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IN the MATTER and in the MATTER BETWEEN and and and and Decision No. a /2002 of the Resource Management Act 1991 of References U

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IN the MATTER and in the MATTER BETWEEN and and and and Decision No. a /2002 of the Resource Management Act 1991 of References U Decision No. A /2002 IN THE MATTER of the Resource Management Act 1991 AND IN THE MATTER of references under clause 14 of the First Schedule to the Act BETWEEN CENTRAL EARTHMOVERS LTD (RMA 1489/98) AND JOE AND FAYE GOCK (RMA 1520/98) AND SELF TRUST (RMA 1597/98) AND J AND D TAM (RMA 1601/98) Referrers AND THE MANUKAU CITY COUNCIL Respondent BEFORE THE ENVIRONMENT COURT Environment Judge JES Allin (presiding) Environment Commissioner PA Catchpole HEARING at AUCKLAND on 31 July and 1, 2, 21, 22, 23, 24 August 2001 Written submissions in reply received 31 August 2001 APPEARANCES J M Savage for Central Earthmovers Limited A Dormer for Joe & Faye Gock R Bartlett for Self Trust and J & D Tam S R Brownhill and LP Hinchey for the Manukau City Council S J Berry for the Auckland Regional Council C S Heather for the Historic Places Trust INTERIM DECISION Introduction [1] This case relates to a number of references where the land is zoned Mangere-Puhinui Heritage Zone (which we sometimes refer to as “MPHZ”) in the proposed district plan. The Manukau City Council (the “Council”) and the Auckland Regional Council (the “Regional Council” or “ARC”) supports the Mangere-Puhinui Heritage Zone; the ARC was a submitter and gave notice under both sections 271A and 274. The Historic Places Trust supports the Mangere- Puhinui Heritage Zone as a section 274 participant in the Self Trust reference. [2] The four referrers seek different zoning for their land. The land in question is in the vicinity of Pukaki lagoon (which is not now actually a lagoon, but reclaimed land in pasture) and Crater Hill in the Pukaki peninsula. The relevant land is outside, but bounded by, or close to, the Metropolitan Urban Limits set out in the Auckland Regional Policy Statement. [3] The Central Earthmovers reference seeks Rural 3 zoning in respect of its land and parts of two neighbouring properties, thereby allowing a more economic transitional use of the land. In the alternative, it seeks the inclusion of its land in a much larger Rural 1 zone. [4] The Central Earthmovers reference also seeks that the Schedule 6E (Geological Features and Areas to be Protected) restriction for the “Pukaki Lagoon Tuff Ring and Crater” be reduced to 5 metres beyond the top of the escarpment of the tuff ring, so as not to restrict unnecessarily the development of the Central Earthmovers land. Land on some outside parts of the crater is owned by Central Earthmovers. The lagoon is owned by the Pukaki Maori Marae Committee, but is leased from that Committee by Central Earthmovers. [5] Initially in the hearing, Central Earthmovers did not raise an issue about zoning in relation to the Pukaki lagoon. During the hearing, Central Earthmovers asserted that its reference would provide the basis for Rural 1 zoning for the lagoon and the Gock reference would provide the basis for Mangere-Puhinui Rural Zone (which we sometimes refer to as “MPRZ”) zoning, either of which the company would be content with. 2 [6] Mr and Mrs Gock’s reference seeks to rezone their properties as well as “other properties shown in the Heritage Zone within the area bounded by the motorway and Waokauri [also referred to as Waiokauri in some documents and by some people] and Pukaki Creeks; together with any other consequence or (sic) changes that may arise from that rezoning.” [7] The Gock reference seeks that the zoning become Rural 1 or Mangere-Puhinui Rural and that is what was advanced at the hearing. The reference also seeks that the Mangere-Puhinui Heritage Zone be renamed Mangere-Puhinui Rural B zone, but this was not advanced at the hearing. [8] The relief sought by the Self Trust reference is that the Mangere-Puhinui Heritage Zone be deleted in its entirety, and that land in this zone be rezoned Mangere-Puhinui Rural (although evidence to support this wide relief was not given at the hearing). In the alternative, it seeks that the Self Trust land be rezoned from MPHZ to MPRZ. Other alternative relief in the reference seeks various amendments to provisions relating to mineral extraction, so that mineral extraction would be a discretionary activity in the MPHZ. The reference also sought the deletion of Crater Hill Tuff Ring and Crater from Schedule 6E (Geological Features and Areas to be Protected) and other related relief, which was not advanced at the hearing [9] At the hearing, counsel for Self Trust relied on the relief sought in the Gock reference to seek Rural 1 zoning as a first preference, and Mangere-Puhinui Rural zoning as a second preference for the Self Trust land. [10] Mr and Mrs Tam’s reference sought that their land at Tidal Road be zoned Business 5. As with Self Trust, at the hearing, counsel relied on the relief sought in the Gock reference and identified the preferred position of the Tams as being that their land be rezoned Rural 1 as a first preference, and Mangere-Puhinui Rural as a second preference. [11] In summary, in relation to zoning as amended during the hearing: Central Earthmovers seeks Rural 3 zoning for its land and parts of the two neighbouring properties; the other three referrers seek Rural 1 or Mangere-Puhinui Rural zoning; for the area of the Pukaki lagoon, the relief sought is Rural 1 or Mangere-Puhinui Rural zoning. [12] We deal later with the issue of whether the relief sought by the Gocks can be relied upon by Central Earthmovers, Self Trust and the Tams. Issues [13] We first describe the general location of the Mangere-Puhinui Heritage Zone; the cases for the Council, Regional Council and the Historic Places Trust; and the location, activities and concerns of the referrers. We then discuss the law and address the issues. [14] Preliminary jurisdictional issues relate to whether: the referrers are restricted to the relief sought in their respective references, or whether relief in one reference can be relied on by others; and the Central Earthmovers reference is sufficiently wide to support Rural 1 zoning for the Pukaki lagoon. [15] Another preliminary issue is the relevance of what is known as the “Eastern Access” (to the airport) agreement to resolution of the case. [16] We deal with a number of topics in determining the substantive issues of: what zoning should be applied to the relevant areas of land; and what area should be included in Schedule 6E (Geological Features and Areas to be Protected) for “Pukaki Lagoon Tuff Ring and Crater”. [17] Those topics include: does the zoning implement the objectives and policies of the proposed district plan; chapter 6 of the proposed district plan, which deals with heritage and sets out various schedules of heritage resources to be protected; geology, including the Auckland Volcanic Field, Pukaki lagoon tuff ring and crater, and Crater Hill tuff ring and crater; 4 archaeological issues; Maori cultural issues and heritage; natural character of the coastal environment; landscape and related issues; the rules in chapter 6 of the proposed plan and comparison of the rules in the relevant suggested zones; preliminary conclusion on the first step in the Wilkinson case; does the zoning meet the section 32 tests; is the zoning contrary to the Regional Policy Statement or the NZ Coastal Policy Statement; overall conclusion of whether, on balance, we are satisfied the proposal would more fully serve the purpose of the Act than would cancelling it. [18] We then deal with the area that should be included in Schedule 6E for Pukaki Lagoon Tuff Ring and Crater. General Location - Mangere-Puhinui Heritage Zone [19] All of the land under consideration in this case is in the Mangere-Puhinui Heritage Zone in the proposed district plan, but does not now comprise the whole of that zone. [20] Under the heading “Mangere-Puhinui Rural Area” and seemingly referring to both the Mangere-Puhinui Rural Zone and the Mangere-Puhinui Heritage Zone, there is an Introduction in para 17.3.1 of the proposed plan. The key points can be summarised as: the Mangere-Puhinui rural area is situated at the western extremity of the City. The area is defined by the urban limits of the City to the east and north and by the Manukau Harbour to the west and south; the area is outside the Metropolitan Urban Limits in the Auckland Regional Policy Statement; the area faces considerable pressure for urbanisation and is broken up into relatively small pockets of rural land, which are each bordered by residential or business areas. The Mangere Sewage Purification Works and the Auckland International Airport, both of which are of regional significance and importance, significantly influence the area. Further rural lands to the north of the International Airport are currently farmed and are partly encompassed by the designation for a proposed second runway (the establishment of which may be outside the life of the plan); much of the area may be considered to be within the Manukau Harbour coastal environment; there are varying patterns of land ownership and land activities, and the presence of features of ecological, heritage, cultural, or spiritual significance varies throughout the area. [21] The introduction explains that the Pukaki Road area (which is in the vicinity of the Gock and Central Earthmovers references) is generally in horticultural use, with Pukaki lagoon being a significant landscape feature with considerable spiritual significance to tangata whenua. It explains that the Pukaki area is a traditional settlement area of tangata whenua, with papakainga housing being re-established in recent years. [22] The proposed plan records that: the Mangere-Puhinui Rural Zone applies to some 1273.30 hectares, including the underlying zoning of lands designated for airport purposes; and the Mangere-Puhinui Heritage Zone applies to some 604.52 hectares, encompassing lands on the Puhinui Peninsula, Pukaki, and Otuataua and the eastern side of Puketutu Island (and we understand that the MPHZ now extends to the western side).
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