BEFORE THE CHRISTCHURCH REPLACEMENT DISTRICT PLAN INDEPENDENT HEARINGS PANEL IN THE MATTER of the Resource Management Act 1991 and the Canterbury Earthquake (Christchurch Replacement District Plan) Order 2014 AND IN THE MATTER of the Natural and Cultural Heritage Stage 3 Proposal MEMORANDUM OF COUNSEL FOR CHRISTCHURCH CITY COUNCIL IN RELATION TO DECISION 45 NATURAL AND CULTURAL HERITAGE (PART) Topic 9.3 – Historic Heritage 23 November 2016 Barristers & Solicitors M G Conway / C G Coyle Telephone: +64-4-924 3511 Facsimile: +64-4-472 6986 Email: [email protected] / [email protected] DX SX11174 PO Box 2402 WELLINGTON 28609561_7.doc MAY IT PLEASE THE PANEL: 1. This memorandum is filed on behalf of the Christchurch City Council (Council) in relation to the Minor Corrections to Decision 45: Chapter 9 Natural and Cultural Heritage (part) Topic 9.3 Historic Heritage and Decision on Appendix 9.3.7.2 dated 8 November 2016, and the filing of planning maps in relation to Chapter 9. 2. As the Panel is aware, it has a power under clause 16 of Schedule 3 of the Order in Council to make minor corrections to its decisions and proposals. For ease of reference, clause 16 states: 16 Minor corrections (1) The hearings panel may, at any time, issue an amendment to a decision to correct a minor mistake or defect in a decision of the panel. (2) This power includes the power to amend or correct a proposal, provided that the amendment or correction is made before the proposal becomes operative in accordance with clause 16 of this order. 3. The Panel discussed the scope of this power in its decision to make minor corrections to Decision 9 Temporary Activities 6A, 6B and 6C.1 4. Because the Panel's jurisdiction has been canvassed previously, we do not repeat that discussion in detail here. In summary, clause 16 of Schedule 3 of the Order in Council is similar to, but not exactly the same as, clauses 16 and 20A of Schedule 1 of the RMA. Clauses 16 and 20A of Schedule 1 of the RMA use the words "minor error" rather than "minor mistake or defect". The Environment Court in Re an application by Christchurch City Council2 said: An error is simply a mistake or inaccuracy which has crept into the plan. The obvious example is a spelling mistake or reference to a wrong paragraph number where there can be no doubt what number is intended. It is analogous to the use of the slip rule in other Court Proceedings. Thus rule 12 of the District Courts Rules 1992 make provisions for correction of 1 Decision to Make Minor Corrections to Decision on Temporary Activities, dated 22 October 2015, at paragraphs [3] to [9]. The Panel also discussed what changes of "no more than minor effect" are for the purposes of clause 13(6) in its Decision 9 Temporary Activities 6A, 6B and 6C at para [19] to [25]. 2 Re an application by Christchurch City Council [1996] NZEnvC 97. 2 28609561_7.doc a judgment which contains a clerical mistake or error arising from an accidental slip or omission. The fundamental principle applicable to the use of the slip rule is that it may only be used to correct a slip in the "expression" of a judgment not the "content". 5. The Environment Court determined a change would be within clause 16 of Schedule 1 of the RMA if "the draftsperson seeks only to clarify what is clearly intended by the document and does not in any way make a change to it which alters its meaning".3 6. The Council would be happy to provide further submissions on the Panel's jurisdiction if that would assist. 7. In the course of reviewing the minor corrections decisions the Council has identified further minor errors, shown in Attachment A. 8. Decision 51, at paragraph [249], directed the Council to provide updated planning maps for Chapter 9. Whilst preparing these planning maps the Council noted some instances where the extent of heritage settings had not been confirmed in Decision 45. Attachment B shows items where the Council respectfully requests a decision on the extent of the heritage setting from the Independent Hearings Panel. 9. Attachment C shows a merged schedule of Central City heritage items and Christchurch City and Banks Peninsula heritage items, as directed by the Panel in paragraph 46 of the Minor Corrections to Decision 45. DATED this 23st day of November 2016 __________________________________ M G Conway / C G Coyle Counsel for Christchurch City Council 3 At page 11. 3 28609561_7.doc Attachment A – Minor Corrections Corrections sought to Decision 45 [page of Amendment requested decision] Definitions Make a minor amendment in the definition of Alteration of a heritage item after i. for clarity: Pages 14 and 16 “i. …New buildings, structures or features.; and Alteration of a heritage item excludes …” Amend definition of Heritage Setting for clarity and as sought in Council’s Supplementary Closing submissions on definitions dated 2 September 2016: means an entry in Appendix 9.3.7.2 - Schedule of Significant Historic Heritage in which, together with the associated heritage item, … c. gardens, lawns, mature trees and landscaping, water features, historic landforms; access, walk and cycle ways, circulation, paths and paving; d. access, pedestrian access ways and cycle ways, circulation, paths and paving; d. e. open space; and e. f. spatial relationships Amend definition of Heritage Upgrade works for clarity: “… b. fire protection; and c. provision of access,; and 28609561_7.doc Corrections sought to Decision 45 [page of Amendment requested decision] 9.3.3 Provide capital letters for "Heritage Areas" within 9.3.3 b. ii.: Page 26 b. The planning maps identify sites that contain a heritage item and heritage setting, and heritage areas. Reference should also be made to: i. Appendix 9.3.7.2 - Schedule of Significant Historic Heritage; ii. Appendix 9.3.7.3 – Schedule of hHeritage aAreas; 9.3.3 Delete the reference to P4 in 9.3.3 i. as sought in the Minor Corrections memorandum dated 12 October, as Rule P4 relates Page 27 to scheduled heritage items not to heritage settings, and 9.3.3 i. relates only to heritage settings: Activities are permitted in heritage settings scheduled in Appendix 9.3.7.2 (subject to other rules in this Plan), except for new buildings in heritage settings (Rule 9.3.4.3 RD2) and temporary structures and signage in heritage settings (Rule 9.3.4.1 P4, P5 and P6). 9.3.3 Amend 9.3.3 k. i. and iii., and make a minor amendment to 9.3.3 m.: Page 27 k. The following exemptions apply in relation to Rule 9.3.4 – Activity Status Tables i. For the Annandale Woodlshed heritage setting (12 Starvation Gully Road) Rule 9.3.4.3 RD1 and RD2 shall not apply to the modification of, or new stockyards within, the heritage setting shown on Heritage Aerial Map 476. iii. For the Hagley Park heritage item (HID 1395) as identified on the planning maps and in Appendix 9.3.7.2, Rule 9.3.4 – Activity Status Tables shall not apply, other than to heritage items and heritage settings within Hagley Park individually scheduled in Appendix 9.3.7.2. 2 28609561_7.doc Corrections sought to Decision 45 [page of Amendment requested decision] 9.3.6.1 Amend Rule 9.3.6.1 for consistency: Page 36 e. The extent to which the works are in accordance with the principles in Policy 9.3.2.4(b), and whether the proposal: i. is supported by a conservation plan or expert heritage report; and ii. the extent to which it is consistent with the Heritage Statement of Significance and Conservation Plan and the ICOMOS New Zealand Charter for the Conservation of Places of Cultural Heritage Value (ICOMOS New Zealand Charter 2010). 9.3.7.6 Amend Appendix 9.3.7.6 – Certification of Non-Heritage Fabric for consistency: Page 52 In sub-clause 1.4 amend to "Heritage Statement of Significance" In sub-clause 2.1 amend to “Heritage Sstatement of Ssignificance” In sub-clause 2.2 add closing bracket: "The dates of site visit(s) undertaken, (which must include a visit in the period subsequent to any previous modifications of the fabric or area being assessed)." In sub-clause 2.4, insert an "'s" after heritage professional: "2.4 Confirmation that in the heritage professional's opinion, and having regard to Clauses 1 and 2…" Appendix Amendment to explanatory note to schedules to remove heritage places, shown in Attachment C and replace with 9.3.7.2 ‘scheduled historic heritage’. In addition for clarity insert ‘heritage’ before item as shown: Page 56 Explanatory note: Where heritage settings contain multiple heritage items, these have been grouped together using thicker lines in the table below and a collective name for the heritage places scheduled historic heritage is also noted. 3 28609561_7.doc Corrections sought to Decision 45 [page of Amendment requested decision] Appendix Item 1373 - Correction to the Godley Head battery listing to remove "and setting" 9.3.7.2 Item 1179 – Correction to the Oxford St Lyttelton cobblestone gutters and setting address There are a number of other corrections to planning map references, shown in Attachment C in purple text. Appendix Amend incorrect reference to Chapter 14: 9.3.7.4.1 Page 56 Chapter Zone Activity Type of Exemption Chapter 14 Residential New 14.9.2.1 P1224b, Place of Scale of activity Residential Neighbourhood P12d, P12f(i) assembly Residential Zones coherence Schedule 2 Amend incorrect address of St Peter’s Church Appendix St Peter’s 9.3.7.2 Church Page 71 24 Main Part of Upper St Peter's 355 193 Highly 19 30; South 25, 25A Riccarton Church signific H18 Road Yaldhurst Graveyard and ant Road Setting 2524 24 Main Part of Upper St Peter's 1285 193 Highly