the effects of noise from
the Airport in Objective 14 and new policy 14.2; and
f) A new definition for “Activity Sensitive to Aircraft Noise” should be included in PC19.
17. I will deal with each of these matters in turn. Firstly, I do not support the imposition of
controls on Activities Sensitive to Aircraft Noise (ASAN) outside the Outer Control Boundary
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(OCB). It is not an approach that has been used at any other airport in New Zealand to my
knowledge and it is not an approach which is supported by the New Zealand Standard for
Airport Noise Management and Land Use Planning NZS 6805:1992 (the Standard).
18. Mr Gardner– Hopkins acknowledges in his submissions that “ANZL would not usually seek to
extend controls on ASANs outside airport noise contours. However, it will do so where there
is good reason to believe that the noise contours might change or where the circumstances
make it appropriate to seek such controls.” Mr Gardner-Hopkins does not expand on why he
considers the noise contours “might change” although it is assumed this is a reference to the
fact that the new aircraft noise contours proposed by QAC in its public consultation
documents have not yet been notified as part of a plan change process and might be altered
as part of that process. This is an issue I will address later when I come to evaluate Mr
Foster’s evidence, but suffice it to say that if the future aircraft contours really are in such
doubt, then it would be far better, in my opinion, to delay the implementation of PC19 until
those contours are settled than to establish a fundamentally unsound precedent in terms of
land use control around Queenstown Airport by introducing rules relating to controlling ASAN
outside the OCB.
19. I am also unconvinced by the other reasons advanced by Mr Gardner-Hopkins for taking
such an unusual approach to controlling land use in the case of Queenstown Airport. He
states that the PC19 land is “...within proximity to the Airport and will be affected by Airport
noise” and that “...the OCB contour is no “magic” cut off point. Even people who live outside
of the OCB can (and do) complain about the Airport noise”. These observations would apply
to all airports around New Zealand where the Standard has been the basis of land use
controls in District Plans to control reverse sensitivity effects. They are not unique to
Queenstown Airport at all. Of course, people do notice aircraft noise outside the OCB (Ldn
55dBA) contour and doubtless they also complain about it on occasion. However, Mr
Gardner-Hopkins either ignores or is unaware of the acoustic research into community
responses to aircraft noise that lies behind the Standard’s recommendations in relation to
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positioning the OCB. Without delving too deeply into matters properly addressed by an
acoustical engineer, I am aware that the Standard was based on the so-called “Bradley
Curve” which is reproduced in Annexure 1 to my evidence. Analysis of that curve shows
that, on the basis of international research into community response to aircraft noise, only
12% of the population exposed to aircraft noise at the OCB (Ldn 55 dBA) will be sufficiently
annoyed to complain and the proportion of the population annoyed outside of that contour
drops off markedly so that at the Ldn 50dBA contour, for example, only 4% of the population
exposed to aircraft noise will be sufficiently annoyed to complain. Therefore, whilst any
control based on a plan contour can be depicted as arbitrary, it is derived from a well
accepted scientific approach which has been adopted in a specifically developed and well
regarded New Zealand Standard which has been used at airports around New Zealand for
over a decade. There is, in my view, no basis for adopting different approach at Queenstown
Airport.
20. Further, Mr Gardner – Hopkins submissions (and indeed the evidence of Mr Morgan from
ANZL) seems to proceed on the basis that if anybody complains about aircraft noise a
reverse sensitivity effect is immediately established. In my view, a potential reverse
sensitivity effect is only established if it is likely that people exposed to aircraft noise will be
sufficiently annoyed in sufficient numbers to not only take action in respect of district plan
controls but also, in taking such action, be successful in introducing restrictions on airport
operations in the district plan. In my view, and in the view of most airport operators around
New Zealand, this effect is highly unlikely outside the OCB. It needs to be remembered that
the purpose of district plan controls on land use around airports is not to stop people
complaining but to ensure that airports are protected from reverse sensitivity effects.
21. Other circumstances which Mr Gardner – Hopkins claims make such an unusual control
appropriate to the Queenstown situation are:
a) The relevant land is “greenfields” and currently subject to a rural general zoning and
there is a current opportunity to introduce controls on reverse sensitivity effects; and
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b) The prospect of night time flights will increase the likelihood of complaints from those
outside the OCB who are unaccustomed to such flights.
In fact, there are many examples where “greenfields” land in the general vicinity but outside
the OCB at various airports around New Zealand has been urbanised for residential or other
activities sensitive to aircraft noise. In some cases, recognition of the balance that needs to
be struck between land suitable for accommodating urban growth (including residential
growth) and the need to protect significant infrastructure from reverse sensitivity effects has
led to “Greenfield” land within the OCB being rezoned for residential purposes. For example
at New Zealand’s most important airport in Auckland, land within the Ldn 55dBA (OCB)
contour at Flat Bush, East Tamaki has been rezoned relatively recently and is being
developed for medium density residential purposes. At Ardmore Aerodrome, which is the
country’s busiest General Aviation aerodrome, land at Takanini within the OCB is currently in
the process of being rezoned for residential purposes. Both cases have involved the relevant
airport authorities and local government planning authorities jointly recognising the need to
strike the balance referred to above. That relatively liberal regime is not what is proposed in
PC19, of course. Under the rules proposed in PC19, development of any ASAN, including
residential activity, is to be prohibited within the OCB, which is a far more stringent approach.
However, the Auckland cases rather put the matter of the ANZL proposals for the District
Plan to regulate outside the OCB into perspective.
22. With regard to the final point made by Mr Gardner-Hopkins, I note that night time flights to
10pm or midnight will undoubtedly cause some level of complaint if and when they
commence. However, that complaint is unlikely to be confined to the PC19 area and is more
likely to be widespread in the wider Wakatipu Basin. The application of special controls on
land use to the PC19 area is just as arbitrary as limiting such controls to the OCB with the
further disadvantage that it is not based on any acoustic research, recognised Standard or
practical experience. The Standard and nearly all District Plans (with the potential exception
of Christchurch which is attempting to set the OCB at Ldn 50dBA) recognise that the reverse
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sensitivity effect is de minimus below Ldn 55dBA. In other words, to accept the Air New
Zealand proposal for the PC19 area on the basis of no particular outer limit to reverse
sensitivity effects (other than the boundary of PC19 itself) would be to potentially accept the
need for such controls over all new development in those parts of the wider Frankton and
Queenstown area which could conceivably be the source of complaints.
23. Further, the use of the possibility of night time flights to justify such controls is untenable
when the draft plan change being prepared by QAC and on which public consultation has
been undertaken will incorporate not only Ldn contours that account for the night time flights
proposed but also a specific “Night- time Noise Boundary” based on the SEL 95 contour
which is the noise metric specifically designed to account for sleep disturbance from single
event noise at night. Therefore measures will be in place, assuming the QAC initiated plan
change proceeds, to adequately protect Queenstown Airport from any reverse sensitivity
effects that might arise in relation to aircraft noise from night time flights.
24. From the foregoing it will be clear that I do not agree with the Mr Gardner-Hopkins’ proposals
to alter the objectives, policies, anticipated environmental results and rules of PC19 to reflect
the ANZL proposal to regulate ASAN outside the OCB. Further, I particularly reject the
imposition of “no-complaints” covenants by district plan rule which he proposes. I am not
aware of such covenants being incorporated in district plan rules in relation to the issue of
reverse sensitivity to aircraft noise outside the OCB at any other airport although I am aware
of the use of such covenants as part of a package of measures applying to dwellings within
the Ldn 65dBA contour (i.e. within the Air Noise Boundary) at Christchurch International
Airport. While there may be a place for such legal instruments between consenting parties, I
have some fundamental concerns about rules in public planning documents effectively
compelling members of the public to enter into legal agreements which have the express
purpose of restraining people and communities from participating in RMA processes. If and
when there are enforceable controls on the amount of aircraft noise generated in relation to
the use of Queenstown Airport incorporated in the District Plan, such covenants (if the draft
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covenant presented in submissions by Ms Dewar for QAC is to be used) would prevent
residents from pursuing legitimate enforcement action relating to breaches of the district plan
controls. It would also prevent them participating in District Plan change and review
processes and designation processes. “No complaint” covenants have been used in respect
of activities in the Britomart Precinct in relation to activities at the Port of Auckland but the
Central Area Section of the Auckland City District Plan expressly limits the restraints to the
effects that could be lawfully generated by the port activities at the time the agreement to
covenant is entered into and does not require the covenantor to forgo any right to lodge
submissions in respect of resource consent applications or plan changes in relation to port
activities.
25. I note that there has been adverse judicial comment on this matter 2 and note that the case
Mr Gardner-Hopkins quotes3 was in relation to a consenting party agreement that one party
subsequently sought to invalidate. It is quite inaccurate, in my view, for Mr Gardner- Hopkins
to claim that such covenants are “well accepted by the Courts” (para 18 of his submission).
In Winstone Aggregates v Matamata Piako District Council (W055/2004) the Environment
Court stated that “...we see difficulty in having a no-complaints covenant as a formal part of
the assessment of an application for a discretionary or restricted discretionary consent.
Unless the provision was very carefully worded, the almost inevitable result would be, de
facto, to impose a requirement to agree to such a covenant, and that would be unlawful”. The
Court went on to observe in an appendix to its decision that “..there may not be a problem
with such a provision where it is being truly volunteered and there is no suggestion of taking
rights from a party”. The Council’s solicitors (Macalister Todd Philips) have reviewed the
relevant caselaw and stated that if rules do not require or seek to compel people to enter into
covenants and do not take away rights then they are lawful. They offer the view that the rules
2 Ports of Auckland v Auckland City Council [1999] 1 NZLR 601, Christchurch International Airport v Christchurch City Council [1997] NZRMA 145, Ngatarewa Development Trust Limited and others v Hastings District Council W17/2008. 3 South Pacific Tyres NZ Limited v Powerland (NZ) Limited CIV 2008-485-42
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proposed by Mr Gardner-Hopkins meet those tests. With respect, I do not agree. With
reference to the Winstone decision I believe the rules, in offering a choice between
“permitted activity with a covenant” and “non-complying without”, “de facto” (in the
Environment Court’s words) compel people to enter the covenant. Further the covenant
proffered by QAC would remove people and communities’ rights to engage in all RMA
processes where QAC is a party, thereby failing the Court’s second test.
26. In my experience, and further to these legal considerations, such covenants tend to
engender lingering resentment in those that have reluctantly, unknowingly or even
apparently willingly entered into them and are apparently easily circumvented through the
use of third party individuals or organisations in any event. I have experienced hearing
situations where local authority Councillors have expressed strong opposition to the use of
such covenants and I very much doubt that any local authority would condone the taking of
legal action to prevent residents making submissions in relation to a district plan change or
notice of requirement. I would also make the simple observation that restraining complaint is
not always an effective way to prevent reverse sensitivity effects occurring. Recognised
complaints procedures and pro-active engagement of complainants on aircraft noise
community committees and the like can often avert more serious concerns developing at
district plan review time as a result of suppressed complaints. In summary, I consider that
incorporating a requirement to enter into a “no complaints” covenant in a district plan rule to
not only be poor public policy, but also to be ultimately a futile exercise.
27. If the purpose of such covenants is simply to notify intending purchasers of the existence of
certain environmental conditions and district plan rules, then I consider that they are an
expensive and cumbersome mechanism. I consider that a more transparent and cost -
effective method for achieving such notice is that referred to in the Manukau District Plan
where all land parcels within the Ldn 55dBA contour are subject to notations on Land
Information Memoranda (LIM) that cross reference the relevant district plan provisions
setting out the factual situation regarding exposure to aircraft noise and the intending
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purchaser’s rights and obligations in respect of that noise. I would support the inclusion of
such notations on LIM within the OCB.
28. Turning to Mr Gardner-Hopkins request that the requirements for Outline Development Plans
in PC19 include criteria relating to reverse sensitivity effects on the Queenstown Airport it is
noted that ASAN are prohibited activities within the OCB so the matter does not arise as
requiring the exercise of the Council’s discretion. Further, it will be apparent from the
foregoing evidence that I consider that there is no justification for the exercise of such
discretion outside the OCB and accordingly I recommend the submissions of Mr Gardner-
Hopkins on behalf of ANZL be rejected on this matter.
29. I note ANZL opposition to the inclusion of references in Objective 14 and Policy 14.2 to the
need to control aircraft noise in relation to the use of Queenstown Airport. The references are
opposed on jurisdictional grounds and on the grounds that they should be located in district
plan provisions relating to the airport rather than land adjacent to the airport. While I consider
that there is jurisdiction available within the original submission from Five Mile Holdings
Limited for proposing the amendments, I note that Mr Goldsmith for Five Mile (acting on
behalf of the Receiver) has now also opposed the amendments. While I think the proposed
amendments introduced some necessary balance into the subject objectives and policies, I
accept the point that references to controls on aircraft noise in relation to Queenstown Airport
are best pursued in the context of the impending Plan Change to be initiated by QAC and do
not oppose their deletion from the text.
30. Finally, I note that Mr Gardner-Hopkins has proposed, by way of a footnote in his legal
submissions, the following definition for Activity Sensitive to Aircraft Noise:
“Means Residential Activities, Visitor Accommodation, and Community Activities (with the
exclusion of Police Stations, Fire Station, Courthouses, Probation and Detention Centres and
Government and Local Government Offices) as defined in this District Plan.” The proposed
definition does correct the anomaly inherent in the current definition of “Community Activities”
(i.e. the inclusion of activities which are not sensitive to aircraft noise such as Police
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Stations) and to that degree I support it. I do note that inserting a new definition for ASAN in
the district plan in respect of the matters which are currently evident as part of the PC19
process could set up the possibility of it needing to be amended during the impending QAC
plan change process but otherwise I am not opposed to its inclusion. I note that both Ms
Noble for QAC and Mr Foster for SPL and RPL have proposed further amendments to the
definition and I will comment on those proposals further later in this evidence.
31. Eric Morgan gave evidence on behalf of ANZL. He gave some detailed evidence about
ANZL’s current operations at Queenstown Airport and its desire to expand those operations.
He then went onto detail ANZL’s experience with reverse sensitivity effects at various
airports and repeated a number of the key points raised in Mr Gardner-Hopkins submissions
which I have dealt with already. The additional points he raised were:
a) “It only takes a small group of motivated people to apply pressure whether that be
political or through the Environment Court for constraints to be applied to airport
operations” (para 4.2(e) of evidence); and
b) “Increasing the number of people exposed to aircraft noise will increase the likelihood of
noise sensitive people being exposed to a level of noise that will cause complaint - even
where they are outside an Ldn 55dBA noise contour.”
32. With regard to both points I have already expressed my view, that a potential reverse
sensitivity effect is only established if it is likely that people exposed to aircraft noise will be
sufficiently annoyed in sufficient numbers to not only take action in respect of district plan
controls but also, in taking such action, be successful in introducing restrictions on airport
operations in the district plan. For the reasons I have already outlined, it is my view that this
is unlikely to occur outside the OCB as described by the Ldn 55dBA contour and that is the
judgement that has been made at all airports (with the potential exception of Christchurch)
around New Zealand in applying the Standard in the context of district plan rules. I disagree
with Mr Morgan’s apparent claim that a small group of “motivated” complainants will
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inevitably be successful in having the Environment Court authorise restrictions in a district
plan on an existing airport irrespective of the merits of their case. The Environment Court in
my experience does not operate in that way and any such action by complainants would, I
have no doubt, be vigorously opposed by a number of parties and defeated, especially
where it could be shown that those complainants had “come to the nuisance”. I reiterate that
the purpose of district plan controls on land use around airports is not to stop people
complaining but to ensure that airports are protected from reverse sensitivity effects.
LEGAL SUBMISSIONS AND EVIDENCE ON BEHALF OF QUEENSTOWN AIRPORT
CORPORATION LIMITED (QAC).
33. Amanda Dewar made legal submissions on behalf of QAC. She adopted the legal
submissions and evidence of ANZL and stated that QAC wanted a “no complaint” covenant
to be “imposed for the entire development as part of a requirement for every owner occupier
to adhere to the provisions of a community constitution”. She stated that the community
constitution had additional provisions designed to protect the airport from complaint. She did
not produce a copy of that constitution but did produce a draft of the “no complaint”
covenant which, amongst other things, prevents those who sign the covenant opposing
changes to the district plan sought by QAC or Notices of Requirement lodged by QAC. I
understand that, in adopting the ANZL legal submissions, Ms Dewar supported the proposal
that such covenants should be incorporated in the rules of the district plan rather than simply
being imposed by an agreement between consenting parties. For all the reasons I have
already stated in relation to the ANZL submission, I oppose this proposal.
34. Alison Noble gave evidence on behalf of QAC. She outlined her agreement with the
amendments to PC19 proposed in the officers’ report on submissions but went on to repeat
the proposals and the rationale for rules applying to activities outside the OCB including rules
requiring “no complaint” covenants which were advanced by ANZL in legal submissions. I
have already dealt with those proposals and that rationale. However, Ms Noble did also refer
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to QAC having found the approach she advocated to be “an effective approach in the past”
and mentioned that “no-complaint” covenants had been used in the district plan provisions
for the Port of Lytellton.
35. Ms Noble does not give details of how QAC has used “no complaint” covenants in the past,
but as there are currently no district plan rules requiring their use in relation to Queenstown
Airport, I assume she must be referring to QAC entering agreements with third parties on the
basis of a “consenting parties” approach. However, including a requirement to enter a “no
complaints” covenant in a district plan rule is an altogether different matter. In this regard, I
have investigated Ms Noble’s reference to the Port of Lytellton example. She did not quote
any rule or policy but I assume she is referring to Policy 2D in Chapter 33 (Noise) of the
Banks Peninsula Proposed District Plan which states that:
“When considering any resource consent for a restricted discretionary activity to establish a port noise sensitive activity in the Port Influences Overlay Area considerable weight must be placed on whether: i) Acoustic insulation is to be provided to the appropriate standard, ii Written approval has been obtained from the Lyttelton Port Company Limited, iii) A no-complaints covenant has been entered into, and iv) Any other relevant methods to minimise the potential for reverse sensitivity effects have been incorporated, including minimising the exposure of outdoor living to port noise.” (Emphasis added)
36. While I would still have concerns with even a reference of this nature especially in the area
outside the OCB, this provision is quite different to that being proposed by ANZL and QAC.
This policy identifies that when considering an application within the “Port Influences Overlay
Area”, the consenting authority will take into account whether a no-complaints covenant has
been proposed as a mitigation measure. It appears to leave open the possibility of other
mitigation measures being viewed as equally satisfactory. It does not require a “no
complaints” covenant, with the penalty for not entering into such a covenant being non-
complying activity status, which is the provision being proposed by ANZL and QAC.
37. Ms Noble also suggests an amendment to the definition of ASAN proposed in Mr Gardner-
Hopkins’ legal submissions. She proposes that the definition be amended to read:
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“Means Residential Activities, Visitor Accommodation, and Community Activities
(including all outdoor spaces associated with education with the exclusion of Police
Stations, Fire Station, Courthouses, Probation and Detention Centres and Government
and Local Government Offices) as defined in this District Plan.”(Proposed amendments
underlined).
38. I do not consider the amendment is necessary as the definition of “Community Activities” is
as follows:
“Means the use of land and buildings for the primary purpose of health, welfare, care,
safety, education, culture and/or spiritual well being. Excludes recreational activities. A
community activity includes schools, hospitals, doctors surgeries and other health
professionals, churches, halls, libraries, community centres, police stations, fire stations,
courthouses, probation and detention centres, government and local government
offices.” (Emphasis added).
39. This means that outdoor spaces associated with education (and with other “Community
Activities”) are already covered by the definition of ASAN and making the amendment
proposed by Ms Noble to specify outdoor spaces associated with education might have the
unintended opposite effect of implying that those outdoor spaces associated with other
community activities such as hospitals and churches are not part of the definition of ASAN. I
therefore do not recommend this further amendment.
EVIDENCE ON BEHALF OF SHOTOVER PARK LIMITED (SPL) AND REMARKABLES PARK
LIMITED (RPL)
40. Mike Foster gave evidence on behalf of SPL and RPL. The key points he made in that
evidence were:
a) There is no way of actually establishing that QAC’s proposed 2037 Ldn noise contours
are appropriate because the underlying basis upon which they have been calculated
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has not been disclosed in the QAC discussion document and therefore any final
decision on PC19 should be deferred until QAC ‘s impending request for a private plan
change incorporating the 2037 contours has completed its statutory process; and
b) The definition of ASAN proposed by ANZL and QAC is ‘woefully inadequate” and
should be replaced by the definition for those activities contained in Plan Change 32 to
the Rotorua Operative District Plan;
41. I consider that the issue raised by Mr Foster regarding the uncertainty surrounding the
ultimate position of the OCB relative to the land subject to PC19 has some merit. It would
normally be considered sound resource management practice to ensure that a fundamental
structuring element such as the position of the OCB is beyond further challenge before
proceeding with a plan change introducing a new structure plan. Mr Foster is correct that
there can sometimes be significant amendments to modelled contours following peer review
and a rigorous submission process that challenges the basis of the modelling. Mr Goldsmith
for Five Mile Holdings Limited (Five Mile) replied to Mr Foster’s evidence by stating that any
variation in the OCB resulting from the submissions to the as yet-to be notified QAC plan
change would likely cause a lateral contraction of the QAC proposed contours as they
allowed for contentious night flights to midnight and that was the area where change was
likely following submissions to the yet-to-be notified QAC plan change. However, lateral
movement of contours can occur for other reasons and it is conceivable that following
detailed re-examination of helicopter flight tracks or the future use of the cross wind runway
for example, that some lateral expansion of contours could occur.
42. Mr Goldsmith for Five Mile mooted an amendment to rule 12.19.3.6 so that it was the OCB
shown on the planning maps rather than the OCB on the structure plan that was referred to
in terms of prohibiting ASAN within the OCB. He felt this would account for any future
variation in the positioning of the OCB. While that is true, it would also allow ASAN to
establish in the area which is currently outside the OCB shown on the Operative District
Plan maps and inside the OCB that seems likely to be introduced by the impending QAC
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initiated plan change process until such time as the Plan Change is adopted by the Council
and the subject planning maps amended. At this stage it is difficult to predict how long the
period between PC19 being made operative and the Council adopting any plan change
initiated by QAC might be, particularly considering that private plan changes which are only
accepted by the Council have no status until they are either adopted or made operative by
the Council.
43. It is my view that, at the least, both the original aircraft movement modelling inputs and
assumptions that have lead to the contours proposed by QAC in their draft plan change
material and a comprehensive peer review of those inputs and those assumptions needs to
be made publicly available for review by the commissioners and all parties prior to any
decisions being made in respect of the correct position of the OCB in relation to the PC19
area. Until that occurs, it would not, in my view, be prudent to proceed with making PC19
operative. I understand QAC has commissioned a peer review and the output of that process
is likely to be available in late October 2008.
44. Turning to the issue of the definition of ASAN proposed by Mr Foster, I do not agree that it
would be a superior alternative to that I reviewed earlier in this evidence. I personally drafted
the Rotorua definition Mr Foster has quoted so as it reflected the specific use descriptions
and definitions contained in the Rotorua District Plan. For example, “Community Facilities,
Community Housing , Comprehensive Residential Developments, Wharenui, Kohanga Reo ”
etc which are referred to in the Rotorua District Plan definition of ASAN are either defined
differently or are not terms used at all in the Queenstown Lakes District Plan. A definition
from one district plan cannot be simply used in another without causing a number of
unintended consequences. A careful review of all the defined terms used to describe
activities in the Queenstown Lakes District Plan indicates that the definition for ASAN
proposed by ANZL adequately encompasses all Activities Sensitive to Aircraft Noise in the
Queenstown Lakes District Council context.
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45. Before leaving this section of my evidence I note that I have been given some amended plan
change provisions which have been apparently drafted by Jeff Brown on behalf of SPL and
RPL. I have examined those suggested amended provisions from the perspective of the
issue of reverse sensitivity to aircraft noise and note that amendments seem to be limited to
the following:
a) Objective 14 and Policies 14.1 and 14.2 are relocated to Objective 5 and Policies 5.1
and 5.2 and slightly reworded so that the words “...does not constrain the ongoing
functioning of the Airport...” in Objective 5 replaces the word “protects the ongoing
functioning of the Airport...” in Objective 14 ;
b) Although it is not clear the revised activity table is annotated with notes (notes 3 and 5
in particular) that seem to imply that residential activities outside the OCB are subject to
acoustic treatment and “no complaint” covenants and notes that seem to require
“community activities”, “childcare facilities” and “educational facilities” be acoustically
treated outside the OCB. a) With regard to amendment a), I do not see any advantage in the replacement words. With
regard to amendment b), I regard the requirement to acoustically treat buildings outside the
OCB as being unnecessary with regard to aircraft noise. Further, and as will be clear from
my foregoing evidence, I oppose the use of “no-complaint” covenants in district plan rules
especially outside of the OCB and note that Mr Brown’s amended provisions seem to run
counter to Mr Foster’s evidence for SPL and RPL that such covenants “are not worth the
paper they are written on”. I also note Mr Brown has not used the definition of “Activity
Sensitive to Aircraft Noise” advocated by Mr Foster. In summary, I do not support any of the
proposed SPL and RPL text amendments relative to the issue of reverse sensitivity to aircraft
noise.
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EVIDENCE GIVEN ON BEHALF OF FIVE MILE HOLDINGS LIMITED (FIVE MILE) AND LEGAL
SUBMISSIONS MADE ON BEHALF OF JACKS POINT LIMITED AND PLETHORA
INVESTMENTS LIMITED.
46. Warwick Goldsmith gave evidence on behalf of Five Mile. He expressed the view that Five
Mile was “comfortable” with the position adopted by ANZL and QAC subject to a number of
amendments in relation to the proposed “no complaint” covenant. The tabled evidence does
not actually specify what amendments Mr Goldsmith sought but as I have already expressed
my strong view that such covenants should not be part of any district plan rule, I will not
explore that matter further in this evidence.
47. Vanessa Walker made legal submissions on behalf of Jacks Point Limited and Plethora
Investments Limited. Ms Walker outlined her understanding of QAC’s position which
essentially was that “all noise sensitive activity within the land affected by the OCB should be
prohibited”. She indicated her clients supported this position but she did not mention or was
not aware of the ANZL and QAC proposals regarding the inclusion of rules in PC19 requiring
the use of “no complaint” covenants outside the OCB. I would only observe that PC19, as
amended by the recommendations in the officers’ Section 42A report, would result in ASAN
being listed as prohibited activities within the OCB wherever that is ultimately positioned.
CONCLUSION AND RECOMMENDATION
48. My overall conclusions and recommendations, following consideration of the legal
submissions and evidence relating to aircraft noise issues, and bearing in mind the matters I
have traversed in my evidence, are that the amended text of PC19 produced as an appendix
to the officers’ Section 42A report should be further amended as follows:
a) The references to controlling the effects of aircraft noise from Queenstown Airport
should be removed from Objective 14 and that Policy 14.2 should be deleted as a
consequence; and
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b) A new definition for “Activities Sensitive to Aircraft Noise” should be inserted in the
District Plan and that the new term should be used in Rule 12.19.3.6 (activity table).
These amendments are included in the amended text to be tabled by the Council officers.
49. I would also recommend that both the original modelling inputs and assumptions that have
led to the contours proposed by QAC and a comprehensive peer review of those inputs and
those assumptions needs to be made publicly available for review by the commissioners and
all parties prior to any decisions being made in respect of the correct position of the OCB in
relation to the PC19 area. Until that occurs, it would not, in my view, be prudent to proceed
with making PC19 operative.
GREG OSBORNE
September 2008
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ANNEXURE 1
The Bradley Curve
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