Legal Submissions on Behalf of Kiwirail Holdings Limited
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IN THE MATTER of the Resource Management Act 1991 AND IN THE MATTER of the proposed Northland Regional Plan LEGAL SUBMISSIONS ON BEHALF OF KIWIRAIL HOLDINGS LIMITED 10 SEPTEMBER 2018 A A Arthur-Young Phone +64 9 367 8000 Fax +64 9 367 8163 PO Box 8 DX CX10085 Auckland 3605180 1 Introduction 1. These legal submissions are presented on behalf of KiwiRail Holdings Limited ("KiwiRail") in support of its submission on the proposed Northland Regional Plan ("Proposed Plan"). 2. KiwiRail filed a brief of evidence from Ms Beals1 in support of its submission. KiwiRail 3. KiwiRail is a State Owned Enterprise responsible for the management and operation of the national railway network. This includes managing railway infrastructure and land, as well as rail freight and passenger services within New Zealand. KiwiRail has an interest in protecting its ability to operate, maintain and enhance its nationally and regionally significant railway network now and into the future. 4. KiwiRail has four designation corridors within the Northland Region: the North Auckland Line, and three branches to Dargaville, Marsden Point Branch and Okaihau. While not all of these branches are currently in operation, the importance of the rail network within the region is significant for supporting the movement of freight throughout the country.2 In particular, the Marsden Point Branch is planned but not yet built and will be a significant investment in regional infrastructure enabling growth at Northland's port. 5. The rail corridor within the region falls within the jurisdiction of the Proposed Plan where it: (a) crosses watercourses (including streams and rivers); (b) traverses the coastal environment near Whangarei; and (c) passes through seven tunnels along the North Auckland Line. KiwiRail's approach to the Proposed Plan 6. KiwiRail supports the overall intent of the Proposed Plan. It also supports the recommendations in the Section 42A Report identified in paragraph 8 of Ms Beals' evidence, as they relate to its submission.3 1 RMA Team Leader at KiwiRail. 2 For example, over 640 train movements occurred on the North Auckland Line heading in and out of Whangarei in FY17. 3 2017prp316, EvidencePRP36. 3605180 2 7. These legal submissions will address the following amendments that differ from the recommendations in the Section 42A Report: (a) Amendment to Rule C.1.1.8 to differentiate between notice requirements for minor repairs and maintenance works and other more substantive works; (b) Remove the general condition relating to historic heritage in the coastal works general conditions Rule C.1.8; (c) Amendment to Rule C.2.2.2 to include structures for regionally significant infrastructure as permitted activities in wetlands; (d) Include a new rule that provides for discharges from tunnels; and (e) Amendment to Policy D.6.1(2) relating to hard protection structures to provide for planned, as well as existing, infrastructure. 8. The amendments sought by KiwiRail are consistent with the purpose and principles of the Resource Management Act 1991 ("RMA"), give effect to the New Zealand Coastal Policy Statement ("NZCPS") and the Northland Regional Policy Statement ("RPS"), and are the most appropriate means of achieving the objectives and policies of the Proposed Plan. Amendments sought C.1.1.8 – Maintenance, repair or removal of hard protection structures 9. Rule C.1.1.8(1) requires plan users to provide the Northland Regional Council ("Council") with 10 days' notice prior to starting maintenance, repair or removal of hard protection structures within the coastal environment. In its submission,4 KiwiRail requested that the rule be amended so that the notification requirements applied only for removal work. 10. The Section 42A Report recommends that this submission be rejected,5 on the basis that prior notification should be required for all activities in order to be a permitted activity. This conclusion is based on the opinion of the Coastal Monitoring Manager that these activities often require the use of heavy machinery on foreshore areas. 11. While KiwiRail agrees that the Council should be notified of works that have the potential to have adverse effects on the environment, KiwiRail's concern, 4 Submission point 9. 5 Section 42A report – Coastal structures, page 32. 3605180 3 and the reason for its submission, is that it is sometimes necessary to carry out urgent maintenance works at the time of inspection of the structure. It is also generally more efficient to do minor works, at the time of inspection. Delaying maintenance for 10 days could create undue inefficiencies, increase cost unnecessarily, or cause a safety risk. These works may also not require heavy vehicles on foreshore areas. 12. As Ms Beals sets out in her evidence, not all maintenance and repair activities will have associated adverse effects.6 It is unnecessary, will hinder the policy direction in the plan to enable regionally significant infrastructure, and has the potential to cause adverse safety effects, if Rule C.1.1.8 is retained as notified. 13. KiwiRail's preference would be for its relief from its submission (that the notification requirements apply only to removal works) be adopted. However, should the Commissioners not find that amendment acceptable, the rule should be amended to require notification where the works will require heavy vehicles on foreshore areas, as set out at paragraph 44 of Ms Beals' evidence. C.1.8 – Coastal Works General Conditions 14. KiwiRail submitted in support in part of Rule C.1.8,7 but sought that clause 1 of this rule, relating to historic heritage, should be removed on the basis that a number of specific rules under section C.1.8 in the plan address historic heritage, and clause 1 in C.1.8 therefore results in duplication regarding historic heritage requirements, which has the potential to cause confusion. 15. The Section 42A Report is silent on this submission point, which appears to be an oversight, and no amendments are recommended to be made. In our submission, the amendment sought by KiwiRail would appropriately provide certainty as to when heritage matters are relevant to the consent process, rather than a general 'catch all' type approach. 16. The current wording of Rule C.1.8(1) has the potential to cause confusion, with resulting perverse planning outcomes. Rule C.1.8(1) should therefore be amended as set out at paragraph 48 of Ms Beals' evidence. 6 Evidence of Ms Beals at paragraph 42. 7 Submission point 16. 3605180 4 C.2.2.2 – Structures in Wetlands 17. KiwiRail supports the intent of Rule C.2.2.2 in enabling the maintenance and use of structures in or over wetlands as a permitted activity. However, in KiwiRail's submission, the wording of the rule does not enable any existing lawful structures, such as rail structures, to be maintained, used or removed. 18. KiwiRail therefore sought that the rule wording be expanded to include structures associated with regionally significant infrastructure. This submission point also does not appear to have been considered in the Section 42A Report. 19. Given the extensive length of the rail network within the region, there is a high likelihood that the rail corridor passes over a wetland at some point (the wetlands are not mapped), and therefore KiwiRail seeks that the permitted activity standards are altered, consistent with the Proposed Plan's policy direction, to reflect the ability to use and maintain structures in this environment.8 New Rule – Discharges from tunnels 20. There are seven existing tunnels on the North Auckland Line within the region. As KiwiRail explained in its submission, while a discharge from a vehicle is identified as a permitted activity,9 when the train is in a tunnel, technically the discharge comes from the end points of the tunnel, rather than the train. KiwiRail sought a new permitted activity rule to provide certainty to the community and to KiwiRail that such a discharge was also a permitted activity. 21. The Section 42A Report recommended that this submission be rejected on the basis that a discharge from a tunnel is a permitted activity under Rule C.7.2.6 'Discharges to air not specifically regulated in the plan - permitted activity', except where the discharge is occurring on trade and industrial premises.10 However, the Proposed Plan does not provide definitions for trade or industrial premises, so there is no certainty for KiwiRail that its activities will not be excluded from permitted activity Rule C.7.2.6. In addition, due to the narrow nature of rail tunnels (and the rail corridor generally), it is highly likely that there will be circumstances in which discharges extend beyond the site boundary. 8 Amendment at paragraph 53 of Ms Beals' evidence. 9 Rule C.7.2.4(7). 10 Section 42A report – Air Quality, at page 30. 3605180 5 22. The evidence of NZTA and KiwiRail expresses a shared concern relating to discharges from tunnels. The intention was to be able to provide the Commissioners with an update on discussions with the Council.11 However, the Council has not had capacity to continue these discussions following the exchange of evidence so, to date, there is no update to provide. 23. Given the lack of engagement from Council on this point, KiwiRail's concerns about the application of the discharge rules, and the subsequent requirement for a rule to specifically address discharges from tunnels, has not been addressed. The approach proposed by KiwiRail and NZTA is consistent with that taken in the Auckland Unitary Plan Air Quality provisions, which were agreed following mediation and hearings. We therefore submit that a new rule should be included, as set out in KiwiRail's submission.12 D.6.1(2) – Appropriateness of hard protection structures 24.