A U C K L A N D C O U N C I L

REGIONWIDE PLAN CHANGES – VOLCANIC VIEWSHAFT PROTECTION

DECISIONS FOLLOWING HEARINGS ON SIX PROPOSED PLAN CHANGES HELD BEFORE INDEPENDENT COMMISSIONERS ON 11, 12, 13 AND 14 FEBRUARY 2014 IN VARIOUS LOCATIONS ACROSS AUCKLAND

PLAN CHANGE 1 – HAURAKI GULF ISLANDS SECTION OF THE AUCKLAND COUNCIL DISTRICT PLAN

COMMISSIONERS: Miss Leigh McGregor Chair Ms Melean Absolum Mr Basil Morrison

COUNCIL OFFICERS: Ms Fiona Sprott Principal Planner, Auckland Isthmus Ms Panjama Principal Planner, Central Area Ampanthong Mr Christopher Turbott Principal Planner, North Shore Ms Gemma Hayes Reporting Planner, Manukau Ms Hannah Thompson Reporting Planner, Hauraki Gulf Islands Mr Nicholas Lau Reporting Planner, Waitakere Mr Brad Coombs Landscape Architect Mr Andrew McPhee Planner Ms Paulette Gagamoe Democracy Advisor - Hearings

APPEARANCES

The following people appeared at the hearings and presented submissions and evidence to the Commissioners on one or more of the proposed Plan Changes:

Party: Represented by: Department of Corrections Peter Hall, planning consultant Uptown Business Association Mr Gary Holmes, chairman Auckland Transport Evan Keating, senior transport planner Westfield New Zealand Limited Ms Francelle Lupis, legal counsel Mr Simon Pilkinton, junior counsel Ms Rachel de Lambert, landscape architect (with Mr John Jeffcock) Mr Athol Vivier, Westfield NZ Ltd Mr Craig McGarr, planning consultant Tram Lease Ltd, Viaduct Harbour Management Mr Trevor Daya-Winterbottom, legal Ltd and Viaduct Harbour Holdings Ltd counsel Mr Paul Gunn, General Manager, Tram Lease Ltd Mr Rob Pryor, landscape architect Mr Michael Foster, planning consultant Mr Michael Harris Auckland District Health Board Mr Craig McGarr, planning consultant Mr Alan Johns, Mr McQueen (ADHB) 2

Housing New Zealand Mr Brendon Liggett, planner Mr Shannon Bray, landscape architect Mr Stuart Bracey, planner Union Nelson Ltd and others Mr Mark Tollemache, resource management consultant Chris Hepworth and Llesa Hepworth Kath and Paul Barclay Ross and Shirley Warren Bucklands & Eastern Beaches Ratepayers & Mr Philip Salmon Residents Assoc Inc Mountain View School Board of Trustees Mr Andrew Wilkinson, planning consultant Ms Sue McLachlan, principal Mountain View School Ms Mere Selwyn, Mountain View School Board Trustee Te Whare Akoranga o te Pane o Mataoho Mr Hemi Dale, Chairman Educational Trust Te Akitai Waiohua Waka Taua Trust Ms Karen Wilson John and Olivia Holmes Holmes Family Trust Mr Nick Roberts, planning consultant Auckland Volcanic Cones Society Mr Greg Smith with Mr John Street Baradene College – Ms Brianna Parkinson, legal counsel Mr Reuben O’Neill, trustee RSCJ Mr Hamish Boyd, architect Mr Nicholas Scarles, landscape architect Mr Matthew Feary, planning consultant

Evidence was tabled on behalf of: Glenn Broadbent Albatross QT Ltd The New Zealand Historic Places Trust Sally Peake The Dilworth Trust Board Mansons TCLM Limited David Muir

DECISION ON PLAN CHANGE 1 – HAURAKI GULF ISLANDS SECTION OF THE AUCKLAND DISTRICT PLAN

1.0 INTRODUCTION

1.1 This decision is one in a series which address proposed changes to sections of the Auckland Council District Plan in order to implement protection for viewshafts to a number of volcanic cones in the Auckland region.

1.2 The “sections” of the District Plan were formerly the separate district plans of the various councils which were amalgamated to form the new Auckland Council. As a consequence, each proposed change is to be considered separately. Separate evaluation reports under section 32 of the Resource Management Act were prepared for each proposed change, each change was individually notified to the public, and a

Plan Change 1 3

separate decision following the hearing of evidence at the hearings and consideration of the reports prepared on behalf of the Council is required from the Commissioners.

1.3 The proposed plan changes are:

• Plan Change 339 to the Isthmus section of the District Plan (“PC 339”)

• Plan Change 67 to the Central Area section (“PC 67”)

• Plan Change 59 to the Manukau section (“PC 59”)

• Plan Change 43 to the Waitakere section(“PC 43”)

• Plan Change 1 – formerly labelled as Variation 11 - to the Hauraki Gulf Islands section (“PC1”), and

• Plan Change 40 to the North Shore section (“PC40”).

Background

1.4 Auckland’s volcanic field covers around 100 square kilometres. It originally contained 48 explosion craters. A number of these have been lost through quarrying and development. The remaining volcanic features define Auckland and have international, national, regional and local significance. An application to have the region’s volcanic field recognised by World Heritage status is being progressed. The volcanoes are particularly valued by tangata whenua and are part of the natural and cultural heritage of Auckland: they make Auckland unique. The cones and their curtilage also provide islands of naturalness, open space, and greenery which interact with the city’s constantly changing urban landscape.

1.5 Volcanic viewshafts are an integral component of the Council’s management of Auckland‘s volcanic field. They protect important views to and between the cones and, along with controls on the height of buildings around the cones (known as Height Sensitive Areas or “HSAs”), are a long-standing component of the region’s planning techniques. Views of the volcanic cones are generally protected by limiting the maximum building heights beneath each shaft to ensure that encroachment into the shafts does not occur and that significant views are maintained. The HSAs are intended to protect private property rights and to provide for reasonable use of the land beneath a viewshaft by allowing buildings to be built up to specified heights. Other height sensitive areas also protect the slopes of the volcanic cones from over-development.

1.6 The Resource Management Act 1991 (the Act”) requires every region in the country to have a regional policy statement. Under the planning framework required by the Act, regional and district plans cannot be inconsistent with a regional policy statement which functions as an umbrella policy document for environmental planning and policy development. Section 75 of the Act requires that a district plan must “give effect to” a regional policy statement and section 73 provides that a local

Plan Change 1 4

authority must amend its district plan, or proposed district plan, if the regional policy statement is changed or varied.

1.7 The viewshafts to be considered are already included in, or have already been deleted from, the Auckland Regional Policy Statement (“ARPS”), a planning instrument prepared and administered by the former Auckland Regional Council and now the responsibility of the Auckland Council (“the Council”).

1.8 Most of the proposed plan changes do not introduce any new policies or rules into the sections of the District Plan, although these have to be inserted into the Hauraki Gulf Islands and Waitakere sections because those sections have not included any volcanic viewshafts to date. The wording of relevant policies and rules in the North Shore section is proposed to be amended to be consistent with the ARPS, and objectives and rules are also proposed to be amended in the Central Area section together with some new policies being introduced to reflect the viewshaft protection proposed by PC67.

1.9 We do not regard any of these amendments or insertions to those sections as reflecting any significant policy shift on the part of the Council, particularly in the context of the existing provisions of the ARPS and those which appear in other sections of the District Plan. Consistently with section 32(3) we regard the objectives as being the most appropriate way to achieve the purpose of the Act and the policies as the most appropriate way to achieve those objectives. We note also that the existing objectives and policies will already have been tested as to their appropriateness at the relevant times.

1.10 The ARPS sets out the broad resource management issues, objectives and policies for the Auckland region to achieve integrated management of its natural and physical resources. Following a change to its content, the document now identifies 87 volcanic cone viewshafts, many of which have been included in Auckland’s planning instruments since the mid-1970’s but also others which were introduced into the ARPS by Plan Change 8 (along with other measures) following a decade of research and work by the ARC and territorial authorities to review and update their respective plans and, later, the settlement of appeals in 2012 against the ARC’s decisions on this aspect of that particular plan change. A resurvey of all viewshafts and better contour data had also led to a change in height and extent for various other existing viewshafts through Plan Change 8. Those amendments are also being implemented by the current proposed changes to sections of the District Plan.

1.11 The current plan changes seek to implement the later 2012 viewshafts, and amended viewshafts, through the various sections of the District Plan described earlier. The reasons for inserting these viewshafts into the District Plan are:

(a) there is an inconsistency between the ARPS and the sections of the District Plan as the later viewshafts are not presently recognised in the relevant District Plan provisions or the associated planning maps. The Council is therefore not “giving effect to” the ARPS as it is required to; and

Plan Change 1 5

(b) a regional policy statement1 may identify methods to implement policies, but it cannot include any rules (see section 62(1) of the Act). The scheme of the Act does not include direct enforcement of regional policy statements against members of the public. As a result the ARPS can only provide direction through its objectives and policies but cannot regulate any building activity which might affect the new and amended viewshafts identified by Plan Change 8 as being regionally significant because the regional policy statement contains no rules. To achieve that regulatory effect, the district (or unitary) plan must ensure that the agreed regional values are implemented through imposing rules to be applied when resource consent applications are made and assessed. If there were no such rules, encroachment of the viewshafts could be permitted and, depending on the activity status of the application concerned, there might be nothing the Council could do about it.

1.12 At the same time, there is an opportunity to delete seven viewshafts which were found through the ARPS plan change process (i.e., PC8) not to have any regional significance – provided that they are not found to have local significance instead.

2.0 THE COUNCIL’S REPORTS

2.1 Section 32 of the Act requires that an evaluation of a proposed plan change must be conducted before it is notified to the public2. This requires that the evaluation examines:

(a) the extent to which each objective is the most appropriate way to achieve the purpose of the Act; and

(b) whether, having regard to their efficiency and effectiveness, the policies, rules, or other methods are the most appropriate for achieving the objectives (section 32(3)).

The examination must take account of the benefits and costs of policies, rules or other methods; and the risk of acting or not acting if there is uncertain or insufficient information about the subject matter of the policies, rules, or other method (section 32(a)).

2.2 Along with agendas for each of the hearings which assessed the submissions and further submissions lodged on each change, the Commissioners were also provided with a comprehensive section 32 report comprised of separate reports which addressed each proposed plan change, each report having been prepared by a different Council planner based in the area concerned. The existing or amended objectives - and those to be inserted in the case of the Hauraki Gulf Islands and Waitakere - set out to implement objectives and policies consistent with those already expressed through the ARPS.

1 As opposed to a regional plan 2 As the further submissions period for each of these proposed plan changes closed prior to commencement of the December 2013 amendments to section 32, the pre-2013 version of the section applies

Plan Change 1 6

2.3 Each agenda contained a report prepared under section 42A of the Act (“the section 42A report”) which assessed each submission and further submission lodged and then recommended whether each of the submissions discussed should be accepted, in whole or in part, or rejected.

2.4 Our decision report is largely limited to those submissions which were covered during the hearings. In any event, the Act does not require us to address every single submission and then make a specific finding whether it is accepted or rejected. The approach we have adopted is to make a recommendation in respect of a particular submission where appropriate in our discussion of particular points, and in the absence of that to accept the Council’s recommendations unless the context clearly indicates that we have taken a different view. A copy of each plan change in accordance with our decisions is attached at the end of each decision.

2.5 Overall responsibility for compiling the materials on behalf of the Council fell on principal planner Fiona Sprott who co-ordinated the Council’s team of reporting planners and who was also involved with the volcanic cones aspect of the former ARC’s Plan Change 8. Ms Sprott gave a brief introduction to all of the changes when the hearings opened. Her advice was that the intention is that the changes are simple and “they do not attempt to solve existing District Plan issues. They merely attempt to incorporate the new and amended viewshafts in the best and most appropriate way to fulfil the purpose of the Act”. She added later that “these plan changes do not attempt to review the viewshafts as a concept or to introduce new viewshafts outside of those in the ARPS”. In her view, the review of the District Plan as a whole through the Unitary Plan process is “better placed to look holistically at any paradigm shifts”.

2.6 She said that in most cases very little text of any of the sections of the Plan was proposed to be changed where there are existing provisions already. The two sections of the District Plan – namely, Hauraki Gulf Islands and Waitakere – where new provisions had to be drafted because there are no current volcanic viewshafts aimed to use existing objectives and policies where possible and to include straightforward rules to provide the protection the ARPS requires. Those objectives and policies will have been tested as to their appropriateness at the relevant times.

2.7 The viewshafts were mapped and coordinates were provided for the ARPS process so in Ms Sprott’s view there should be no doubt as to where they are located. She said the proposed plan changes had “faithfully followed” the mapped viewshafts and also referred plan readers to the coordinates in Appendix L of the ARPS. In her opinion it would be outside the scope of the current hearings to review the location and/or height of the viewshafts. There is an exception to this which we discuss in relation to PC 339 and that is the viewshaft labelled “T7” which had its origin point on the Newmarket Viaduct. Since PC8 to the ARPS was settled, the Viaduct has been effectively relocated by road widening and the T7 origin point has suffered accordingly.

2.8 The only reassessment undertaken for the hearings was to examine the viewshafts which the ARC had deleted as being no longer regionally significant but which may

Plan Change 1 7

have local significance instead. This reassessment was conducted by landscape architect Brad Coombs whose report was based on an earlier version prepared by Jeremy Froger.

2.9 Before the hearings were closed, each of the reporting officers was invited to make any further comments after having heard the evidence. These were supplied in writing. In the case of Ms Sprott (Isthmus Section) and Ms Hayes (Manukau Section) the comments were provided several days after the hearings had concluded. The hearing was closed on 10 March 2014 after each of the Commissioners had an opportunity to consider the officers’ comments and to consider whether any further information might be required before our deliberations commenced.

3.0 NOTIFICATION AND SUBMISSIONS ON THE PROPOSED CHANGES

3.1 The plan changes were notified to the public on 31 May with the submission period closing on 1 July 2013. There was a complication with respect to notification of some landowners because of a technical error which had resulted in around 10,000 owners and occupiers not having received letters advising of the proposed changes during this first notification period. These people were given a 20 working day period in which to make a late submission with a deadline of 13 September being applied for receipt of those. A waiver of the submission deadline for these particular submissions was granted by the Council under delegated authority.

3.2 By the close of the primary submission stage, a total of 131 submissions had been lodged. This was made up of: 10 submissions on PC1 (Hauraki Gulf Islands), 13 submissions on PC 67 (Central Area), 32 on PC 59 (Manukau), 51 on PC 339 (Isthmus), 14 on PC 40 (North Shore), and 11 on PC 43 (Waitakere).

3.3 The further submission period for each change except for the Manukau section was notified on 11 October (4 November in the case of Manukau) following which a total of 43 further submissions had been received. There was one late further submission. This was lodged by Te Whare Akoranga o Te Pane o Mataoho (i.e, the Mangere Mountain Education Trust). The Commissioners have resolved pursuant to sections 37 and 37A of the Act to waive the deadline for its acceptance and we have taken it into account accordingly. The reasons for acceptance are that the submission raised matters relevant to the wider public interest, no party was opposed to, or disadvantaged by, its being accepted, and no party would be directly affected if the waiver of the time limit was to be granted in this case.

3.4 The majority of submissions lodged related to individual sites. In some cases the submissions supported the new heights proposed by a plan change (mostly where these were higher than the current, operative heights) while in others the submissions sought removal of a specific site from a viewshaft, or removal of a viewshaft altogether. There were nine region-wide submissions.

Plan Change 1 8

3.5 Overall the submissions on the changes reflected the following themes:

• support for protection of the volcanic viewshafts

• opposition to specific viewshafts over specific properties

• opposition to protection of the visual integrity of volcanic cones

• opposition to the various rules in the individual sections of the District Plan.

Regionwide submissions

3.6 The parties who lodged regionwide submissions included Tram Lease Ltd/Viaduct Harbour Management Ltd/ Viaduct Harbour Holdings Ltd (jointly), Peake Design Ltd, the New Zealand Historic Places Trust, Jenni Fernandez, James Hilford, and the Mountain View School Board of Trustees along with iwi groups which we discuss in a separate section below. Auckland Transport and the Housing New Zealand Corporation submitted on more than one, but not all, of the proposed changes.

3.7 At the hearings however evidence was called by most of these parties in respect of a specific change only and the global concerns were therefore not generally addressed in any detail. However the content of the submissions nevertheless remains to be dealt with regardless of whether or not any oral supporting evidence was presented in support of the points made.

3.8 Tram Lease Ltd, Viaduct Harbour Management Ltd and Viaduct Harbour Holdings Ltd opposed each of the plan changes in their entirety. They claimed that imposing the viewshafts would render the land beneath them incapable of reasonable use, the sites listed in an appendix to their submission (‘Appendix B’) were not located in sensitive areas, and the shafts were being proposed in the absence of any evidence of probative value to support that step.

3.9 The Council’s response in the section 42A report was that it would naturally expect that if a proposal came close to the approximate heights shown in the maps for each of the viewshafts a surveyor would then be employed by an applicant to show exactly where a building or structure was planned to be placed, in order to determine whether the viewshaft would be breached or not. The report said further that none of the sites in the submitters’ appendix would be rendered incapable of reasonable use as all allowed for some form of development to at least 9 metres.

3.10 Housing New Zealand wished to ensure that all of the sites it owns or manages – of which there are hundreds - can in each case be developed in accordance with the height limits permitted in the underlying zone. In common with several other submitters it urged that the Council’s competing objectives of heritage protection and growth in the ARPS need to be reconciled. HNZC also sought various changes to rules (in the two sections of the District Plan it submitted on) relating to building coverage, landscaping, impermeable surfaces where the land would be affected by a viewshaft. As explained earlier, our jurisdiction does not extend to amending the existing rules.

Plan Change 1 9

3.11 The Council’s response was to point out that the plan changes do not set out to amend any development controls, and in any event they are specifically applied for reasons such as natural hazards and stormwater control in the case of impermeable surfaces, and for amenity in the case of landscaping requirements. Further, it would not be appropriate for these controls to be amended in a piecemeal fashion because of overriding height restrictions proposed by the plan changes.

3.12 Another issue HNZC raised was the status to be applied to those activities which breach the viewshaft controls. In all of the sections of the District Plan except for Manukau such an activity is required to be considered as non-complying. Breaches in the Manukau district are discretionary activities instead. The Commissioners queried this internal discrepancy in the District Plan as well as the differing points from which height is to be measured under each of the different sections. The response we received was that the sections of what is now the Auckland Council District Plan are comprised of legacy district plans and at the time they were originally formulated they represented the aspirations of the different communities and councils that were involved at that time. The appropriate time for discrepancies to be ironed out is during the Unitary Plan process which sets out to reflect the aspirations of the region as a whole.

3.13 Auckland Transport’s concern as revealed by the submissions lodged on its behalf is that the infrastructure it is required to provide, such as terminals and bus interchanges, may breach the viewshafts and it sought an exemption from having to comply with the proposed controls as a result.

3.14 In fact in areas such as the Auckland Isthmus where roads are designated, AT would not be required to comply with the viewshaft controls, as it can undertake any activity in accordance with the designated purpose (along with any conditions which may have been imposed on the designation). Apart from those, the Commissioners were hard pressed to imagine what roading structures would actually be large enough to infringe a viewshaft as any structure outside a designated area would be permitted up to the height permitted by the underlying zone. Any structure over that height would be subject to the resource consent process to assess its effects and we confidently expect those would not be limited to matters of height only. The same comment applies to building developments that may be proposed by other submitters such as Tram Lease Ltd, Viaduct Harbour Management Ltd and Viaduct Harbour Holdings Ltd.

3.15 The Peake Design Ltd submissions requested inter alia that an image of each view be included in the District Plan as well as the surveyed coordinates, and also that a rule be inserted in each section of the Plan setting out assessment criteria for consideration of breaches of viewshafts. The reporting officers advised, and we agree, that it would be unwieldy to include photographs of every viewshaft in the District Plan. However it will be arranged that photographs will be displayed in the relevant parts of the Council’s website. As for the request for assessment criteria to be included, in all but the Manukau section of the District Plan breaches of viewshafts controls are required to be considered as non-complying activities. Assessment criteria do not apply to that activity classification.

Plan Change 1 10

3.16 It follows that these aspects of the Peake Design Ltd submissions are rejected.

3.17 The New Zealand Historic Places Trust (now Heritage New Zealand) submissions offered a number of additional viewshafts for consideration, including views which have opened up since State Highway 20 was constructed and views of the Waitakere Ranges. On this occasion our jurisdiction is limited to the viewshafts contained in the ARPS as included in the notified changes and as the suggested additional views do not form part of the content of these we lack jurisdiction to follow through on the Trust’s requests if we happened to agree with them. These aspects of the Trust’s submissions are rejected accordingly.

Iwi concerns

3.18 The iwi groups who submitted on the plan changes were in full support, to the point where they requested that the nature of the shafts should be greatly expanded to cover spiritual and cultural shafts as well. Where those shafts would be located was not specified and thus remains a matter of speculation.

3.19 The submission by Ngati Whatua Orakei Whai Maia Ltd presented the feedback it had generated earlier for the draft Unitary Plan prior to its notification. Its feedback stated that not enough attention had been given to encompassing a Maori world view in the objectives, policies and rules of the District Plan as a whole, and in particular to protection of Maori taonga such as volcanic cones. The submission suggested that all breaches of viewshafts should to be notifiable to iwi, and that further volcanic viewshafts and landscapes should be identified and considered from a Maori cultural perspective, such as viewshafts from marae to maunga or from important ancestral sites to related maunga.

3.20 Te Akitai Waiohua’s submission was generally supportive of the plan changes. In particular, Te Akitai Waiohua supported protection of viewshafts to Te Pane o Mataoho (Mangere Mountain), Maungakiekie (One Tree Hill), Maungawhau (Mt Eden) and Maungarei (Mount Wellington). It stated that collectively the maunga form part of an important cultural landscape and it is essential that the relationship between the maunga is physically maintained as provided by the viewshafts. However, Te Akitai Waiohua feels that in their current form the plan changes do not provide for the relationship of Maori and their ancestral lands, sites and taonga in accordance with section 6 of the Act. The submission sought that the plan changes recognise the relationship between Maunga and Mana Whenua better. It suggested that objectives, policies and rules should recognise the wider cultural landscape.

3.21 Additionally, Te Akitai Waiohua requested that new viewshafts and any associated height sensitive areas should be added to provide protection for views between the following key places of local and cultural significance:

(a) Pukaki Marae and Matukutureia (McLaughlins Mountain)

(b) Pukaki Marae and Te Pane o Mataoho (Mangere Mountain)

(c) Puketutu Island and Te Pane o Mataoho.

Plan Change 1 11

The submission also sought that all breaches of viewshafts or height sensitive areas be classified as non-complying activities whereas – uniquely when compared with the other sections of the District Plan - in the Manukau section such breaches are considered as discretionary activities.

3.22 We heard evidence on behalf of Te Akitai Waiohua during the Manukau hearing and will discuss its evidence relating to Te Pane o Mataoho and our findings on that aspect in our decision on that particular plan change.

3.23 As to the wider issues raised by both Ngati Whatua and Te Akitai Waiohua, the appropriate place for that discussion is in the context of the forthcoming Unitary Plan hearings. The current plan changes seek to do no more than implement the viewshafts which are already incorporated in the ARPS and do not set out to record any new policies on behalf of the Council. If there is to be regionwide protection of cultural viewshafts (which were not defined in any of the submissions received) the Unitary Plan hearings are the appropriate forum for that discussion. Consequently, those parts of the submissions lodged by Ngati Whatua o Orakei and Te Akitai Waiohua which seek the wider protection be implemented by these particular plan changes are rejected.

4.0 STATUTORY CONSIDERATIONS

4.1 The Commissioners have been granted delegated authority by the Council under section 34A of the Resource Management Act to make a decision on each of the changes after considering all the submissions and statements and evidence presented. The evidence to be taken into account includes the section 32 evaluations and the reports prepared by the officers for the hearings as well as their final oral and written comments before the hearings were formally closed.

4.2 Section 74 sets out the matters to be considered for a change to a district plan. Section 75 is also relevant as, amongst other things, it requires us to ensure that the plan changes are consistent with the operative regional policy statement. We are empowered to approve each plan change as a whole, or with modifications, or we may reject it entirely. We are not required to give a decision that addresses each of the submissions lodged individually but must give reasons for the conclusions we reach.

4.3 In reaching our decisions, under section 74 we are required to have regard to (inter alia):

(a) any proposed regional policy statement;

(b) any management plans and strategies prepared under other Acts, and any relevant entry in the Historic Places Register;

(2A)(a) any relevant planning document recognised by an iwi authority and lodged with the Council, to the extent that this document has a bearing on the resource management issues of the district.

Plan Change 1 12

So far as (a) is concerned, no matters of relevance were drawn to our specific attention apart from numerous mentions of the proposed Auckland Unitary Plan. We record for the purpose of section 74(2A) that we were provided with a copy of the Ngati Whatua Iwi Management Plan. Other documents such as the New Zealand Coastal Policy Statement were also supplied. The Auckland Plan is a higher level strategic document, prepared by the Auckland Council under the Local Government Act, and was referred to in the background materials and also Ms Sprott’s opening statement on behalf of the Council planners. We have taken all these materials into account when reaching our decisions.

4.4 In the course of delivering her legal submissions for Westfield New Zealand, Ms Lupis referred us to a document described as ‘the Wren report’. We obtained a copy of this before the hearings were closed. The report is titled “Volcanic Features in the Auckland Regional Policy Statement – Recommended Changes” and was prepared by planning consultant David Wren in October 2010. He had resurveyed 14 viewshafts proposed for deletion by the Regional Council’s Plan Change 8 but which had later been agreed by the appellants to the ARC’s decision to be reinstated. He set out recommendations in respect of each of the resurveyed shafts. These included in the case of half of the viewshafts he had resurveyed that a particular shaft should be deleted because of intervening vegetation or buildings which had severely affected or obliterated views in the meantime, or that a particular viewshaft should be retained but with a different origin point for similar reasons. With one exception all the resurveyed viewshafts originated in the Isthmus area (the exception being a view from the Manukau area toward cones on the Auckland Isthmus).

4.5 However, the Council advised us that the Wren report was commissioned during a process of reviewing the Regional Policy Statement which was running parallel to, but independently of, the appeals to Plan Change 8. The Wren report was not endorsed by the ARC, it was not placed before any of its committees, and it was not passed on officially to the Auckland Council. As a result, it represents the opinions of the author only, has not been tested by any formal process (including during these hearings), and is therefore to be afforded very little weight.

4.6 As set out earlier, section 75 of the Act requires that a district plan is to give effect to a regional policy statement. No party raised any issue as to whether or not any of the proposed changes was ‘giving effect’ to that document, or needed to be amended to comply with section 75.

4.7 Schedule 1 of the Act also addresses changes to district plans and we have also borne its provisions in mind.

Section 32

4.8 Before any plan change is notified, section 32 requires that an evaluation is to have been carried out by the local authority. This is the ‘section 32 report’ referred to earlier. In this case one such report for each of the six changes was produced prior to notification of each change.

Plan Change 1 13

4.9 A section 32 evaluation is an ongoing process including consideration of the matters that were raised during the hearings: it is as much a process as a report. The evaluation must examine the extent to which any proposed objective is the “most appropriate” way to achieve the purpose of the Resource Management Act and whether, having regard to their efficiency and effectiveness, the policies, rules of other methods are the most appropriate for achieving the objectives.

4.10 Section 32 provides (in part):

(3) An evaluation must examine—

(a) the extent to which each objective is the most appropriate way to achieve the purpose of this Act; and

(b) whether, having regard to their efficiency and effectiveness, the policies, rules, or other methods are the most appropriate for achieving the objectives.

(4) For the purposes of the examinations referred to in subsections (3) and (3A), an evaluation must take into account—

(a) the benefits and costs of policies, rules, or other methods; and

(b) the risk of acting or not acting if there is uncertain or insufficient information about the subject matter of the policies, rules, or other methods.

4.11 As covered earlier, the policies - or the consequential amendments to policies - proposed by the changes for the Central Area (which involves insertion of policies that are new to that particular section), Waitakere, North Shore and Hauraki Gulf Islands sections are consistent with existing provisions in the other sections. Where new rules have been introduced these are required to implement the viewshafts in the two areas where there have been none before now.

4.12 The Commissioners were satisfied with the section 32 reports provided for these hearings.

4.13 However, in his evidence on behalf of Tram Lease Ltd, Viaduct Harbour Management Ltd and Viaduct Harbour Holdings Ltd planning consultant Mr Foster was critical of the evaluation process as were some of the other planners who appeared for other parties during the hearings. Mr Foster said he had no difficulty with volcanic viewshafts protection as a planning tool in the context of the Auckland urban environment provided the rationale and logic for the viewshafts is soundly based from a sustainable management perspective, particularly in regard to each of the origin points.

4.14 His opinion is that simply adopting the ARPS viewshafts for inclusion in the District Plan means a careful balancing process of the competing factors that ought to be undertaken had not been conducted by either the reporting planners or, prospectively, by the Commissioners. He queried the basis of the choice of origin points, for example viewshaft A13 to Mount Albert which commences in the middle of

Plan Change 1 14

the motorway carriageway at the Te Atatu interchange and is therefore not generally ‘publicly accessible’ because of the traffic that uses the road. (We note as an aside that this viewshaft was not reconsidered by the Wren report.)

4.15 Further factors Mr Foster drew our attention to were: how much of a volcanic cone should be protected from development, the private property rights of the owners of land which is on the slopes, the extent of already existing development on the slopes, and balancing protection measures like these against other high level regional objectives such as achieving intensification along transport corridors and around train stations. His stance was that all the factors he mentioned had not been considered in the Council’s evaluations, saying “...there seems to be a presumption that any viewshaft is a good viewshaft”.

4.16 We do not agree that if there is already some development on the slopes of a particular volcanic cone the extent of viewshaft protection should be limited to only those parts where there are no structures at present. That would serve to encourage further development to ‘fill in the gaps’ on the then unprotected lower slopes and much of the context of the cone, and consequently the views which are aimed to be protected, would be lost. As the points of origin were litigated when PC8 to the ARPS was being considered and settled it is not appropriate for us to revisit that matter now.

4.17 We accept there is an apparent tension between the Council’s various strategic regional objectives. Any resolution of those is a matter for the Council as policy- maker to address and does not form part of our brief on the current matters. For present purposes we can do no more than record the concern, which we note Mr Foster was not alone in bringing to our attention.

4.18 On behalf of these same three parties Mr Daya-Winterbottom submitted, among other things, that the costs of all the proposed changes, on land owners in particular, have also not been assessed. He submitted that given the dated information on which the ARPS viewshafts are based these plan changes would best be considered under the Unitary Plan process. That may well be the case. For present purposes however we are not convinced that the age of the information has anything to do with the proposal to retain the viewshafts through each of the current changes, which set out to do no more than reflect the ARPS content as required by the Act. Auckland’s volcanic cones have existed for hundreds, if not thousands, of years. We fail to see how in that context 20 years would make any difference, let alone a difference so significant that all the viewshafts currently in the ARPS are misplaced. Nor were we provided with any substantive detail on which we could have based such a conclusion in any case.

5.0 PART 2 OF THE ACT

5.1 The ARPS, having passed through the resource management process and subsequently been made operative, is deemed to give effect to Part 2 matters. It follows that implementing its direction in relation to the volcanic viewshafts will have the same outcome.

Plan Change 1 15

5.2 One of the components of sustainable management encapsulated in Part 2 is the protection and/or preservation of deserving areas which we regard as including major public views. Section 6(b) in Part 2 provides further guidance by providing:

In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance: ....

(b) the protection of outstanding natural features and landscapes from inappropriate subdivision, use, and development: ..

5.3 There is ample authority for all of the volcanic cones we are concerned with here to be regarded as outstanding natural features and therefore matters of national importance in terms of section 6(b). In an appeal heard by the High Court in March 2003 - Auckland Volcanic Cones Society Inc v Transit New Zealand [2003] NZRMA 316 – it was accepted that the Mount Roskill volcanic cone is an outstanding natural feature and a matter of national importance by virtue of section 6(b). The Environment Court had taken the same view when it heard the case prior to the High Court appeal. The other cones, including the sea-based cones of Rangitoto Island and Browns Island, are also recognised as outstanding natural features and are accordingly subject to the same provision.

5.4 A planning instrument which provides that any subdivision, use or development that adversely affects an area of outstanding natural attributes would be inappropriate is regarded as being consistent with the provision. In discussing the apparent tension between the statutory purpose of enabling development and at the same time achieving the protections the Act requires in provisions such as section 6, the Supreme Court said very recently that “inappropriate” should be interpreted in section 6 against the backdrop of what is sought to be protected or preserved (Environmental Defence Society Inc v The New Zealand King Salmon Company Ltd and Others [2014] NZSC 38, 17 April 2014). This is where the distance and/or width of a viewshaft is important and harks back to Mr Foster’s evidence that suggested that the Commissioners should consider how much of a particular cone should remain visible, and from where.

5.5 The Supreme Court further acknowledged in the decision that section 5(2) contemplates environmental preservation and protection as an element of sustainable management of natural and physical resources. It said this is reinforced by the terms of section 6(a) and (b) which are intended to make it clear that those implementing the Act must take steps to implement the protective element of sustainable management. The Court acknowledged however that section 6 does not give primacy to preservation or protection saying: “... it simply means that provision must be made for preservation and protection as part of the concept of sustainable management. The fact that sub-sections 6(a) and (b) do not give primacy to preservation or protection within the concept of sustainable management does not mean, however, that a particular planning document may not give primacy to preservation or protection in particular circumstances”.

Plan Change 1 16

5.6 Similar reasoning appears in the Volcanic Cones v Transit NZ decision where the High Court said (at para [29]) that even if a feature such as the Mount Roskill cone is identified as of national importance, “.. that does not of itself amount to an absolute bar to [a] proposed use or development”. That court went on to point out that section 6(b) recognises this by requiring the protection of such features from “inappropriate use and development” (our emphasis).

5.7 We have drawn attention to these judicial statements because of the submissions presented to us which stated, or implied, that development rights beneath the viewshafts would be wholly negated or curbed to the point where it would be virtually impossible. (There is an exception to this which we discuss in our decision on the proposed change to the Manukau section of the District Plan where two of the proposed viewshafts were proposed not to be underlain by a Special Height Area and if that position is maintained the theoretical height limit would be zero.)

5.8 Section 7 of the Act lists “other matters” to which particular regard must be paid. These include the maintenance and enhancement of amenity values, and maintenance and enhancement of the quality of the environment. “Environment” itself has a very wide definition and includes all natural and physical resources, amenity values (those natural or physical qualities and characteristics of an area that contribute to people’s appreciation of its pleasantness, aesthetic coherence and cultural and recreational attributes), and the social economic aesthetic and cultural conditions which affect those matters. Protecting views of the volcanic cones that define Auckland clearly falls within the definitions and consequently those section 7 matters.

5.9 Section 8 requires all persons exercising powers and functions to achieve the purpose of the Resource Management Act to take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi) in relation to managing the use, development and protection of natural and physical resources. This requirement has been satisfied and we refer to our discussions of the iwi submissions lodged on the proposed changes in that regard. We record also that the Council conducted pre- notification consultation meetings with all the iwi authorities who had responded to an invitation to attend hui to be held in the north and to the south to discuss the proposed changes and to give feedback on the maps and text changes. Sixteen authorities had responded and 8 groups attended hui where a range of issues were raised including a concern that the Maori world view was not being reflected in the current district plan provisions.

5.10 We turn now to the specific Plan Change proposed for the Hauraki Gulf Islands section of the District Plan. The other proposed plan changes will be covered in separate decisions, although these introductory sections are common to them all.

6.0 PROPOSED PLAN CHANGE 1 - HAURAKI GULF ISLANDS

6.1 There was no active contest over whether or not proposed Plan Change 1 should proceed (leaving aside the submissions which suggested there should be no viewshafts at all, anywhere), and no evidence was presented at the hearings against inclusion of viewshafts in this section of the District Plan. That might be explained by

Plan Change 1 17

the fact that in the area which this section of the District Plan covers these viewshafts does not pass over any occupied properties.

6.2 The viewshafts proposed for the Hauraki Gulf Islands section are:

• eight new viewshafts for Rangitoto Island

• five new viewshafts for Browns Island (Motukorea)

• associated Height Sensitive Areas for all of Rangitoto, Browns Island and part of Motutapu.

As there are currently no volcanic viewshafts in the Hauraki Gulf Islands section of the District Plan, relevant objectives, policies and rules also form part of PC1 and are proposed to be inserted into Section 10 of the text. Consequential amendments to two planning maps are required to reflect the viewshafts and underlying SHAs.

6.3 Appendix 4 of the ARPS records (at 165) that Browns Island is “... the relic of a much larger structure created when sea levels were low and the harbour dry land. Remnants of a very large tuff cone are preserved in the north eastern ridge and cliffs. The scoria mound is a complex of coalescing cones, while the associated lava field is now beneath the sea. The New Zealand dotterel breeds here. Two or three pairs of black-backed gulls nest on the island. Reef herons and variable oystercatchers have been sighted. The island is administered by the Department of Conservation, and the volcanic features are considered to be of international importance”.

6.4 The ARPS appendix describes Rangitoto Island as being “... of international significance as a volcanic landform because each stage, from the initial colonisation of raw basalt and scoria to the formation of scrub to immature forest, can be seen. It is the youngest and largest of the Auckland volcanoes having been active at least within the last 400 years. The greater part of the island is a low dome built up by successions of basaltic lava flows, surmounted by a cluster of scoria mounds and cones, the last built of which has a deep central crater”. Later in the description the ARPS says “Rangitoto Island is a conspicuous and important landmark which is visible from many parts of the Region and contributes much to Auckland’s natural setting”. There is no description of Motutapu provided in the ARPS appendix.

6.5 PC1 was notified as ‘proposed Variation 11’ on 31 May 2013 and 10 submissions were subsequently lodged with the Council. There was one further submission received following the further submission period notified on 11 October 2013. As the Hauraki Gulf Islands section of the District Plan was made operative in the meantime, the variation was renamed as proposed Plan Change 1.

6.6 The issues raised by the submissions on PC1 were:

• total opposition to inclusion of the viewshafts in this section of the District Plan (Jenni Fernandez, Sue McLachlan, the Mountain View School Board of Trustees, Tram Lease Ltd, Viaduct Harbour Holdings Ltd and Viaduct Harbour Management Ltd).

Plan Change 1 18

It appears in the case of the Mountain View School Board of Trustees that the concern is not whether the plan change should be implemented at all but rather the position was that the plan change does not go far enough in preventing any intrusions whatever into a viewshaft. We note the section 42A report suggests that Tram Lease Ltd, Viaduct Harbour Holdings Ltd and Viaduct Harbour Management Ltd have no holdings in this area but that does not serve to undermine the matters of wider principle that their submissions raised;

• total support for the proposed plan change (James Hilford);

• qualified support for the change (Peake Design Ltd, Ngati Whatua Orakei Whai Maia Ltd, the New Zealand Historic Places Trust, the Te Akitai Waiohua Waka Taua Trust, Auckland Transport).

6.7 The materials the Commissioners received in respect of the Hauraki Gulf Islands section were Ms Thompson’s section 32 evaluation report and the agenda she prepared for the hearing which included copies of the submissions lodged. There were no issues specific to this section of the District Plan actively in contention during the hearings that we have to cover for this particular change.

6.8 Each of the individual section 32 reports had several sections in common along with specific detail and evaluations of each proposed change. Ms Thompson’s specific evaluation of PC1 concluded that:

• the addition of the proposed objective, policies and rules relating to the protection of volcanic viewshafts to Rangitoto and Browns Island were the most effective and efficient means to afford protection of the visual integrity of these volcanic features

• there were no conflicting district plan objectives and policies which suggest that the viewshafts to be added should not be afforded protection;

• adding the viewshafts would be in accordance with the Council’s functions and responsibilities under sections 31, 74 and 75 of the Act, including the need for the district plan to give effect to the ARPS;

• adding the viewshafts is consistent with Part 2 of the Act; and

• having evaluated the alternatives, benefits and costs, the proposed change was the most appropriate means of achieving the purpose of the Act because it would help protect views to and between volcanic cones while enabling people and communities to provide for the economic and social wellbeing.

6.9 There were some criticisms aired during the hearings that the Council officers had either not examined, or had not sufficiently evaluated, the economic cost that imposing viewshafts over private land and/or development sites would cause to owners. In section 7 of the section 32 report Ms Thompson provided considerable discussion and analysis of the options including doing nothing. She pointed out that

Plan Change 1 19

any new structure on Rangitoto Island or Browns Island already requires resource consent as a restricted discretionary activity under rule 10a.25.5 for additions, alterations and new buildings in the Conservation Land Unit. She went on to note that the proposed Height Sensitive Area of up to 6.5m beneath the proposed viewshafts would still allow for additions or alterations to historic baches or Department of Conservation (“DOC”) buildings, and for construction of new DOC and “ARC”3 buildings up to that height as either a permitted or discretionary activity. Any proposal over 6.5m would require consent as a non-complying activity. Given the outstanding landmark value of these features we think that is appropriate.

6.10 Each of the analyses of the proposed objective, the policies and rules covered in the evaluation report included consideration of associated costs although apart from the rules analysis these tended to be more in terms of public rather than individual, private costs. In this regard, any restrictions that are imposed on landowners through planning regimes have at least a theoretical cost, but this is the reason why those same regimes expressly recognise that applications will be made for consent to breach all or some of the applicable provisions. Whether or not such applications will be granted will depend on the facts of any particular case. To the extent that any of the criticisms we heard suggested that the rights of landowners beneath the viewshafts would be breached to the point where the land concerned would be incapable of reasonable use we disagree.

6.11 After reviewing all the submissions lodged, in the section 42A report prepared for the hearing Ms Thompson’s conclusions had not changed and she recommended that Plan Change 1 should be adopted as notified. We agree with her recommendation, subject to the amendments we record below.

7.0 CONCLUSION

7.1 After considering the section 32 evaluation, the submissions lodged on Plan Change 1, the report prepared under section 42A of the Act and associated materials, the Commissioners have determined that Ms Thompson’s recommendations should be adopted and Plan Change 1 is to be inserted into the Hauraki Gulf Islands Section of the District Plan, subject to the amended map legend that was provided before the hearings were closed and other matters which we set out below. (The legend now makes express reference to Appendix L of the ACRPS so the relevant coordinates for each viewshaft can be identified.)

7.2 The submissions and further submissions that were lodged on PC1 are accepted or rejected accordingly.

7.3 Accordingly, the Commissioners direct the Auckland Council to amend the Hauraki Gulf Islands Section (2013) of the Auckland District Plan by including the volcanic viewshafts, height sensitive areas and associated provisions and maps as set out in the Appendix to this decision along with any consequential amendments required as a result of this decision. A typographical error in 7.15.3.2 (Non-complying activities)

3 I.e., according to the activity table embodied in that rule

Plan Change 1 20

which referred to “HSAS” is also to be corrected to “HSAs” in accordance with the annexed text.

Leigh A McGregor (Chair)

27 August 2014

Plan Change 1 21

Appendix

PLAN CHANGE 1 TO THE HAURAKI GULF ISLANDS SECTION OF THE AUCKLAND DISTRICT PLAN AS APPROVED BY THE COMMISSIONERS

1 Text Amendments

All the approved is shown as underlined and any text to be deleted is shown with strikethrough.

1.1 – Amendments to Part 2 Resource Management Overview

2.2.1 Environment

The islands all lie within the Hauraki Gulf Marine Park, and are spread over a large area of the Hauraki Gulf. They are a significant part of Auckland City, and are all subject to the Hauraki Gulf Marine Park Act 2000 (‘the HGMPA’), which recognises the regional and national significance of the Hauraki Gulf. The islands contain substantial natural and physical resources which include location, climate, topography and landscape. In particular, the landscape values inherent in the natural environment of the islands contribute to the unique identity of this part of the city. The landscape values include the:

• varied coastline • rugged interior • volcanic landforms • bushed slopes • sweeping white sand beaches on north and eastern coastlines • visual amenity • ridgelines • bays and coastal headlands with significant areas of native bush and shrubs • catchments including; extensive wetland, watercourse and estuarine systems • significant and extensive wildlife habitats and ecological corridors • ecosystems.

1.2 – Amendments to Part 3 Strategic Management Areas

3.4 Other islands' strategic management area

3.4.3 Objective

To provide for recreation, conservation and other activities, including agriculture and horticulture, while ensuring the protection of the historic heritage, natural character of the landscape, ecosystems, visual amenity and the natural features of the other islands.

Plan Change 1 22

Policies

1. By protecting and, where appropriate, enhancing the natural features, such as wetland systems, indigenous vegetation, wildlife habitats and coastal and other ecosystems of the other islands.

2. By protecting the natural character of the landscape and visual amenity of the other islands, including views to and between volcanic cones.

3. By providing for the use and development of land for public open space and conservation and recreation activities.

4. By providing for a range of activities, including agriculture and horticulture, to occur where these activities are of an appropriate nature, scale, form and location.

5. By recognising and providing for the relationship between Ngati Rehua and Ngati Paoa and their ancestral lands, water, sites, waahi tapu and other taonga.

6. By protecting the historic heritage of the other islands.

1.3 – Amendments to Part 7 Heritage

7.7 Types of heritage items

The specific provisions for each of the heritage types are set out in separate topics in this part of the Plan as follows:

• archaeological sites • buildings, objects, properties and places of special value • conservation areas • ecologically significant sites • geological items • Maori heritage sites • trees • volcanic cones

1.4 – Add new section to Part 7 Heritage

7.15 Volcanic Viewshafts

Views of the Rangitoto and Motukorea (Browns Island) volcanic cones are valued by residents and visitors to the Hauraki Gulf, and their scenic amenity and heritage value contribute much to the character of Auckland. Geological items and landforms are protected by the Plan, but views to and from these features also need protection.

The maximum height for a particular site is usually below the height permitted by the volcanic viewshaft protection. Where viewshafts are below the maximum height, it may be necessary to impose special height limits. Height Sensitive Areas (“HSA”s) are areas of land beneath volcanic viewshafts where the height of the development permitted by the underlying zone breaches the floor of the viewshaft, or land located

Plan Change 1 23

on the slopes and surrounds of volcanic cones where height is controlled to protect the visual integrity of the cone.

Height Sensitive Areas have been applied to the slopes of Rangitoto and Browns Island to protect the visual integrity of these volcanic cones. The height sensitive areas have been set at 6.5m, the same as the maximum height limit for the Conservation Land Unit.

1.5 – Add new issue to Part 7 Heritage

7.15.1 Resource management issue

The potential loss of views to and between volcanic landmarks in the Hauraki Gulf Islands.

1.6 – Add new objective and policies to Part 7 Heritage

7.15.2 Objective

To protect the visual and physical integrity and values of the volcanic features of the Hauraki Gulf Islands, and to protect significant views to and between volcanic cones

Policies

1. Ensure that the overall contribution of the Hauraki Gulf’s volcanic features to the landscape character of Auckland is maintained, including physical and visual connections to, and views between, the volcanic cones.

2. Avoid the introduction of buildings or structures in viewshafts defined on the planning maps and above the specified building heights in the Height Sensitive Areas to protect views to and between the maunga/volcanic cones.

1.7 – Add new rules to Part 7 Heritage

7.15.3 Rules for Volcanic view shafts

7.15.3.1 Permitted activities

1. Buildings and structures located within a volcanic viewshaft which breach the floor of the viewshaft but do not exceed the height of the HSA.

2. Additions or alterations to existing buildings or structures within a volcanic viewshaft which will breach the floor of the viewshaft but will not exceed the height of the HSA.

7.15.3.2 Non-complying activities

1. Buildings and structures or any additions or alterations to existing buildings or structures within an HSA which exceed(s) the height of the HSA.

Plan Change 1 24

1.8 – Amend numbering of Part 7 Heritage

7.15 7.16 Interpretations and Definitions

7.16 7.17 Glossary of Maori terms

7.17 7.18 Additional information about heritage

Part A: Amendments to planning map 1, sheets 30 and 31

• Add the viewshafts B1, B2, B3, B5, B6, T1, T2, T3, T4, T7, T8, T9, and T0 as shown on the following maps (sheets) • Add the 6.5m Height Sensitive Areas as shown in orange on the following maps (sheets)

Plan Change 1 25

Plan Change 1 26

Plan Change 1