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).

[23] The introduction does not refer to Crater Hill, but it (like Pukaki lagoon) is a Geological Feature and Area protected as a heritage resource in Schedule 6E in the proposed plan. Crater Hill is to the east of Pukaki lagoon.

[24] The Tam and Self Trust lands are in the vicinity of Crater Hill.

[25] Having given a general overview of the MPHZ zone, we turn now to outline the case of the Council, the Regional Council and the Historic Places Trust. We then deal with the referrers and discuss the specific areas encompassed by the individual references, the use made of the land, and the concerns expressed by the referrers.

Cases for the Council, Regional Council and Historic Places Trust

[26] The Council submitted that the basis for applying the Mangere-Puhinui Heritage Zone is related to the presence of the area’s significant natural and/or cultural heritage values such as: archaeological heritage sites; the retention of vistas and open landscapes; the proximity of the zone to the urban area and coastal margins; and the relationship of the land to maraes and tangata whenua management areas.

[27] It was submitted that the MPHZ also relates to recognising the potential effects from the airport and proposed second runway and the Mangere Wastewater Treatment Plant.

[28] The Council also referred to the relevance of the Eastern Access agreement (discussed later).

[29] The main elements in the Council’s case are that: the zone is appropriate in terms of protecting relevant archaeological, heritage and significant natural landscapes; the zone is materially different from the Mangere-Puhinui Rural Zone so as to be necessary in achieving its end. The differences are that the MPRZ is considered to be generally less sensitive to landscape modification than the MPHZ; there are not generally the same concentrations of significance in natural and cultural heritage features in the MPRZ as in the MPHZ; there is proximity to the urban area and pressure for business activity development; and the MPHZ is considered to have high landscape values and significant natural and/or cultural heritage values; the zoning is the only zone which will protect the Pukaki and Waokauri Creeks environment from inappropriate use and development in recognition of the historical, cultural and spiritual values of tangata whenua.

7 [30] Witnesses called by the Council were: Mr SA Hartley, a resource management consultant; Mr LO Kermode, a geologist specialising in the study of the geology and geomorphology (landforms) of the volcanoes of the Auckland urban area; Dr RE Clough, an archaeologist with experience in cultural heritage management; and Ms M Wilson, who grew up in the Pukaki Marae community and whose evidence represented a number of ancestral proprietor organisations.

[31] The ARC supports the Mangere-Puhinui Heritage Zone. In summary, it submits that the MPHZ: promotes the purpose of the Act. The MPHZ represents an appropriate and effective resource management approach to implement the objectives and policies of the operative Auckland Regional Policy Statement and the proposed Auckland Regional Plan: Coastal (“proposed regional coastal plan”), both of which reflect the purpose of the Act. is necessary and the most appropriate means of implementation. Alternative methods of protection, such as through a heritage order, would be too specific. It is the matrix of the features and open spaces surrounding them that make this area significant; allows the Council to exercise control over the land through the resource consent process, in accordance with objectives and policies of the regional and district plans; is not overly stringent, and strikes a balance between the need for protection of the natural features and the rights of landowners.

[32] The ARC adopted the evidence of the witnesses for the Council and called Mr SK Brown, a landscape architect who also has a town planning qualification.

[33] The Historic Places Trust was a section 274 party supporting the MPHZ only in relation to the Self Trust reference, but said that this should not be construed by the Court to diminish the significance of the other areas. It submitted that the Resource Management Act is better suited to examination and management of broad heritage and cultural issues than the more mechanistic provisions of section 11 and 12 of the Historic Places Act. More cohesive protection can be provided by the Resource Management Act than the Historic Places Act.

Location, activities, and concerns of the referrers

(a) Central Earthmovers Ltd

[34] Central Earthmovers Ltd is a family company owned by Mr RS Prangley and his son (a veterinarian surgeon living in Whitford). Mr RS Prangley gave evidence. Mr RJP Davies, an architect and planner, was called by Central Earthmovers and the Gocks.

[35] Central Earthmovers owns approximately 25 hectares of freehold land to the north-west, north and east of the Pukaki lagoon. The land surrounding the lagoon has been owned by the Prangley family since 1944, with Mr Prangley (through Central Earthmovers) owning the land since 1966. Mr Prangley has lived at 70 Pukaki Road for more than 40 years.

[36] The Central Earthmovers reference also includes parts of two adjoining properties comprising approximately 24 hectares, to the east of the Central Earthmovers land and the Pukaki lagoon, and owned by neighbours. For convenience, in referring to issues raised in the reference, we include this land when we refer to Central Earthmovers land.

[37] Central Earthmovers wishes these areas of approximately 49 hectares to be zoned Rural 3 (or Rural 1).

[38] Central Earthmovers also leases two properties (the Pukaki lagoon and access to it) of approximately 37 hectares. Since 1993, these two properties have been owned by the Pukaki Maori Marae Committee. The Prangleys have a long leasing association with these properties, predating the time when the Pukaki Maori Marae Committee became owner of the properties. At the hearing, Central Earthmovers sought to rely on its reference for the lagoon to be rezoned Rural 1 and the Gocks’ reference for the lagoon to be rezoned Mangere-Puhinui Rural Zone.

9 [39] The north-west and northern parts of the Central Earthmovers land are bounded by the Metropolitan Urban Limits set out in the Auckland Regional Policy Statement. Land on the urban side of that boundary is zoned Main Residential. A Business 5 zone is to the east of the Central Earthmovers land. Part of the land is also bounded at the south-east by Waokauri Creek.

[40] The “Pukaki Lagoon Tuff Ring and Crater” is identified in schedule 6E of the proposed plan, which deals with Geological Features and Areas to be Protected. The protection area extends outward approximately 300 metres in most places beyond the rim of the escarpment of the lagoon. The area protected includes land owned by the Pukaki Maori Marae Committee as well as land owned by Central Earthmovers.

[41] Although referred to variously as Pukaki Crater or Pukaki lagoon, as noted earlier, the area in question is not a water body but a reclaimed area. It is fenced and carries livestock.

[42] Mr Prangley explained that, over the years, he has been a farmer and has at various times owned and operated other businesses.

[43] In respect of its contracting operations, Central Earthmovers was initially involved in agricultural contracting (cultivating, haymaking, etc) and earthmoving involving the use of small bulldozers; with the airport and increasing residential subdivision nearby, these operations ceased being worthwhile. In later years, Central Earthmovers has operated, in part, as a quarry drilling and blasting contractor and as an earthmoving and agricultural machinery dealer.

[44] Farming operations are increasingly difficult as Mr Prangley’s health has deteriorated somewhat and the returns are such that he cannot afford to employ a farmhand. Mr Prangley, who is 74, has been advised by doctors to give up active farming.

[45] Mr Prangley’s evidence (which cross-examination did not succeed in challenging) is that the land has no future as a farm because: it has become surrounded by urban development with the expansion of Manukau City and is cut off from rural services. Urban development has meant extensive sheep and lamb losses caused by dog attacks. It is impossible to run sheep on the property;

10 cattle are the only animals that can be run on the property but the farm is too small to be economic as a beef operation (and dairy farming ceased to be viable some years ago). His neighbours have given up farming and offered him free grazing, but the farm is still uneconomic to run; numerous attempts have been made to diversify activities; the farm land is unusually sensitive to weather. The lagoon area is wet. In the higher land, the underlying cement-like tuff dries out in summer, but prevents proper drainage in the winter, causing boggy soils.

[46] The case for Central Earthmovers, in summary, is that the MPHZ: is not necessary in achieving the purpose of the Act;

Central Earthmovers land; does not enable people and communities to provide for their social, economic and cultural wellbeing; does not especially advance the Maori issues identified in Part II of the Act; has not been preceded by a proper evaluation of the actual consequences of the zone; treats the Central Earthmovers land as a public resource to be “frozen” at the expense of the current landowners; does not facilitate public access to either the crater or the margins of the creeks; and will hinder and prevent the efficient use and development of the land, whereas Rural 3 zoning would positively promote the purpose of the Act.

(b) J and F Gock

[47] Mr J Gock gave evidence. As already noted, Mr RJP Davies was also called.

[48] As discussed earlier, the Gocks’ reference includes: their properties; and other properties in the MPHZ bounded by the motorway and the Waokauri and Pukaki Creeks, which would include the Tam, Self Trust and Central Earthmovers properties (and the Pukaki lagoon, leased by Central Earthmovers).

11 [49] Mr and Mrs Gock (and their family trusts) own various parcels of land, generally to the south of the Central Earthmovers land (and to the south of the area identified as the “Pukaki Lagoon Tuff Ring and Crater” in schedule 6E of the proposed district plan).

[50] They first leased land in 1952 and started their market gardening business. Over the years, they have assembled their current holding (approximately 58 hectares), all of which is in the Mangere-Puhinui Heritage Zone in the proposed district plan.

[51] The land owned by the Gocks encompasses land on both sides of the southern end of Pukaki Road. The Gock land is also bounded by Waokauri and Pukaki Creeks.

[52] Some of the land adjoins both sides of land owned by the Pukaki Maori Marae Committee and used for papakainga and a marae.

[53] The Gocks purchased a number of properties from Maori landowners in 1963 and 1966. In 1977, Mr Gock bought the property to the east of the papakainga/marae land (through another owner who had purchased it the same day from the Maori Trustee).

[54] The Gocks’ land is used almost entirely for growing vegetables and some glasshouse grapes. It is broken up into smaller areas by shelterbelts and Mr Gock deposed that the original holding has been rotary hoed twice a year throughout the time his family has owned it; that has also occurred with the other properties since the Gocks acquired them. In addition, some of the properties were used for cropping prior to their purchase by the Gocks.

[55] The Gocks have a long association with the area. Mr Gock is 73 and his wife is a little younger. None of their children has any interest in continuing their market gardening operation when the Gocks retire.

[56] The Gocks are concerned to make sure that whatever price they eventually sell the land for is not unfairly reduced because it has an unusual zoning. They are concerned that a “heritage” zoning will make it harder to change its use at some time in the future. In terms of any perception

12 of stigma of zoning, Mr Dormer submitted that the correct approach is not to consider “why doesn’t the owner like the zoning”, but to consider whether the zoning is appropriate. We agree.

[57] In summary, the case for the Gocks is that: their lands do not warrant any of the special protections for which the MPHZ may have been designed; their lands have been inappropriately zoned; they are dismayed that “understandings” reached in the Eastern Access agreement (which we discuss later), without their involvement, affect the zoning of their land; there is no point in a zone which prevents them (or subsequent owners) doing that for which the land is not suitable in any event; and the rules of the MPHZ (as compared with other zoning and in particular the MPRZ) would not serve to protect the land from inappropriate development.

[58] Mr Dormer stated at the hearing that the Gocks would be content with Rural 1 or Mangere- Puhinui Rural zoning. While Rural 1 was the zoning preferred by their planner, if the Court were to see fit to maintain a degree of consistency throughout the Mangere-Puhinui area by zoning the land MPRZ rather than Rural 1, the Gocks would be similarly content.

(c) J and D Tam

[59] Mr DJ Macpherson, senior planner and resource management consultant, was called by Mr and Mrs Tam and Self Trust.

[60] The Metropolitan Urban Limits in the Auckland RPS are on the west, north, and east side of the Tam property. To the south of the Tam property is the Self Trust property and Crater Hill.

[61] The Tam property is 14.8 hectares of slightly sloping land. It is on the western side of Tidal Road and is separated from the Self Trust property by a largely unformed extension to Portage Road which leads to the head of the Waokauri Creek.

13 [62] To the north and west of the Tam property is land zoned Business 5. That land is largely built on, particularly to the north. Across Tidal Road, to the north-east of the Tam property, is an established area of housing zoned Main Residential. The whole of the Tam property is zoned Mangere-Puhinui Heritage Zone in the proposed district plan.

[63] The land is used for market gardening.

(d) Self Trust

[64] Mr JO Self gave evidence. As already noted, Mr DJ Macpherson was called.

[65] The Self Trust property of about 103 hectares lies between the eastern forks of the Waokauri Creek and State Highway 20.

[66] In the proposed district plan, the whole of the Self Trust property is zoned Mangere-Puhinui Heritage Zone. “Crater Hill Tuff Ring and Crater”, “Selfs (sic) Lava Cave” and “Underground Press Lava Cave” are each identified in Schedule 6E of the proposed plan (Geological Features and Areas to be Protected).

[67] Crater Lake, in the middle of Crater Hill, is not owned by the Selfs and is designated by Manukau City Council as Water Reserve. The evidence was that the water is not used for that purpose but is at times used as wash water for a brewery at Papatoetoe.

[68] Mr Self is the third generation of Selfs to own the farm and quarry property. The Self family has been in that location for 71 years.

[69] Mr Self’s evidence was that the farm has always been actively worked, variously in market gardening, horticulture, stud Angus cattle and Southdown sheep breeding. More recently, there has been cattle fattening. Mr Self deposed that the property is too small to be an economic farming unit. The soils are not conducive to modern cultivation and harvesting methods due to the many rocks and stones in the topsoil. Mr Self referred to issues with dogs and grazing sheep.

14 [70] He also deposed that the quarry has been worked since 1876. Currently, there is a third party operator at the quarry. In the 125 years that the quarry has existed, approximately 2 million cubic metres of material have been removed. Mr Self’s evidence was that an estimated 7 million cubic metres of quarriable material remains. If it were not for the quarry, the farm would not have been able to sustain the losses incurred.

[71] There were different views expressed about the status of the existing quarry operations and authority from the Historic Places Trust, but we do not need to decide that issue.

(e) Cases for the Tams and Self Trust

[72] In summary, the cases for the Tams and Self Trust are that: they were not parties to the Eastern Access agreement and that agreement, rather than a proper section 32 analysis with supporting material and analysis, seems to have been the basis for the rezoning of their land as MPHZ (it having been Rural 1 in the transitional district plan); the effect of the MPHZ is to require the Tams and the Self Trust to maintain, at their expense, a de facto scenic reserve; if the cones and coastline merit protection indefinitely, that is a community responsibility; it has not been possible to ascertain why the heritage order provisions of the Act have not been used; the individual land features are not of regional significance; it is contrary to the principles of sustainable management to suggest that land that has been lived on by previous generations (e.g. shown by the presence of middens) acquires a mystique that requires it to be taken out of circulation for future generations. Respecting past associations with the land does not mean doing nothing with it; the Self Trust property is not a viable farm and there is no justification for a heritage zoning of the quarried part of the site; the Tam property is some distance from the volcanic cone on the Self Trust property, is physically and visually separated, and abuts industrial activities; and

15 the suggestion of the Tam property being a view shaft from Tidal Road and Gee Place to Crater Hill is not referred to in the proposed district plan and, in any event, glasshouses, which are a permitted activity, do not support the view shaft theory; as will be recalled, at the hearing they sought Rural 1 zoning or MPRZ for their properties.

The law - general approach

[73] There was little dispute about the relevant law. The real dispute relates to what, after applying the relevant law, the zoning outcome should be for the relevant areas.

[74] The relevant statutory provisions include Part II and section 74 (and through it, sections 31 and 32) and sections 75 and 76.

[75] As to the general approach to follow, counsel for the ARC referred to the often-cited passage in Nugent Consultants Ltd v Auckland City Council1 as to the approach to considering rules in plans:

. . . a rule in a proposed district plan has to be necessary in achieving the purpose of the Act, being the sustainable management of natural and physical resources (as those terms are defined); it has to assist the territorial authority to carry out its function of control of actual or potential effects of the use, development or protection of land in order to achieve the purpose of the Act; it has to be the most appropriate means of exercising that function; and it has to have a purpose of achieving the objectives and policies of the plan.”

[76] He also referred to Wilkinson v Hurunui District Counci12, where the Court identified a slightly different approach, putting the objectives and policies earlier into the evaluation process. In that case, the Court identified the issues (at paragraph 16) as whether the zoning:

1 [1996] NZRMA 481,484. 2 Environment Court Decision C50/2000.

16 “(1) accords with Part II of the Act; achieves integrated management of the effects of the use, development or protection of the land; and implements the objectives or policies of the proposed plan;

(2) meets the section 32 tests . . .; and

(3) satisfies the ultimate issue as to whether “on balance we are satisfied that implementing the proposal would more fully serve the statutory purpose than would cancelling it”.”

[77] Mr Berry submitted that, in this case, the Court should adopt a similar approach to that adopted in Wilkinson3. There was no dissent, so we have done that.

[78] We also note that a district plan must not be inconsistent with the NZ coastal policy statement or the regional policy statement4.

[79] We have also considered the presumption implied by section 9(1): rules in district plans restrict land use activities that would otherwise not be restricted. That presumption is different from that implied by section 11, which is that subdivision is not permitted unless it is expressly allowed by a rule (or a resource consent).

[80] Matters from section 6 (matters of national importance) identified to us as relevant are: the preservation of the natural character of the coastal environment (including the coastal marine area) and its protection from inappropriate subdivision, use and development (section 6(a)); the protection of outstanding natural features and landscapes from inappropriate subdivision, use, and development (section 6(b)); the protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna (section 6(c)), although the relevance of these aspects was not explained;

See also Suburban Estates Ltd v Christchurch City Council Environment Court Decision C217/2001. 4 Section,75(2). 17 the maintenance and enhancement of public access to and along the coastal marine area (section 6(d)); the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga (section 6(e)).

[81] Matters from section 7 (other matters) identified to us as relevant are: kaitiakitanga (section 7(a)); the ethic of stewardship (section 7(aa)); the efficient use and development of natural and physical resources (section 7(b)); the maintenance and enhancement of amenity values (section 7(c)); intrinsic values of ecosystems (section 7(d)), but while this was identified by the Council, its relevance was not explained; recognition and protection of the heritage values of sites, places or areas (section 769); maintenance and enhancement of the quality of the environment (section 7(f)); any finite characteristics of natural and physical resources (section 7(g)).

[82] Section 8, taking into account the principles of the Treaty of Waitangi, is also relevant.

[83] We deal with these legal matters in the context of the substantive topics in this decision.

[84] There was agreement that no party has an onus of proof and that there is no presumption that the Council’s decision is necessarily appropriate or correct.

Jurisdictional issues regarding relief sought

[85] The Council’s opening legal submissions submitted that the relief sought by the referrers is restricted to the zoning sought as relief in their respective notices of reference.

[86] Mr Dormer drew to the Court’s attention that the Gocks’ reference applies to all the land of the four referrers. He submitted that the Court has jurisdiction, by virtue of the Gock reference,

18 to zone all or any of the lands either Rural 1 or MPRZ, whether the other owners had sought those zonings or not.

[87] Mr Bartlett accepted the ARC submission about the risk of creating a “miscellany of zonings” in the area with the range of zonings sought in the various references. He relied on the relief in the Gock reference to suggest alternative zoning from that which had been sought in the references of the Tams and Self Trust.

[88] In relation to the Pukaki lagoon, counsel for Central Earthmovers also sought to rely on the Gock reference for MPRZ zoning for the lagoon. Mr Savage asserted that the Central Earthmovers reference could be relied on for Rural 1 zoning for Pukaki lagoon. That submission was not challenged. However, it is not clear to us that the relief sought in that reference is sufficiently wide to include Rural 1 zoning for the lagoon area. In the relief sought, the reference referred to the Central Earthmovers’ land being included in a much larger Rural 1 zone. We do not need to decide that issue, because the Gocks’ reference is sufficiently wide for Rural 1 or MPRZ zoning of the Pukaki lagoon.

[89] In its reply, the Council submitted that it would be inappropriate to grant relief to a referrer who had not expressly sought that zoning for land under its ownership.

[90] However, there is no need for a reference to relate only to land owned by a referrer.

[91] We hold that the relief sought in the Gocks’ reference, and the areas referred to, are wide enough to provide jurisdiction to the Court to decide if Rural 1 or MPRZ zoning is appropriate for the Pukaki lagoon, and the Tam and Self Trust properties (Self Trust having also sought MPRZ in its reference), if we conclude that the relief is appropriate.

Eastern Access agreement

[92] There was a considerable amount of comment about the existence of, and relevance of, what was called the “Eastern Access” agreement. [93] Mr Hartley explained that the presence of the Mangere-Puhinui zones in the proposed district plan has part of its origins in planning and development issues relating to the construction of the Eastern Access to the Auckland International Airport. The Eastern Access project involved activities some distance away from the land included in these references. To settle opposition to the Eastern Access project, there was an agreement which resulted in a consent order from the Planning Tribunal.

[94] The parties to the Eastern Access agreement included the Auckland International Airport Limited, the Manukau City Council and the Pukaki Maori Marae Committee.

[95] The agreement (clause 7) stated that the Manukau City Council had agreed to initiate a variation to its district scheme review with a view to:

“(a) recognising the need to protect and ensuring the protection of the Pukaki Marae environs. . . (d) using its powers under the Resource Management Act to prohibit urban development and development that has urban characteristics (including but not limited to characteristics of an industrial or commercial nature). . .”

[96] The variation was notified and later withdrawn, seemingly because the Council considered the techniques employed were too restrictive on owners and would not achieve the desired outcomes.

[97] The proposed district plan evolved from that situation.

[98] None of the referrers was a party to the Eastern Access agreement. There was criticism that the Council had relied on the Eastern Access agreement as a reason for promoting the zoning on the referrers’ properties, without involving, or consulting with, the referrers.

[99] We accept, and find, that the referrers would not have been aware that settlement of the Eastern Access issues might result in restrictions on their properties. They cannot therefore be criticised for failing to participate in those proceedings to protect their interests.

20 [100] In summary, the Council’s submissions in reply stated that: the Council’s position is that it is relevant to have regard to the “understandings” reached in the Eastern Access agreement as the understandings are important in terms of having agreed values and concepts of management in the area; some of the legal submissions misconstrue the acceptance of the parties to that consent order of the need to ensure the protection of the Pukaki Marae environs through the statutory planning process; and the Council did not bind itself in such a way as to predetermine its future decisions.

[101] While we accept that the Council did not bind itself to predetermine future decisions, the difficulty is that: the Council relied on the Eastern Access agreement, and continues to rely on it, as one of the reasons in support of its decision which is the subject of these references; the “understandings” and agreed values and concepts of management in the area, and the acceptance of the need to protect the Pukaki Marae environs through the statutory planning process, were achieved without including the persons whose properties might be affected, including the referrers in this case.

[102] Accordingly, while we have taken the Eastern Access agreement into account as background information, we do not rely on it as a reason in favour of the zoning advanced by the Council for these properties. We rely on the merits to decide what zoning is appropriate.

First step of Wilkinson case

[103] We turn now to deal with substantive matters. We begin by considering the first step identified in the Wilkinson case, i.e. whether the zoning accords with Part II of the Act; achieves integrated management of the effects of the use, development or protection of the land; and implements the objectives or policies of the proposed plan.

21 Does the zoning implement the objectives and policies of the proposed district plan?

[104] The proposed district plan5 explains that the rural part of Manukau City comprises two main areas. The area in the west of the City is the Mangere-Puhinui rural area (dealt with in chapter 17); that includes the area subject to these references. The other and much larger rural area is in the eastern part of the City; the Rural 1 zone comprises most of that eastern rural area6.

[105] We note the Council’s decision to zone the western rural area Mangere-Puhinui (Rural or Heritage) and the eastern area Rural 1. We are conscious that inserting Rural 1 into the Mangere- Puhinui rural area would probably require some revisions of the explanatory provisions of the plan. However, the Gocks’ reference sought consequential relief that might be necessary, so we conclude that if revisions are necessary, there is the ability to make the changes.

[106] All of the zonings sought by the referrers at the hearing are rural zonings, with rural objectives and policies. While we have considered the objectives and policies of the zones, we did not find them particularly helpful in deciding the references. The objectives and policies included the range of objectives and policies that one might expect in a rural area, and did not really assist in deciding which rural zoning should apply.

[107] The objectives and policies of the Mangere-Puhinui Heritage Zone and the Mangere- Puhinui Rural Zone are the same. So, considering the objectives and policies does not progress resolution of the references where there is a choice between two zones with the same objectives and policies.

[108] The objectives and policies of the Rural 1 and Rural 3 zones are also the same. There are descriptions, which explain the differences between the zones.

[109] Section 12.9.1 provides a description of the Rural 1 zone, which is the general rural zone of the City.

5 Section 12.1.2. 6 Section 12.6.1.1. 22 [110] The Rural 3 zone is a “more intensive [more intensive than Rural 2, which is a countryside living zone particularly aimed at part-time farming] countryside living zone on the edge of the metropolitan area providing a transition between the urban and rural areas”7.

[111] Section 12.9.3 describes the Rural 3 zone as a “. . . low density countryside living zone on the urban fringe...The range of activities is limited to minimise conflicts with the principal countryside living activity of the zone and to protect the amenity values, landscape quality and semi-rural character of the area.”

[112] In section 17.3.9, there is a one-page description and explanation of the MPRZ and MPHZ. The differences between the zones are explained to a limited extent.

[113] The comment about the MPRZ in 17.3.9.1 is:

“The intention of the Mangere-Puhinui zone [presumably the MPRZ] is that it will protect the rural character of the Mangere-Puhinui area. The zone is also intended to avoid adverse effects on amenity and landscape values, although the area concerned is generally less sensitive to landscape modification than the more sensitive area identified by the Mangere-Puhinui Heritage Zone . . . The area also does not generally have a high concentration of significant natural and cultural heritage features.

The provisions of the Mangere-Puhinui Rural zone are designed to protect the resources of the area from the potentially significant adverse effects of development. . .”

[114] The comment about the MPHZ in 17.3.9.2 is that it:

“. . . encompasses those rural areas which, in addition to the general values of the Mangere-Puhinui area of soils generally of high quality, have high landscape values, and significant natural and/or cultural heritage values. The areas identified are . . . the Crater Hill area, the Pukaki area, . . .”

7 Section 12.6.1.1.

23 [115] The statement about the MPHZ also notes that the zone seeks in particular to signal that various urban activities are unlikely to meet the outcomes sought for the area. However, since both the MPHZ and the MPRZ provide for rural activities, rather than urban activities, we conclude that the statement does not assist much.

[116] So, the description in section 17.3.9 seems to identify high landscape values and significant natural and/or cultural heritage values as the difference between the MPHZ and the MPRZ.

[117] We deal next with heritage and the relevant schedules in the proposed district plan. We then deal with geology, archaeology, Maori cultural issues and heritage, natural character of the coastal environment, and then landscape. After dealing with those topics, we compare the activity status of the various zonings sought, and set out our preliminary conclusions on the first step in the Wilkinson approach.

Chapter 6 proposed district plan - heritage and schedules

[118] Chapter 6 of the proposed district plan deals with heritage. There are objectives and policies advancing heritage matters. There are rules in that chapter relating to scheduled heritage resources.

[119] There are schedules that identify various heritage resources to be protected. Relevant to this hearing are geological features and areas (schedule 6E), waahi tapu (schedule 6F), and archaeological sites (schedule 6G).

[120] Schedule 6E identifies (relevantly) as geological features and areas: Pukaki Lagoon Tuff Ring and Crater; Crater Hill Tuff Ring and Crater; Underground Press Lava Cave; and Selfs Lava Cave.

24 [121] The criterion for scheduling each of these is “Scientific/Educational Importance”. It is relevant to note that other criteria that could have been applied for scheduling geological features8, but were not, are “Visual Appeal” and “Historic and Cultural Importance”. For example, Mangere Mountain Scoria Cone, not in the area of these references, has “Scientific/Educational Importance”, “Visual Appeal” and “Historic/Cultural Importance” as criteria for scheduling. We infer that Visual Appeal and Historic and Cultural Importance have been specifically omitted from the four geological features identified in the area of the references.

[122] As already noted, the Central Earthmovers reference seeks that the Schedule 6E area identified for the Pukaki Lagoon Tuff Ring and Crater be restricted to extend only 5 metres beyond the top of the escarpment of the tuff ring. Currently, it extends approximately 300 metres beyond the escarpment.

[123] The area identified for Crater Hill Tuff Ring and Crater, Underground Press Lava Cave and Selfs Lava Cave includes some of the Self Trust land.

[124] There is no scheduled geological feature or area in Schedule 6E identified on land of the Gocks or Tams.

[125] In schedule 6F, which deals with Waahi Tapu to be Protected, the only waahi tapu identified near the area of the references is an urupa at the Pukaki Marae (that land is not included in the references).

[126] No archaeological sites are identified in schedule 6G for the referrers’ properties.

Geology

[127] Mr Kermode was the only geologist who gave evidence. Apart from comments he made about planning issues, his evidence was not generally in dispute.

[128] Mr Kermode described the Auckland volcanic field and discussed the Pukaki lagoon tuff ring and crater and the Crater Hill tuff ring and crater and associated features.

8 See Appendix 6A: Evaluation Criteria of the propose district plan, section 4 - Geological Features. (a) Auckland Volcanic Field

[129] Mr Kermode said that there are five young (Quaternary) basalt volcanic fields in New Zealand and that the Auckland Field is the youngest. He produced maps showing the area of the Auckland Volcanic Field, in which quite extensive volcanic remnants occur. The maps showed an area of approximately 20 x 30 km in which extensive areas are covered by tuff and lapilli, tuff ring rims, scoria cones, scoria cones with craters and lava flow.

[130] The Auckland Volcanic Field was active 150,000 to 600 years ago and contains 48 volcanic centres originally with approximately 38 scoria cones and 19 tuff rings and explosion craters. Because it is the youngest basalt volcanic field, it contains the majority of the best-preserved and least-eroded basalt volcanic landforms in New Zealand. However, as they are located in New Zealand’s largest city, the landfonns of the Auckland Volcanic Field have suffered considerable damage and loss from quarrying, reclamation, road-building, subdivision and development. Very few volcanic centres have been unaffected and almost every scoria cone in the area has had some

[131] Damage has also occurred to the volcanic features in the southern part of the Auckland Volcanic Field, in Manukau City.

[132] Mr Kermode deposed that virtually all of the remaining volcanic landforms in the North Shore and Auckland City (apart from the subdivisions on their slopes) are now protected as reserves. By contrast, in Manukau City only 30% of the volcanic centres are protected as reserves. No reserves protect the features in the area of the references.

(b) Pukaki lagoon tuff ring and crater

[133] Mr Kermode’s evidence described the Pukaki lagoon tuff ring and crater, which possesses: a well-defined crater and large surrounding tuff ring of classic shape; and a simple landform and eruptive history, which can be contrasted with the complex history of Crater Hill.

26 [134] Pukaki lagoon has been reclaimed from its original intertidal floor and minor quarrying has taken place on the tuff ring. There are houses along nearly half of the tuff ring crest.

[135] Mr Kermode identified the significance of Pukaki lagoon tuff ring and crater. It: is one of the two best remaining tuff rings and explosion craters in Manukau City (the other being Crater Hill). There is minimal housing development on the tuff ring and it has suffered very little from quarrying or other earthworks; has an unusually deep and well-defined explosion crater; is rated as of national significance in the NZ Geopreservation Inventory because of its low level of modification and its landform definition; is described in the Auckland Regional Policy Statement as “an excellent example of a circular explosion crater”; is listed as one of ten sites as high priority for action to improve protected status in the Auckland Regional Conservation Strategy.

[136] We note that “Pukaki Lagoon” is identified, and described, in Appendix B of the Auckland Regional Policy Statement, which deals with Significant Natural Heritage Areas and Values.

[137] Mr Kermode concluded that should further subdivision or development be permitted anywhere inside the crater (i.e. on the inner slopes of the tuff ring) a great deal of its aesthetic values will be lost.

(c) Crater Hill tuff ring and crater

[138] Mr Kermode’s evidence was that quarrying has helped to decipher the eruptive history of the Crater Hill site and that the following have occurred at Crater Hill: two major explosive (phreatomagmatic) eruptions; two vigorous lava fountaining episodes; and a minor explosive magmatic eruption which produced the scoria cone.

27 [139] Mr Kermode explained in detail the observable features of the Crater Hill site, which include: an unusual crateral hollow, now bisected by the motorway; an ephemeral lakelet; and rare, circumferentially-oriented lava caves (these are identified separately in Schedule 6E of the proposed district plan). In New Zealand, lava caves are only known within the Auckland Volcanic Field and all occur within lava flows, except those at Crater Hill, which occur within the circumferential remnants of a withdrawn crater lake of lava.

[140] Mr Kermode gave his opinion that Crater Hill is the best preserved and most clearly seen of the only two tuff rings known in New Zealand to have evidence of a lava lake well up inside the crater (the other is Three Kings). Crater Hill is unique in New Zealand as there is evidence that the lava lake later withdrew down the vent.

[141] Crater Hill’s tuff ring and explosion crater are classified as being of national significance in the New Zealand Geopreservation Inventory. The lava caves are classified as being of national significance in the Geopreservation Inventory. Crater Hill comprises 2 of 10 sites listed as high priority for action to improve protected status in the Auckland Regional Conservation Strategy.

[142] Mr Kermode deposed that the exposures caused by the motorway and quarry cuttings, and which show evidence of an unusual eruption history, are of scientific and educational significance.

[143] Despite the loss of its small Scoria cone and about 15% of its tuff ring, Mr Kermode’s opinion is that Crater Hill still retains most of its landform integrity.

[144] Like Pukaki lagoon, “Crater Hill” is identified, and described, in Appendix B of the Auckland Regional Policy Statement, which deals with Significant Natural Heritage Areas and Values. The description states that Crater Hill is considered to be of national importance.

28 [145] While Mr Kermode made various comments about the need for particular planning provisions, he is not a planner. It became apparent in cross-examination that he did not have an accurate understanding of the planning issues. We therefore do not give any weight to his comments on planning.

[146] Mr Kermode did not specifically address the referrers’ properties.

[147] When cross-examined about the geological features of value on the Tam property. Mr Kermode responded that because the Tam property is used for market gardening, it provides a view shaft from Tidal Road. He accepted that this view shaft is not provided for in the proposed district plan.

[148] As already noted, schedule 6E of the proposed district plan does not identify any geological features and areas to be protected on either the Gock land or the Tam land.

Archaeological issues

[149] Dr Clough’s evidence described the results of his search of the ARC’s Cultural Heritage Inventory, which includes all sites recorded on the New Zealand Archaeological Association’s regional site file. His did not visit the properties. His evidence did not report his visit to the Gock property; this matter was dealt with during cross-examination.

[150] Dr RJ McGovern-Wilson, Senior Archaeologist of the Historic Places Trust was called by the Trust, in relation to its participation in the Self Trust reference. He read evidence that had been prepared by Dr SH Bedford. Dr McGovern-Wilson said that he had assisted in the preparation of the “submission” and could answer questions on it, but he had not visited any of the sites himself.

[151] Dr Clough stated that the area of the Mangere-Puhinui Heritage Zone consists of approximately 397.91 hectares of land bounded by the Pukaki and Waokauri Creeks, Massey Road, Tidal Road, State Highway 20 and Puhinui Road (excluding 188.2 hectares at Puketutu Island and 15.1 hectares at the Otuataua Stonefields).

29 [152] His search of the ARC’s Cultural Heritage Inventory revealed approximately 140 archaeological sites within the boundaries of the Mangere-Puhinui Heritage Zone. Only approximately half the area had been the subject of intensive archaeological survey, which suggested to Dr Clough that the number of existing sites could be significantly greater.

[153] In terms of general comments, Dr Clough stated that: the recorded sites included pa and kainga or villages - settlement sites and numerous sites associated with settlement such as burial, gardening areas, midden and terraces (we note that a significant number of the sites are middens); the spread of archaeological sites supports historic information that this was an area of pre-European and 19th century occupation; Maori settlement of the area is still present in the Pukaki Marae.

[154] Dr Clough deposed that overall the archaeological heritage values of the area are focussed on the coastal margins, and volcanic remnants, although it is likely that the hinterland was used for gardening in the past as it is today.

[155] Dr Clough provided a diagram marking with dots the location of archaeological sites in some areas. However, he did not identify which type of archaeological site occurred on which of the referrers’ properties, and it was a little difficult from the diagram to determine which dots were on referrers’ properties.

[156] He made limited specific comments about the referrers’ properties. In cross-examination, he produced the report that he had prepared on the Gocks’ property.

[157] That report identified that: there are as many as ten archaeological sites (5 previously recorded and 5 recorded during the survey). Most of the sites were midden in poor condition due to market gardening. There is a newly recorded small pa site (approximately 50m x 25m), in an excellent state of preservation, located on a small headland; the midden, and information supplied by tangata whenua to Dr Clough, indicated that this was an area of traditional occupation, many of the sites may date as late as the

30 19th/early 20th century, and it is probable that the 19th century settlements were situated on top of earlier pre-European settlements and that the area has been occupied for a considerable length of time; all but four of the sites lie within 20 metres of mean high water springs and could be protected by an esplanade reserve, if one were to be created. The other sites were mainly destroyed; from an archaeological perspective, there is justification in “retaining the heritage designation for the esplanade strip, which would ensure protection of the remaining archaeological features”; away from the coastline, the area has few remaining archaeological features; and there is low archaeological value over much of the property.

[158] The pa site is approximately 0.15 hectare of the Gocks’ 58 hectare property.

[159] Dr Clough accepted in cross-examination that imposing heritage zoning across the 58 hectares of the Gocks’ land rather than the area of the esplanade strip would be in conflict with the findings in his report.

[160] In cross-examination by Mr Bartlett about the significance or otherwise of the middens identified, Dr Clough stated his opinion that it is difficult to treat middens as one. Middens can range from simple meals to large feasts. Sometimes middens contain burial material and are regarded as significant; there can be archaic middens which contain evidence of early occupation. He gave his opinion that the majority of the middens at Crater Hill relate to the more basic level of occupation and cooking debris and do not relate to the earliest occupation.

[161] In cross-examination about his lack of survey on the particular properties (other than the Gocks’ property), Dr Clough stated that part of the support for his conclusions is based on an “archaeological landscape perspective”.

[162] The pre-circulated evidence of Dr Bedford, read by Dr McGovern-Wilson, dealt with Crater Hill. That evidence explained that Crater Hill still has a significant amount of intact archaeological remains on its rim. A total of 77 surface archaeological features have been

31 recorded at Crater Hill, including pa, platforms, terraces, pits, shell middens, boundary and garden rock alignments and garden mounds, the majority in an excellent state of preservation.

[163] The evidence stated that there is a large number of relatively small settlement sites on the banks of the streams around most of the perimeter. The settlement sites on Crater Hill itself have been recorded in 26 clusters and are located inside the crater, around the shore of the crater lake, on an island in the lake and on the rim of the tuff crater. The archaeological evidence suggests that the area supported a single large community with two main sections, one in the crater and the other on the periphery of the cone, with gardens in between and community facilities on the crater rim.

[164] Dr McGovern-Wilson accepted in cross-examination that: none of the sites on the Self Trust property is registered with the Trust as a waahi tapu site; and there is no indication that any of the midden sites is waahi tapu.

[165] When questioned about the significance of particular sites, Dr McGovern-Wilson indicated that it was not the individual sites, but that as a group they were a “significant cultural landscape”. He was not in a position to dispute that the pa is 1% of the site coverage at Crater Hill and was not able to point out where the pa site is.

[166] Dr McGovern-Wilson accepted in cross-examination that apart from the rim, the next highest concentration of archaeological sites is around the coastal margin on the Self Trust land - around the edges of Waokauri Creek. He accepted that the Self Trust land is not a single archaeological site and gave his opinion that it is a number of individual sites that exist in a landscape.

[167] Cross-examination demonstrated that Dr McGovern-Wilson did not have a detailed understanding of the facts and issues. We can therefore give little weight to the evidence that he read.

32 [168] The evidence explained the Trust’s view of correspondence about whether or not Self Trust has authority to quarry Crater Hill. Counsel for Self Trust identified that the issue of existing use rights is not an issue for the Court to resolve in these references. We agree. If the Trust considers that Self Trust does not have appropriate authorisation under the Historic Places Act, it has other remedies are available to it.

[169] Some of the statements in Dr Clough’s evidence and the evidence read by Dr McGovern- Wilson extend beyond the area of archaeological expertise and into comments on planning issues. We give no weight to the planning comments.

[170] Based on the archaeological evidence, we now set out our findings on archaeological issues. We find that: there are numerous archaeological sites in the area, which are indications of pre- European and 19th century occupations, with later occupations occurring over earlier ones; except for the Gocks’ site, insufficient evidence was provided to enable us to ascertain which archaeological sites are located on which land, or to be able to find whether all sites are of the same significance (which is highly unlikely) and, if they are not of the same significance, which sites are more important and where they are located; the number of archaeological sites in the area appears to be significant, but we had no evidence comparing this area with others; the archaeological sites are mainly in the coastal margins and in certain areas of the volcanic remains.

[171] In relation to the Central Earthmovers’ land, we find that the tuff ring seems to be the area with most archaeological sites but what those sites are, or their significance, is unclear. Other archaeological sites may be discovered on the Central Earthmovers land.

[172] The Gocks’ land has few archaeological features, except for the area within 20 metres of mean high water springs. The headland pa site, which is a relatively new discovery, is of some significance; it is at the coastal margin. Most of the property is of low archaeological value.

33 [173] The Tams’ land is unlikely to have archaeological features, except around the periphery or possibly deep in the land below the area disturbed for market gardening.

[174] In relation to the Self Trust’s land, we find that: a significant number of archaeological features have been recorded in clusters along the banks of the creeks and on Crater Hill, where the features are mainly located in clusters inside the crater, around the shore of crater lake, and on the rim of the tuff crater. The highest concentration is around the rim, with the next highest concentration being around the edges of Waokauri Creek; the majority of the middens at the Crater Hill site are likely to relate to the more basic level of occupation and cooking debris and do not relate to the earliest occupation; none of the sites on the Self Trust land is registered with the Historic Places Trust as a waahi tapu site.

[175] As already noted, the proposed district plan does not identify any archaeological sites in schedule 6G as heritage resources to be protected in the referrers’ properties.

Maori cultural issues, heritage

[176] The Council submitted that the undertaking provided by the Council in the Eastern Access agreement in respect of “recognising the need to protect and ensuring the protection of the Pukaki Marae environs” is a demonstration of Council’s commitment to ensuring that this land is given appropriate protection under the Resource Management Act. Unfortunately, as already noted, the Council made the undertaking without consulting, or including, landowners whose land would be affected by the Council’s undertaking.

[177] The Council also submitted that, given the strong ancestral associations and spiritual significance of the land to tangata whenua, it is essential that their interests be recognised and provided for in the management of the Mangere-Puhinui Heritage Zone. It was submitted that the zoning sought by the referrers does not provide the necessary protection.

34 [178] Ms Mahia Wilson was called by the Council to give evidence on Maori cultural issues. The close tangata whenua ancestral association with the area was not in dispute.

[179] Ms Wilson deposed that she represented the ancestral proprietor organisations of Wai-o- Hua Trust, Pukaki Maori Marae Committee, Makaurau Marae Committee, and Pukaki Trust.

[180] Ms Wilson’s evidence was that the Waiohua tribe with Tainui as its protector came together and Te Aakitai emerged from that relationship. They are mana whenua in this area and are the original people of Tamaki Makaurau.

[181] The marae and ancestral home of Te Aakitai is at Pukaki. All the lands within the Mangere-Puhinui Heritage Zone and beyond were once in their ownership.

[182] Major areas of settlement were located around the harbour including at Pukaki. That strategic location was an important staging point in tribal movement to the north and to the south. It was a centre of commerce.

[183] Ms Wilson deposed that their interests extend well beyond the Mangere-Puhinui Heritage Zone boundary, but this area is highly significant to tangata whenua as an important part of what remains of their heritage. It is the context of their marae and their traditional food bowl - the Pukaki and Waokauri creeks and the Manukau (waters).

[184] The heritage and history of the area is a taonga, with the water, coast and landforms being interrelated. The physical and spiritual wellbeing of tangata whenua continues to be linked to their ancestral lands and waterways.

[185] Ms Wilson explained that the Maori history of the area is well-documented and their interests and concerns have been consistently expressed since the confiscation of their lands following the land wars in the 19th century. There is an enduring physical and spiritual connection with ancestral lands and waahi tapu and other taonga and those of their tupuna.

35 [186] Ms Wilson referred to the findings of the Waitangi Tribunal on the Manukau Claim, which includes the Pukaki area.

[187] Ms Wilson’s evidence was that Manukau City Council, in its response to the Waitangi Tribunal findings, assisted with the return of the ancestral marae land, urupa and the Pukaki lagoon.

[188] Some events included: 1986 - Crown in conjunction with the Council secure for hapuu the certificate of title to the burial ground; 1990 - Community embark upon the development of whanau and marae land in collaboration with the Council; 1992 - Through the Maori Land Court, establishment of the Pukaki-Waokauri Creeks as Maori Reservation for use of the Te Aakitai and Te Ahiwaru o Waiohua; 1993 - Crown and Council secure for hapuu certificate of title to Pukaki Crater; July 1996 - Te Aakitai Hapuu meet to rededicate papatupu Marae for redevelopment and papatupu whenua whanau for re-establishment. The “Marae Opening” is hoped to occur during 2002.

[189] The Waitangi Tribunal report recorded that the Pukaki lagoon had significance as one of the sacred footsteps of Mataaho, the vulcan god whose footprints are evidenced by a series of depressions in the landscape starting from Lake Pupuke on Auckland’s North Shore. Ms Wilson explained that Crater Hill is another footprint.

[190] Ms Wilson concluded that it is critical and essential to retain the historical rural and heritage associations with their Marae and its environ, their urupa, the Pukaki lagoon and the wider context of land in the Mangere-Puhinui Heritage zone. Tangata whenua wish to:

“protect the outlook from our Marae to the waters and the land around the Pukaki and Waokauri creeks and consolidate the progress made in rebuilding. We seek the security that our historical, cultural and spiritual values will be acknowledged and that our association with our ancestral lands is recognised...

36 It is therefore essential to us that developments do not erode our traditional environment in the context of our Marae, urupa and ancestral lands. It is the Marae that will provide for us and future generations.”

[191] While we had some evidence that the land on which the marae is located is zoned Maori Purposes, it appears from the proposed district plan maps that the marae and other nearby land is zoned Papakainga Zone. In cross-examination, Ms Wilson explained that there are currently a number of houses in the area used by Maori and it was anticipated that there would be more housing provided in the future.

[192] Ms Wilson stated in cross-examination that there is not opposition in principle to housing in the area.

[193] When cross-examined about the importance of particular properties in the Mangere-Puhinui Heritage Zone or the location of waahi tapu that should be respected by the Court, Ms Wilson responded that the Maori view is a holistic one, without boundaries. Other than the two footprints of Pukaki lagoon and Crater Hill, she did not identify areas of referrers’ properties about which there was a particular concern.

[194] We now set out our findings.

[195] We accept the undisputed historical, cultural and spiritual association that Ms Wilson and her people have with the area included in the Mangere-Puhinui Heritage Zone and beyond. We accept that the heritage and history of the area are a taonga.

[196] We also accept that the Pukaki Marae is an important focus for the Maori community, with associated housing and facilities planned for the future.

[197] We find that the lands in the MPHZ are ancestral lands of tangata whenua, in that the lands were owned by ancestors. Much of the land is now owned by others. The Gocks purchased some of their land from Maori. However, we accept the cultural, spiritual and traditional values expressed and the association with ancestral lands.

37 [198] We also find that there are important cultural, spiritual and traditional links with the Waokauri and Pukaki creeks and accept that the lands and the waters are interrelated to Maori.

[199] We find that, apart from the footprints of Pukaki Lagoon and Crater Hill, there are not specific areas on the referrers’ properties that are of particular concern. As Ms Wilson stated, the Maori view is a holistic one and tangata whenua have traditional links with the whole area, and beyond.

[200] The Council’s legal submissions asserted that there are a considerable number of burial sites or urupa in the Pukaki and Crater Hill environs. There is no evidence that there are burial sites or urupa in the areas of land being proposed for rezoning at the hearing. While Dr Clough’s evidence referred to recorded sites, including sites associated with burial, the attachment to his evidence dealt with sites in the MPHZ, rather than sites on identified land which was sought to be rezoned. Accordingly, on the evidence before us, we cannot find that there are any urupa in the land sought to be rezoned at the hearing.

[201] We did not have evidence that there are sites in the areas being proposed for rezoning at the hearing that are waahi tapu.

Natural character of the coastal environment

[202] It was not generally in dispute that much of the area subject to the references is in the coastal environment.

[203] We find that there is somewhat of a natural character in parts of this coastal environment, but the coastal environment is not pristine. The coastal environment includes developments such as business activities, buildings and sheds (in the Business 5 zone), greenhouses, a quarry, housing, and other buildings. It also includes rural activities, market gardens, and planting, particularly along some of the coastal margins. The airport is nearby, with its associated noise. While there is some natural character, it has been eroded.

38 [204] In the Regional Policy Statement, the coastal margins of Pukaki Creek and Waokauri Creek are identified as Landscape Quality Value - 5, which is “regionally significant”.

[205] In relation to cultural matters, the proposed regional coastal plan identifies Pukaki- Waiokauri Creek as one of two Tangata Whenua Management Areas. The proposed regional coastal plan explains that the Waitangi Tribunal recommended that the creek be reserved for the exclusive use of the Pukaki Marae. An application to the Maori Land Court resulted in the establishment in 1992 of the Pukaki-Waiokauri Creek as a Maori Reservation for the purpose, among other things, of a place of significance for the common use and benefit of the Hapu of Te Akitai and Te Ahiwaru o Waiohua. This part of the coastal marine area also has an underlying identification of Coastal Protection Area 2.

[206] We conclude that the coastal marine area and the coastal margin are areas that are more natural (although not pristine) and more deserving of recognition, than the coastal environment further inland. The coastal marine area and/or coastal margin are provided for in the Regional Policy Statement, the proposed regional coastal plan, and in the coastal yard requirements in the proposed district plan for the MPRZ and the MPHZ.

[207] We deal later with the rules in the relevant zones and our conclusion, in that context, about the extent of recognition and provision for the natural character of the coastal environment.

Landscape and related issues

[208] The Council relied on section 6(b) of the Act: the protection of outstanding natural landscapes from inappropriate subdivision, use and development.

[209] We accept Mr Brownhill’s submission that there can be a number of different aspects to the landscape - natural, historical and cultural9.

9 NZ Marine Hatcheries (Marlborough) Ltd v Marlborough District Council Environment Court Decision W129/97. 39 [210] In Wakatipu Environmental Society, Incorporated v Queenstown-Lakes District Council10, the Court set out a list of aspects or criteria for assessing a landscape. Aspects relevant to this hearing include: the natural science factors - the geological, topographical, ecological and dynamic components of the landscape; its aesthetic values including memorability and naturalness; its expressiveness (legibility): how obviously the landscape demonstrates the formative processes leading to it; whether the values are shared and recognised; its value to tangata whenua; its historical associations.

[211] We accept Mr Brownhill’s submission that the Wakatipu decision (and other Environment Court decisions, although some in different contexts) held that outstanding natural landscapes in a proposed district plan are to be assessed on a district-wide basis, because that is the context of a district plan. However, we also note that the Wakatipu decision stated that the test of being an outstanding natural landscape is still “a rigorous one” and that usually an outstanding natural landscape should be so obvious that there is no need for expert analysis. We also note that protection of outstanding natural landscapes in section 6(b) is a matter of national importance.

[212] Even if a landscape is not an outstanding natural landscape, landscape and related issues and effects can be relevant under section 5(2) and section 7(b), (c), (d), (f) and (g).

[213] Mr Brown’s evidence addressed the references in the context of an advisory report that he had prepared for the ARC in 1999. That report was a review of landscape values attached to Puketutu Island, Pukaki Crater and Crater Hill.

(a) Pukaki Crater and lagoon

[214] Mr Brown’s evidence was that the Pukaki Crater already displays a significantly modified, ‘developed’ character and is relatively introverted, with quite limited exposure to its wider surrounds. Although its tuff ring extends to the edge of Massey Road (and beyond), the fact that the northern, and to a certain extent the eastern margins of the crater wall are already covered in residential development, and industrial development near Tidal Road, limits the landform’s natural character values.

[215] Mr Brown deposed that reclamation of the central lagoon with pasture compounds this degradation, as does the imposition of both residential and industrial development along its eastern margins, following Tidal Road. To the west, the crater margins and inner walls are used for a mixture of market gardening and cattle grazing. Outside the central crater, market gardening, together with packing sheds, garages, housing, a large pine woodlot in the direction of Waokauri Creek, and sporadic shelterbelts are obvious.

[216] He expressed his opinion that the Pukaki Crater does not have great visual prominence and often appears as an extension of the wider, gently undulating, landform. It is only marginally connected with the main harbour coastline. Purely from a visual landscape perspective, the crown of development around a sizeable part of the tuff ring, combined with is low visual exposure and public “presence” in more remote views could be taken as suggesting a low level of sensitivity to change.

[217] However, Pukaki Crater is one of only 6 major volcanic features in close proximity to the Manukau Harbour. It, Crater Hill and the modified McLaughlins Mountain are the only significant volcanic features in close proximity to Manukau city and the airport.

[218] From a landscape perspective, Mr Brown relied on Pukaki Crater’s natural heritage and character values instead of other visual landscape considerations.

(b) Crater Hill

[219] In Mr Brown’s opinion, many of the contradictions applying to Pukaki Lagoon also apply to Crater Hill. Flanked by housing across Tidal and Portage Roads, with market gardens along its northern and western flanks, a quarry excavating its southern inner wall, and the South-western Motorway cutting through the eastern side of the hill, it too is very considerably modified and compromised.

41 [220] Mr Brown’s evidence was that the combination of housing, motorway, industry near Tidal Road and the quarrying operations mean that the natural landscape values of Crater Hill are appreciably diluted.

[221] He deposed that, as a whole, Crater Hill has modest aesthetic appeal. It retains a relatively low physical profile, merges almost seamlessly into the wider landscape and is quite difficult to differentiate from its wider setting when viewed from any distance.

[222] In his view, although less distinctive in its overall scale than Pukaki Crater, it is still discernible as a volcanic feature and is one of few such remaining natural features in this part of Auckland. While its landscape values and character are scarcely of note at the regional level, it remains a feature of note at the sub-regional level and is a subtle component of the coastal environment, albeit somewhat divorced from the harbour proper.

(c) Amalgam of features

[223] Mr Brown deposed that Pukaki Crater and Crater Hill are part of an interlocking physical chain of heritage features and open space that stretches beyond the MPHZ area. None of the landscape features (including Pukaki Crater or Crater Hill) can be regarded as outstanding at the regional level (with the likely exception of Puketutu Island).

[224] In his 1999 report, Mr Brown had stated that “On the basis of the individual landscape evaluations, it is clear that both Pukaki Crater and Crater Hill are unexceptional in their own right and would substantially rely upon their natural heritage values as the basis for resisting future development and modification.”

[225] His opinion was that the features in combination and in combination with the coastal aspects, can be regarded as of regional significance. The amalgam of features is much more important than its individual parts and features.

42 (d) Discussion and findings

[226] While the Council and the Regional Council sought to rely on the area coming within section 6(b) as an outstanding natural landscape, these references relate to what zoning should be applied to which land (and not directly to the identification of outstanding natural landscapes in the district plan).

[227] We would have expected that, if this area is considered by the Council to be an outstanding natural landscape, the proposed district plan would have already identified that. It does not.

[228] The proposed plan simply identifies in section 17.3.9 that the MPHZ includes rural areas that have high landscape values, and significant natural and/or cultural heritage values.

[229] Dealing with the aspects identified in the Wakatipu case, we find that: in relation to natural science factors, Pukaki Crater and Crater Hill have importance from a geological and heritage perspective in the geological structure of the cones; the aesthetic values including memorability and naturalness are more limited, because the naturalness of the area has been affected by a range of activities and the landscape itself is not particularly memorable; the expressiveness is rather limited because, as Mr Brown identified, the features are relatively subtle. However, if one knows what one is looking at, the landscape demonstrates the formative processes leading to it; there was not evidence that the landscape values are shared and recognised among the community, and we conclude that an ordinary person would not identify the area as an outstanding natural landscape. Having said that, the landscape values are shared and recognised from a geological (and perhaps archaeological) perspective and from the Maori perspective; the landscape has importance to tangata whenua, in terms of the spiritual aspects of the geological features, the importance of the coastal environment to tangata whenua, the ancestral and historical links with the entire area, and the land and water being linked holistically.

43 [230] We find that the area dealt with in this hearing is not an outstanding natural landscape, even taking into account the amalgam of features (and geological, archaeological, and cultural aspects) and the coastal environment.

[231] That finding is reinforced by the various planning documents. Relevant matters include that: all the objectives and policies in the MPRZ and the MPHZ are the same; the criteria for the four features identified in Schedule 6E in the proposed district plan are scientific/educational importance, and not visual appeal or historic and cultural importance, which were other options available for scheduling geological features; the coastal margins of Pukaki Creek and Waokauri Creek (rather than any other areas relevant to this hearing) are identified as Landscape Quality Value - 5, regionally significant from a landscape perspective, in the Regional Policy Statement; the proposed regional coastal plan identifies the Pukaki-Waokauri Creek as one of two Tangata Whenua Management Areas; Appendix B of the Regional Policy Statement identifies Significant Natural Heritage Areas and Values which are of regional significance. The volcanic landforms of the Auckland area are referred to, and Pukaki lagoon and Crater Hill are identified; Crater Hill is considered to be of national importance; while the Regional Policy Statement provides for visual protection of various volcanic cones, it does not provide that protection for either Crater Hill or Pukaki Crater/lagoon11; no visual protection of Pukaki Crater and Lagoon or Crater Hill is provided in the proposed district plan, other than the limited differences in the rules for the MPHZ as opposed to the MPRZ, and the description in 17.3.9.

[232] It is important to recall that, even for outstanding natural landscapes and also for the preservation of the natural character of the coastal environment, section 6(a) and (b) provide for protection from inappropriate subdivision, use and development, not absolute protection.

11 See Map 4. 44 Comparison of rules

[233] In deciding which zoning is appropriate in the circumstances of this case, considering the activities that are provided for in the rules of the plan and in the various zones, and the appropriateness of those activities, is a way forward.

[234] We attach an annexure (Annexure 1) helpfully prepared by Mr Hartley, which compares the activity status of key activities in the MPRZ, MPHZ, Rural 1 Zone and Rural 3 Zone. While we do not refer to all the detail in the planning and resource management evidence of Messrs Hartley, Davies, and Macpherson, we were assisted by that evidence.

[235] Before turning to the comparisons of the rules, we first address the rules which deal with scheduled heritage resources.

(a) How are scheduled heritage resources dealt with in the proposed district plan?

[236] The activity table in rule 6.9.2 (in chapter 6, dealing with heritage) provides the activity status for a variety of activities that may affect scheduled heritage resources.

[237] Any works or activity which may have an adverse effect on any scheduled geological feature is a discretionary activity. This is relevant to Pukaki lagoon, Crater Hill, and the lava caves, which are scheduled geological features in Schedule 6E.

[238] For scheduled waahi tapu, activities which may have an adverse effect are either controlled or discretionary.

[239] Any works or activity which may have an adverse effect on any scheduled archaeological site is a discretionary activity.

[240] Because of the way in which the rules are structured, the rules in chapter 6 mean that there would be no non-complying activities for scheduled geological features, waahi tapu, or

45 archaeological sites. Any activity with an adverse effect would be, at the most stringent, a discretionary activity in this chapter.

[241] An issue is whether more stringent categorisation should be provided in the zone rules. In the context of the matters raised in this hearing, that issue is particularly relevant in areas such as the land of the Gocks and Tams, where no geological, archaeological, or waahi tapu sites are recorded in the proposed district plan. However, it is also relevant in the areas of land where the particular scheduled geological features are located.

[242] We turn now to consider the provisions of the relevant zones.

(b) Rural 1 compared with MPHZ (and MPRZ)

[243] Unfortunately, most of the evidence did not really deal with the Rural 1 option for the Self Trust and Tam land, since their reliance on that zoning was not identified until well into the hearing.

[244] Apart from Mr Hartley’s annexure, we had little assistance in comparing Rural 1 and MPHZ. Mr Davies’ view is that, while the range of permitted activities in the Rural 1 and MPRZ is slightly (but not significantly) greater than the MPHZ, the provisions of those zones are very similar. Mr Davies could find no justification for the minor differences between these rural zones.

[245] His opinion, to simplify the format of the district plan, is that much would be gained by eliminating the Mangere-Puhinui zones “from their special hiding place at the back of the plan and substituting the Rural 1 zone.” However, not all of the Mangere-Puhinui rural area zoning was included in the references, so deleting both the MPRZ and the MPHZ is not an option.

[246] In relation to removing the MPHZ completely, while the Self Trust reference could provide jurisdiction for such an outcome, there was not evidence before the Court that would persuade us that the MPHZ should be removed completely.

46 [247] We conclude that the Council’s decision to have Rural 1 zoning in the eastern parts of the City and Mangere-Puhinui zoning in the western part of the city meets the first step in the Wilkinson approach. We are of the opinion that Rural 1 zoning should not be inserted into the western part of the City in preference to Mangere-Puhinui zoning.

[248] Which Mangere-Puhinui zoning should be on which areas of land remains to be determined. The issue of Rural 3 zoning for Central Earthmovers land also remains.

(c) MPRZ compared with MPHZ

[249] The Council identified the key differences in the rules of the Mangere-Puhinui Rural Zone compared with the Mangere-Puhinui Heritage Zone as relating to: mineral extraction activity; travellers accommodation; rural services; and production forestry.

[250] These activities are discretionary activities in the Mangere-Puhinui Rural Zone but non- complying activities in the Mangere-Puhinui Heritage Zone. (Production forestry beyond 500 metres of mean high water springs or Puhinui Road is a permitted activity in the MPRZ and a non-complying activity in the MPHZ.)

[251] There are also differences in clean fill activities; clean fill exceeding 500 m3 is a discretionary activity in the MPRZ and a non-complying activity in the MPHZ.

[252] Mr Brownhill relied on Caltex New Zealand Limited v Auckland City Council12 to submit that the main difference between discretionary activities and non-complying activities is that a discretionary activity is provided for (subject to the resource consent process) by a rule in a plan, and a non-complying activity contravenes a rule. However, shortly after that case, the definition of non-complying activity was amended. The definition now includes that a non-complying

12 (1997) 3 ELRNZ 297.

47 activity can be provided for by a rule in a plan or proposed plan; in this case, the relevant activities are provided for by rules making the activities non-complying.

[253] We do not fully accept Mr Brownhill’s submission that the effect of a discretionary activity is to signal to the community that development is contemplated in this area and refer, for example, to the Council’s rules in chapter 6 dealing with scheduled heritage resources.

[254] Resource consents are required if activities are discretionary or non-complying. If the adverse effects of the activity for which consent is sought are unacceptable, the Council can refuse consent for both discretionary and non-complying activities.

[255] In terms of the four activities which are discretionary activities in the MPRZ and non- complying activities in the MPHZ, mineral extraction on Pukaki Crater and, in particular, Crater Hill was an issue of concern because of its potential to remove all or parts of the craters and the effects of extraction (e.g. on archaeological sites, visual, amenity); there was a concern that production forestry would affect the ability to see the subtle features of these two craters; the concerns about travellers’ accommodation and rural services were less clear in the evidence. The Council’s decision stated that rural services may impact on “identified sensitive landscapes” and may disturb archaeological features. That decision also stated that travellers’ accommodation would either seek to locate in noise and visually sensitive areas or be situated in locations with strong heritage values (e.g. waahi tapu areas).

[256] Mr Davies’ opinion (expressed in the context of his evidence, which was primarily focussed on issues relevant to the Gocks and Central Earthmovers) was that: mineral extraction will not occur in areas where there are no minerals (i.e. the south end of the Pukaki peninsula, including the Gock land); production forestry, as defined, will generally require an area of about 1000ha to be economic, and is unlikely to occur on fertile market garden land;

48 rural services are unlikely to locate in such a tightly delineated area where services are provided elsewhere; travellers accommodation is even more unlikely to locate in a no-exit road (difficult and inconvenient to find with no passing traffic) some travel distance from any likely destination, including the airport.

[257] We conclude that production forestry is not realistically foreseeable on any of the land covered by the references.

[258] We also conclude that it is unlikely that travellers’ accommodation or rural services would realistically locate on some of the land. Mineral extraction is unlikely on the Gock (and possibly other) land. In any event, those activities would need a resource consent.

[259] The only activities which are permitted or controlled in the MPRZ (and therefore which would be allowed) but which would be discretionary in the MPHZ are cleanfill up to 500m3 and breeding and boarding pets. We accept Mr Davies’ evidence that it is difficult to see how these activities could affect the geological, heritage, landscape, and cultural values identified as support for the MPHZ (particularly when the activities which are permitted activities in the MPHZ are taken into account).

[260] In comparing the performance standards of the two zones, the main difference is that the coastal yard requirement is 30 metres in the Mangere-Puhinui Rural Zone and 40 metres in the Mangere-Puhinui Heritage Zone. We conclude that the 30 metre MPRZ yard is sufficient to cater for the archaeological areas identified as being in the coastal margins. We recall that Dr Clough identified that an area of esplanade reserve (which would be a smaller area than either yard requirement) would cater for most of the sites, to the extent that sites had been identified at the Gock property. The 30 metre MPRZ yard and the provisions of the MPRZ and the proposed district plan (and any related resource consent process) are also appropriate to protect the coastal margin identified as of regional significance.

[261] It is relevant that in both MPRZ and MPHZ: buildings accessory to a permitted activity are a permitted activity;

49 farming is a permitted activity, with no restriction on soil disturbance or provision of shelter in that context. It was not in dispute that market gardening would be a permitted activity. Buildings accessory to farming are also a permitted activity, provided they comply with performance standards; greenhouses are a permitted activity; and there is no restriction on planting, except for production forestry.

[262] We have considered the effects that can be caused by permitted activities in determining the appropriate zoning for the relevant areas.

[263] In relation to the land of the Tams, Gocks, Self Trust, and the Pukaki lagoon, we conclude that: the natural character of the coastal margin will be preserved and protected from inappropriate development by the 30 metre coastal yard requirement in the MPRZ and the rules and other provisions in the MPFU and the proposed district plan; to the extent that there is natural character of the coastal environment beyond the coastal margin, it is protected by the MPRZ; Maori spiritual, cultural and traditional values and the relationship of tangata whenua with their ancestral lands, water and other taonga are recognised and provided for by the MPRZ, which also provides for active protection by the need for resource consent for various activities; to the extent that protection of the outlook from the Pukaki marae is warranted, we conclude that it is protected by zoning the adjacent lands MPRZ; other heritage, landscape, quality of the environment, and amenity aspects, actual or potential effects of activities, other Part II factors, and integrated management are appropriately catered for by the MPRZ; the differences between the two zones are not sufficiently significant to warrant the more stringent MPHZ being imposed on the areas that are the subject of this hearing; the resource consent process enables evaluation of the effects of relevant activities as discretionary activities; we cannot find any reason why the proximity of the airport or the sewage treatment plant would warrant imposing the MPHZ. (d) Rural 3 compared with MPHZ - Central Earthmovers

[264] In terms of the Rural 3 zoning sought by Central Earthmovers, we accept Mr Hartley’s description that the Rural 3 zone is intended to act as a transition zone between rural and urban activities. We earlier set out relevant aspects of the description of the zone.

[265] Mr Hartley acknowledged that the range of activities that can be undertaken in the MPHZ is quite limited. The Rural 3 zone has a more limited range of land use opportunities than the MPHZ, with the exception of subdivision.

[266] For the Rural 3 zone (as compared with MPHZ), it is relevant to note that: for Rural 3, there is a minimum lot size of 5000m2 as a controlled activity, to preserve the amenity values and semi-rural character of the area. There are also performance standards; in a number of respects, the activity status of activities in the Rural 3 zone is the same as (e.g. mineral extraction, production forestry, rural services, cleanfill), or more stringent than (e.g. greenhouses, travellers accommodation), the activity status in the MPHZ. A number of activities which would be a permitted activity in the MPHZ would require a resource consent in the Rural 3 zone.

[267] We conclude that the main issue about Rural 3 land (as opposed to MPHZ) relates to its ability to be used for subdivision to 5000m2.

[268] We accept Mr Savage’s submission that MPHZ zoning will not facilitate public access to either the crater or the margins of the creek. We agree that there are some lost opportunities as a result of the MPHZ.

[269] We are of the view that the Rural 3 zone description in the proposed district plan is applicable to most of the Central Earthmovers property. We accept that Rural 3 zoning is appropriate as a transition between the urban and rural areas. It provides for countryside living, which we conclude is appropriate in this location.

51 [270] While the Regional Council raised various concerns, we conclude that Rural 3 zoning is not inconsistent with anything in the RPS and is consistent with zoning outside the Metropolitan Urban Limits.

[271] Mr Berry made submissions about the need for structure plans for significant new areas proposed for countryside living purposes; Mr Savage submitted that it was not needed in this case. We have considered the description of the structure planning process in the RPS. This hearing has dealt with a number of matters identified for the structure planning process. We are of the opinion that the structure planning process is not needed for the relatively modest area of land that we consider should be zoned Rural 3.

[272] We refer to Mr Savage’s submission that there is a need for a separate land use consent for siting houses in the Rural 3 zone and that the relevant assessment criteria are in rule 12.12.3. We have some doubt as to the applicability of the assessment criteria to this area but, although we queried their applicability at the hearing, the Council did not challenge Mr Savage’s submission. If that provision does apply, we conclude that any effects of subdivision and related housing in the Rural 3 zone are able to be dealt with by the Council. If it does not apply, in light of the transitional nature of the Rural 3 zone and the transitional nature of the Central Earthmovers land, we conclude that Rural 3 zoning achieves the purpose of the Act and the objectives and policies of the Rural 3 zone, and provides appropriately for the relevant Part II matters identified.

[273] We recall that Ms Wilson did not express opposition to housing and that Mr Hartley thought that housing might be appropriate in some areas.

[274] We are not persuaded that there are aspects of the sewage treatment plant or future airport noise that should preclude Rural 3 zoning.

[275] We agree that there are benefits in zoning the land Rural 3, including enabling the property owners to provide for their social and economic wellbeing and providing the opportunity for public access to the crater and the inlets of the harbour, if or when the land is subdivided or developed.

52 [276] Our comments in this section about zoning the land Rural 3 are subject to our later comments about Schedule 6E and the zoning that should apply to the area identified for Pukaki Lagoon Tuff Ring and Crater.

Preliminary conclusion at end of first Wilkinson step

[277] The Council submitted that it did not wish to upset the overall integrity of the zone by “spot zoning” certain areas. The Regional Council submitted that the areas of land included in the references comprise a significant proportion of the MPHZ, so that substantial success on the part of the referrers would threaten the values that the zone was originally created to recognise and provide for.

[278] We conclude that rezoning the lands does have an effect on the MPHZ and its integrity. However, given all the factors that we have traversed, there are not sufficiently strong reasons to retain the MPHZ. The reasons in favour of MPRZ and Rural 3 Zone are stronger than the reasons for retaining the MPHZ. We recall that the objectives and policies of the MPRZ and the MPHZ are the same; that Rural 3 is a transition zone between rural and urban and that housing was not opposed by Ms Wilson; that chapter 6 also deals with heritage resources; that resource consents will be needed for most activities that were identified as being of issue; and that authority under the Historic Places Act is needed to destroy, damage or modify archaeological sites.

[279] Our preliminary view, at the end of the first step of the Wilkinson approach, is that the zoning that better accords with Part II of the Act; achieves integrated management of the effects of the use, development or protection of the land; and implements the objectives and policies of the proposed plan is (subject to the conclusions later about the Schedule 6E extent of Pukaki Lagoon Tuff Ring and Crater and the links between that outcome and the zoning outcomes): Mangere-Puhinui Rural zoning for the land of the Gocks, Tams, Self Trust, and the Pukaki lagoon; Rural 3 zoning for the land owned by Central Earthmovers (and the parts of the two neighbouring properties).

53 [280] Our preliminary view is also that the Mangere-Puhinui Rural Zone should apply to the area to be identified in Schedule 6E for Pukaki Lagoon Tuff Ring and Crater (including the area on the Central Earthmovers land), Pukaki lagoon access strip, and the areas of land surrounded by the Self Trust land (i.e. the area of the Manukau City Council water reserve and the area near Crater Lake identified by Mr Macpherson as owned by DB Breweries). Reasons for including these areas are consistency in zoning, integrated management of effects, avoiding “spot zoning”, and the various reasons that support our preliminary view about the zoning issues on the other areas of land.

Does the zoning meet the section 32 tests?

[281] The second limb of the approach in the Wilkinson case is whether the zoning meets the section 32 tests.

[282] It was submitted by the Council and the ARC that the submitters had not raised the issue of the adequacy of the section 32 cost-benefit analysis in their submissions. No one opposed that submission, although section 32 issues and issues about the adequacy of the Council’s approach arose a number of times during the hearing.

[283] We took it as generally agreed that we should address the test in section 32 as a substantive matter as to whether the zoning meets the section 32 tests (rather than as an argument about whether the zoning is inadequate as a result of a procedural deficiency).

[284] We therefore consider whether the zoning is: necessary in achieving the purpose of the Act, and in that context, necessity is to be understood as falling between expedient or desirable on the one hand and essential on the other13; the most appropriate means of carrying out the function of controlling the actual or potential adverse effects of the use, development or protection of land.

13 Flanagan v The Christchurch City Council Environment Court Decision C222/01, para 48. 54 [285] We conclude that the MPHZ is neither necessary in achieving the purpose of the Act, nor the most appropriate means. We conclude the same about Rural 1 zoning that was sought for some areas.

[286] Since the objectives and policies of the MPRZ and the MPHZ are the same, and since rules are to achieve the objectives and policies of the plan14, first principles might tend to persuade against different zoning and rules for areas covered by the same objectives and policies. However, because of the way in which the proposed district plan has been prepared, we do not put too much emphasis on this aspect.

[287] The evidence about heritage, archaeological, cultural, coastal and landscape issues does not suggest that MPHZ is necessary for the property of the Tams or the Gocks. The main activities identified as being of potential concern require a resource consent under both MPHZ and MPRZ. We conclude that zoning the land MPRZ is more necessary and a more appropriate means.

[288] The situation is perhaps less clear-cut for the Central Earthmovers, the Pukaki lagoon (and access), and the Self Trust (and water reserve and brewery) properties, because of their location on Pukaki Crater and Crater Hill. In that respect, we keep in mind the presumptions inferred by sections 9 and 11 and also that there is no onus. We also are conscious that the proposed district plan provides that activities that adversely affect the Schedule 6E areas are discretionary activities.

[289] We conclude that zoning the Central Earthmovers property as Rural 3 is more necessary and a more appropriate means. The Rural 3 zone provides for a transition between rural and urban and the Central Earthmovers property is in a transitional location.

[290] We also conclude that zoning the Pukaki lagoon and access and the Self Trust (and water reserve and brewery) properties MPRZ is more necessary and more appropriate than the MPHZ. Resource consents are required for the main activities identified as being of potential concern, so adverse effects can be addressed in the context of more detailed information about relevant issues, for example the precise location of archaeological sites and the significance of those sites.

14 Section 76(1)(b).

55 Contrary to Regional Policy Statement or NZ Coastal Policy Statement?

[291] The district plan must not be inconsistent with the NZ Coastal Policy Statement or the Regional Policy Statement15.

[292] Our attention was not drawn to any operative regional plan that would come within section 75(2)(c)(ii).

[293] We were referred to a number of objectives, policies and other provisions from the Regional Policy Statement. These provisions relate particularly to: regional overview and strategic direction, including strategic objectives and policies, urban development, the area of the references being outside the Metropolitan Urban Limits, and countryside living (chapter 2); matters of significance to iwi (chapter 3); heritage, including heritage preservation and protection, natural heritage, landscape, and volcanic features (chapter 6); coastal environment, including areas of special value, significant resource management issues for tangata whenua (chapter 7), and maps identifying landscape quality value 5 for the coastal margins of Waokauri and Pukaki Creeks; mineral prospecting (chapter 13); the Metropolitan Urban Limits; Appendix B, Significant Natural Heritage Areas and Values.

[294] We were also referred to various provisions in the NZ Coastal Policy Statement.

[295] We do not need to refer to all the provisions. It is sufficient to record that the relief that we conclude is the appropriate relief is not contrary to either the Regional Policy Statement or the NZ Coastal Policy Statement.

15 Section 75(2).

56 Overall zoning conclusion

[296] The ultimate step identified in the Wilkinson case is whether, on balance, we are satisfied the proposal would more fully serve the statutory purpose than would cancelling it.

[297] In terms of zoning issues, for the reasons that we have already explained, we are satisfied that the statutory purpose would be more fully served by: zoning the properties of the Gocks, Self Trust (and the water reserve and brewery land), and the Tams, and the area of the Pukaki lagoon (and access) as Mangere- Puhinui Rural Zone; zoning the Central Earthmovers property and the parts of the two neighbouring landowners Rural 3, subject to our conclusions about Schedule 6E and the zoning that should apply to the area to be identified for Pukaki Lagoon Tuff Ring and Crater.

Schedule 6E - Pukaki Lagoon Tuff Ring and Crater area

[298] We consider here the issue of the area identified in Schedule 6E for Pukaki Lagoon Tuff Ring and Crater. Central Earthmovers sought that it be restricted to 5 metres beyond the top of the escarpment of the tuff ring.

[299] In considering the issue of the extent of the area identified in Schedule 6E, we have taken into account: the scheduling in the proposed district plan being for scientific/educational importance (rather than for visual appeal or for historic and cultural importance); the importance of the inside of the crater as being a mythological footprint; the limited visual and landscape importance of Pukaki Crater itself, as identified by Mr Brown; the evidence from Mr Kermode about the amenity values of the inside of the crater; the Regional Policy Statement identifying the Pukaki lagoon as “a splendid natural amphitheatre”, again emphasising the inside of the crater.

57 [300] We conclude that the current area identified in Schedule 6E is unnecessarily large. We also conclude that the area sought by Central Earthmovers is too small.

[301] In the evidence, it was suggested that a specific contour could be used to determine the outer boundary of the Schedule 6E protection zone around the crater rim. While at first sight that appears to be a solution, on consideration of the contour plans provided, we have concluded that the general lie of the land, sloping as it does towards the Waokauri Creek, would preclude that as a practical solution. That is because it would either need to be referenced to a different contour at either end or would result in the width being much greater at one end than the other. We conclude that a distance of ten metres from the outer rim of the escarpment would provide appropriately for the lagoon itself and the tuff ring. It would also provide sufficient area to allow practical access around the crater.

[302] We conclude that providing for this area in Schedule 6E for Pukaki Lagoon Tuff Ring and Crater meets the three steps of the Wilkinson approach and is not contrary to the Regional Policy Statement or the NZ coastal policy statement.

[303] There is an issue about from where the distance should be measured. The attachment to Mr Davies’ evidence from Adie & Assoc. states that “the top of the escarpment is defined as the intersection of the steeper surface formed by the explosion and the more moderately sloped land beyond.” Parties may have views about that form of words. We are also conscious that words may not be appropriate, given that the location is currently shown in the plan by lines on planning maps. We reserve leave to the parties to advise the Court, preferably by an agreed memorandum, as to the precise form of order that the Court should make about the location for Pukaki Lagoon Tuff Ring and Crater in Schedule 6E.

Conclusion/leave reserved

[304] We do not make a determination in this interim decision, because there are some outstanding issues that remain to be finalised. We will make the determination when all the issues are finalised.

58 [305] Our interim conclusions are that: pursuant to the Central Earthmovers reference (but excluding the area of land to be identified as being within Schedule 6E, which is to be rezoned Mangere-Puhinui Rural Zone pursuant to the Gock reference), the Central Earthmovers land (including the parts of the two neighbouring properties) should be zoned Rural 3; pursuant to the Gock reference, the Pukaki lagoon and access, the area of Central Earthmovers land to be included in Schedule 6E, the land of the Gocks, and the land of the Tams should be zoned Mangere-Puhinui Rural Zone; pursuant to the Self Trust reference, the Self Trust land, as well as the areas surrounded by the Self Trust land, including the area designated as Local Purpose Reserve (Water) and the brewery-owned land, should be zoned Mangere-Puhinui Rural Zone.

[306] We have prepared a draft schedule of land areas (Annexure 2). Because there seemed to be errors in some legal descriptions in the evidence, when comparing evidence with title documents, some title documents were difficult to read, and we did not have title documents for the Self Trust and related properties, there may be errors in that draft schedule. There are omissions.

[307] So that the areas to be rezoned are clearly identified, the parties are asked to prepare, preferably as an agreed position: either a correct schedule of land areas; or a map to identify the areas (not using colour for the purpose of that identification) to be zoned Rural 3 and Mangere-Puhinui Rural zone, with the map being sufficiently clear that it can be attached to the final decision to show the areas being rezoned.

[308] As noted, we also reserve leave to the parties to advise the Court, preferably by an agreed memorandum, as to the precise form of order that the Court should make about the location for Pukaki Lagoon Tuff Ring and Crater in Schedule 6E (either using words and/or a map).

[309] Because of the interim decision that we have made, there may be consequential changes needed to some provisions of the proposed district plan (e.g. Section 17.3.9.2). We encourage

59 the parties to agree as to what, if any, consequential changes are needed in the proposed district plan and to lodge a joint memorandum.

[310] According, leave is reserved for the parties to provide (preferably by agreement) the information sought to the Registrar of the Environment Court by 17 June 2002.

[311] If agreement cannot be reached, then the Council is to lodge its documentation by 24 June 2002, anyone opposing is to lodge a memorandum by 1 July 2002, and the Council may lodge a reply if necessary by 8 July 2002.

[312] If there are any other outstanding issues that need to be resolved to implement the outcomes that we have identified, and before a final determination can be made, leave is reserved for the memoranda lodged to address those other issues.

[313] The question of costs is reserved, but our preliminary view (in spite of the issues related to the Eastern Access agreement) is that there is no reason to depart from the Court’s usual practice of not awarding costs in references.

DATED at WELLINGTON this day of May 2002

For the Court:

60

Annexure 2 - Draft schedule of land

Rural 3

1. Land to be rezoned to Rural 3 pursuant to the Central Earthmovers reference (excluding the area to be included in Schedule 6E for Pukaki Lagoon Tuff Ring and Crater, which is to be zoned Mangere-Puhinui Rural Zone, pursuant to the Gock reference):

CT 80D/723 Allotment 388 Parish of Manurewa 2.1058 hectares CT 44B/1032 Lot 1 DP 86840 4435 square metres CT 42B/849 Allotment 162 Parish of Manurewa 4.2239 hectares CT 86D/72 Part Lot 4 DP 7131 and being pt Allotments 57 and 72 Parish of Manurewa. 18.5 160 hectares

2. Other land to be rezoned Rural 3 pursuant to the Central Earthmovers reference are the southern parts of Part Lots 1 and 2 and Lots 3 and 4 DP 23643 identified in the evidence as being held as:

CT 1842/40 Moneville Farms Ltd 11.21 hectares CT 629/146 John West Investments Ltd 13.28 hectares

Mangere-Puhinui Rural Zone

3. Land to be rezoned to Mangere-Puhinui Rural Zone pursuant to the Gock reference:

Land owned by Central Earthmovers Ltd

Those areas of land to be included in Schedule 6E Pukaki Lagoon Tuff Ring and Crater, which are excluded from the Rural 3 zoning

Land owned by Pukaki Maori Marae Committee (and leased to Central Earthmovers Ltd)

CT 408/119 Section 1 Block IX Otahuhu SD 36.3002 hectares CT 417/196 Allotment 219 Parish of Manurewa 3195 square metres

Land owned by Joe and Fay Gock or Joe and Fay Gock Family Trusts

CT 166/212 Allotment 158B, Parish of Manurewa 9.4595 hectares CT 88/284 Allotment 158A, Parish of Manurewa 7.4866 hectares CT 47A/426 Pt Allotment 159, Parish of Manurewa (DP 18158) 3.4904 hectares CT 103B/209 Lot 1 DP 184203, Lot 3 DP 152950, Lot 3 DP 169380 18.2614 hectares CT 103B/208 Lot 2 DP 169380 12.0370 hectares CT 31A/l406 Parish of Manurewa Lot 157 A Block 1.9981 hectares CT 10A/869 Parish of Manurewa Lot 157 B2 Block 4566 square metres CT 10A/872 Parish of Manurewa Lot 157 B3 Block 4364 square metres CT 10A/870 Parish of Manurewa Lot 157 B4 Block 4364 square metres CT 2A/1433 Parish of Manurewa Lot 157 B5 Block 2.5419 hectares CT 10B/314 Parish of Manurewa Lot 157 B6 Block 5819 square metres CT 10B/316 Parish of Manurewa Lot 157 B7 Block 5819 square metres CT 3A/656 Parish of Manurewa Lot 157 B8 Block 6679 square metres

1 J & D Tam land (precise name of ownership uncertain)

Pt Allotment 56 (DP 20148) Parish of Manurewa. 14.8305 hectares

4. Land to be rezoned to Mangere-Puhinui Rural Zone pursuant to the Self Trust reference:

The land shown in Annexure 1 to the evidence of Mr SA Hartley The area of land surrounded by the land shown in that Annexure 1 for the Self Trust reference, including that area held as Local Purpose Reserve (Water) and other small parcel(s) of land in that area owned in relation to the brewery use (ownership name uncertain)

2