Before a Board of Inquiry East West Link Proposal

BEFORE A BOARD OF INQUIRY EAST WEST LINK PROPOSAL

Under the Resource Management Act 1991

In the matter of a Board of Inquiry appointed under s149J of the Resource Management Act 1991 to consider notices of requirement and applications for resource consent made by the New Zealand Transport Agency in relation to the East West Link roading proposal in Auckland

Closing Legal submissions on behalf of Auckland Transport dated 13 September 2017

BARRISTERS AND SOLICITORS

A J L BEATSON SOLICITOR FOR THE SUBMITTER AUCKLAND LEVEL 22, VERO CENTRE, 48 SHORTLAND STREET PO BOX 4199, AUCKLAND 1140, DX CP20509, NEW ZEALAND TEL 64 9 916 8800 FAX 64 9 916 8801 EMAIL [email protected]

MAY IT PLEASE THE BOARD

Introduction

1. Auckland Transport (AT) supports the East West Link (EWL) Project. It considers the EWL Project will result in the following key transport related benefits:

(a) It responds to an identified need to improve freight and general traffic efficiency. The EWL will improve travel times and travel time reliability between businesses in the Onehunga-Penrose industrial area and State Highways 1 and 20;

(b) It improves cycling and walking facilities with over double the linear length of walking and cycling facilities in the project area compared with the existing network, and related safety and accessibility improvements between Mangere Bridge, Onehunga and Sylvia Park;

(d) Network resilience, lower traffic volumes on residential streets and arterial routes, and improved connectivity between Onehunga Town Centre and Onehunga Port.

2. All of the issues raised in AT’s submission and/or evidence have been addressed either through agreed amendments to the conditions, or through a separate agreement (referred to as the Consenting Phase Agreement). We have attached to these submissions those agreed conditions of particular importance to AT.

Syl Park Investments Limited and 8 Sylvia Park Road Body Corporate

3. Mr Allan for Syl Park Investments Limited and 8 Sylvia Park Road Body Corporate stated at the hearing yesterday that if an agreement cannot be negotiated with the owner of 1 Pacific Rise then either AT or NZTA should designate the site.

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4. Mr Allan referred to Mr Winter’s evidence that if NZTA is unable to formalise access across 1 Pacific Rise then AT could become involved in that matter.1 For completeness, this was not an agreement by AT to designate the site and AT does not designate and acquire land for private accesses. Mr Winter stated that the easement which was being negotiated would be the most appropriate way of dealing with the issue.2

Potential Effects on Sylvia Park

Effects of EWL

5. AT and NZTA do not consider that the EWL will have an adverse effect on the local road network in the Sylvia Park area.3

6. AT, as Road Controlling Authority, already undertakes monitoring of its network, including Mount Wellington Highway.4 Nevertheless, AT has agreed with Kiwi to undertake additional monitoring of traffic conditions in the vicinity of Sylvia Park.

Criticisms of AT

7. Mr Parlane and Mr Luker made a number of criticisms and assertions about AT during questioning by the Board, including that AT had stated that the Link Road can only be for buses, that no one from AT has produced evidence about the Link Road, and that Kiwi cannot meet with the relevant AT staff who consider the Link Road should only be for buses. 5

1 Closing Submissions on behalf of Syl Park Investments Limited and 8 Sylvia Park Road Body Corporate dated 12 September, para 22 2 Lines 11-13, page 2353 of the Transcript 3 Lines 33-37, page 2590 of the Transcript. Rebuttal evidence of Michael Davies on behalf of Auckland Transport dated 20 June 2017 at [7]; Rebuttal evidence of Andrew Murray on behalf of NZTA dated 20 June 2017 at [19.24]-[19.25]. 4 Lines 21-26, page 2583 of the Transcript 5 Pages 4773, 4785 and 4786 of the Transcript

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8. We consider these comments are a red herring, unrelated to the EWL, and outside the scope of this process. In any event, the assertions made are not accepted, including because:

(a) AT has not stated to Mr Parlane or Kiwi that the Link Road can only be for buses. As noted in AT’s evidence and by Mr Cross at the hearing, AT has made no final decision in respect of this matter;

(b) AT has discussed and shared the findings of modelling of traffic on the Link Road with Kiwi;

(c) AT has arranged meetings with the relevant people from both AT and AT’s consultants about the Link Road.Kiwi has also met with, and continue to be in communication with, the Chief Executive of AT.

Kiwi’s concerns

9. Mr Luker and Mr Parlane both agree that the expansion of the Sylvia Park Shopping Centre will result in increased traffic on the local road network.6 However, Mr Luker adopted the concept of good congestion (generated by the Sylvia Park Shopping Centre) and bad congestion (unplanned through traffic).7

10. From AT’s perspective, it does not accept this distinction and monitors increased traffic flows irrespective of potential causes and assesses increased congestion from a network perspective. AT agrees with Mr Bickers’ questions to Mr Parlane - that any baseline monitoring should also identify what effects the extension and development at Sylvia Park might be having on the network.8

6 Lines 10-17, page 4767 of the Transcript; lines 32-45, page 4785 of the Transcript 7 Lines 17-30, page 4766 of the Transcript 8 Lines 19-25, page 4787 of the Transcript. We note Mr Parlane made a number of statements about the modelling undertaken to support Sylvia Park and the plan provisions. However, these statements related to the Operative Plan not the Unitary Plan process or provisions.

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11. Mr Luker for Kiwi Property Group Limited (Kiwi) confirmed that:

(a) Rat running on Carbine Road and Clemow Drive is unlikely to affect retail activity at Sylvia Park due to the complementary timing of commuter and retail traffic peaks;9 and

(b) Kiwi’s concern is that the EWL is going to conflict with existing and future employment traffic.10

12. However, both Mr Luker and Mr Parlane acknowledged offices and other employment, which are part of the Sylvia Park Metropolitan Centre, are particularly suited to public transport.11 In fact recent analysis shows there is a trend away from private vehicle use to public transport at Sylvia Park, which has good access to public transport and usage at Sylvia Park Station “is definitely going up”.12

13. Mr Parlane’s own assessment for an office building at Sylvia Park was that a significant increase in services as a result of the City Rail Link will make rail even more attractive to commuters, a sizeable number of people travelling to and from Sylvia Park could change their mode of travel, and the City Rail Link could mean a reduction in traffic on both Mount Wellington Highway and Carbine Road.13

14. Mr Parlane relied on existing and future public transport facilities and the Sylvia Park Travel Management Plan as the basis for concluding the adverse transportation effects of office development at Sylvia Park were mitigated.14

15. Given the above context it is difficult to understand why Kiwi is concerned that the EWL is going to conflict with existing and future employment traffic at Sylvia Park. Moreover it appears that Kiwi is attempting to use peak-hour congestion to substantiate transport

9 Lines 19-47, page 4767 of the Transcript 10 Lines 1-4, page 4768 of the Transcript 11 Lines 29-48, page 4768 of the Transcript; and Line 18, page 4782 of the Transcript 12 Exhibit W and lines 1-27, page 4770 of the Transcript 13 Lines 14-44, page 4793 of the Transcript 14 Lines 46-48, page 4793 of the Transcript and line 1, page 4794 of the Transcript

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infrastructure improvements that would support its retail activities which can occur across the evening peak and weekends.

Kiwi’s requests

16. Kiwi seeks a number of measures to mitigate the potential effects of the EWL. Yet even its own witness Mr Parlane accepted that there is an element of conjecture as to whether or not there is going to be an adverse effect from EWL.15

17. Mr Parlane also accepted just because there is increased traffic does not mean there is always going to be a mitigation requirement.16 The need for and implementation of mitigation will also depend on available funding and other priorities across the network.17

18. One of the mitigation measures Kiwi seeks is private vehicles being allowed on the proposed Link Road. Neither Mr Luker nor Mr Parlane had read Anthony Cross’ evidence for AT on this matter, despite it directly addressing their evidence.18 Mr Luker deferred to Mr Parlane, who considered there is capacity to use the proposed Link Road for other traffic.19 Mr Parlane confirmed he had not undertaken any modelling to support this view but it was based on some “rough estimates”.20 Kiwi did not question Mr Cross as to whether or not there is likely to be a capacity issue if private vehicles are allowed to use the Link Road.21

19. Mr Cross’ evidence is that the original primary purpose of the Link Road is to improve bus performance and reliability in the Sylvia Park area, and to enable a direct interchange facility with train services.22 In his view the Link Road should remain bus-only as originally proposed

15 Lines 22-31, page 4783 of the Transcript 16 Lines 46-47, page 4789 and line 1, page 4790 of the Transcript 17 Lines 20-41, page 4791 of the Transcript 18 Lines 29-32, page 4770 of the Transcript; Lines 1-6, page 4792 of the Transcript 19 Lines 26-34, page 4781 of the Transcript 20 Lines 13-25, page 4792 of the Transcript 21 Mr Allan asked Mr Cross whether it is possible to design an access way in such a way that enables both private vehicles and the buses to co-exist, lines 26-27, page 2609 of the Transcript 22 Lines 30-34, page 2607 of the Transcript

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to maximise the benefits for public transport users.23 However, AT has made no final decisions in respect of this matter. Mr Cross considers any decision to open the Link Road up to general traffic should take into account the impact on bus operations not only on the Link Road itself but also throughout the Sylvia Park precinct.24

20. As discussed in our opening legal submissions, conditions of consent cannot be validly imposed that would infringe third party rights.25 As acknowledged by Kiwi,26 due to separation of roles of NZTA and AT under the relevant legislation, it is not possible as part of this process to require AT to monitor and make improvements to its network in order to mitigate any adverse effects generated by the EWL.

21. Kiwi has suggested that the motivation for the roading authorities opposing conditions relating to monitoring may be a wish to avoid being subject to oversight under the RMA with respect to how new roading projects function in practice.27 AT does not accept this contention. It considers that conditions should not be imposed unless there are likely to be adverse effects requiring management, and Kiwi has failed to establish this. Further, all of AT’s traffic counts are publicly available on its website.28 NZTA provides implementation reviews of all of its major projects on its website.29 There is no issue about transparency. Instead the issue is adding additional costs to a project which are unnecessary and unwarranted.

22. For all of these reasons, AT considers no monitoring condition can properly be imposed on the EWL designations. AT’s monitoring

23 Lines 34-35, page 2607 of the Transcript 24 Lines 36-39, page 2607 of the Transcript 25 See Beazley Properties Ltd v Huntly Borough Council (1978) B 1067 Appeal 72/78 (PT); Redvale Lime Co Ltd v Rodney DC EnvC A006/06 at [20] citing Catchpole v Rangitikei District Council W035/2003 at [16]. 26 Statement of evidence of Mark Luker on behalf of Kiwi Property Group Limited and Sylvia Park Business Centre Limited dated 22 May 2017 at [27]. 27 Closing Submissions on behalf of Kiwi Property Group Limited and Sylvia Park Business Centre Limited dated 12 September, para 19 28 https://at.govt.nz/about-us/reports-publications/traffic-counts/ 29 http://www.nzta.govt.nz/planning-and-investment/planning/transport- monitoring/audits/post-implementation-reviews/

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agreement with Kiwi is a more appropriate method to identify any potential adverse effects of the EWL on the local road network.

______AJL Beatson/ NJ Garvan Counsel for Auckland Transport

13 September 2017

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Attachment A

Condition Wording Agreed Number

DC.11 As part of the Outline Plan(s) prepared under section 176A of the RMA, the Requiring Authority shall demonstrate how the following outcomes will be achieved for the relevant stage of the project for which the Outline Plan has been submitted:

(a) A local road connection linking Orpheus Drive and Onehunga Harbour Road including two traffic lanes (one in each direction), pedestrian access on both sides including a 3m (minimum) shared pedestrian and cycle path on one side; (b) A shared pedestrian and cycle path connection between Orpheus Drive and the proposed new Old Māngere Bridge, providing a linkage Taumanu Reserve to Onehunga Wharf, with design details as set out in Condition LV.5D; (c) Provision for access achieving all movements for all road legal vehicles between the local road and Onehunga Wharf; (d) A high quality pedestrian and cycle connection providing a linkage along Onehunga Mall to and from Onehunga Town Centre; (e) Replacement of on-street carparks removed outside The Landing with the same number of carparks in reasonable proximity; (f) Provision for safe right turn movement westbound from Neilson Street into Onehunga Mall; (g) Operation of clearways, in the morning and evening peaks, to provide on-street parking on Captain Springs Road (south of Neilson Street) in off-peak times; (h) Provision for safe turning of large vehicles and a separate public parking area at the southern end of Hugo Johnston Drive; (i) Separation of pedestrian and cycle facilities from general traffic on the EWL Main Alignment; (j) Provision for pedestrian and cycle access from the EWL Main Alignment into Sylvia Park Town Centre, in coordination with the requirement for not precluding the multi-modal link road in Condition DC.12A(ii); (k) Provision for right of way access from 430 Mt Wellington Highway (Lot 1 DP 188694) across: (i) The State Highway designated area under the overpasses which pass over that site to allow access from Auckland

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Transport’s proposed AMETI corridor to that site; and (ii) The 5m wide State Highway designation along the Mt Wellington Highway road frontage; (l) High quality pedestrian and cycle facilities across the Princes Street Interchange, providing appropriate protection between pedestrian/ cycle facilities and general traffic and consideration of how the Interchange cycle facilities can integrate with the local road network, particularly Luke Street, Todd Place and Avenue Road.

DC.12 The Requiring Authority shall consult with Auckland Transport during the preparation of the Outline Plan(s) in relation to:

(i) Local roads, including walking and cycling and public transport facilities, and other interfaces between the State Highway and local road networks; and (ii) The proposed Auckland Transport projects identified in Condition DC.12A. The Outline Plan(s) shall detail the input and comments from Auckland Transport, describe how this has been incorporated into the design, and where any input has not been incorporated, set out the reason why.

DC.12A As part of the Outline Plan(s) prepared under section 176A of the RMA, the Requiring Authority shall demonstrate how the following proposed transport projects are not precluded, and where practicable, are accommodated by the Project:

(i) A future Mass Rapid Transit connection to the Auckland International Airport, and in particular ensuring as a minimum the preferred alignment identified in the South-West Multi-Modal Airport Rapid Transit Draft Indicative Business Case is provided for by the Project; (ii) A future multi-modal link road to the Sylvia Park Town Centre as part of the AMETI programme, in particular ensuring that the location of piers does not preclude the alignment and any of the proposed modes; and (iii) Future potential improvements to rail at the Westfield Junction including provision for grade-separation and a new north-facing connection between the North Island Main Trunk and the North Auckland Line, and additional lines for freight.

CT.1 A Construction Traffic Management Plan (CTMP) shall be prepared by a suitably qualified person and in consultation with Auckland Transport.

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The purpose of the CTMP is to manage the various traffic management, safety and efficiency effects associated with Construction Works to:

(a) Protect public safety including the safe passage of and connectivity for pedestrians and cyclists, particularly for school students travelling to and from school; (b) Minimise increase to existing delays to road users, public transport services, pedestrians and cyclists; (c) Minimise interruption to property access; (d) Inform the public about any potential impacts on the road network; and (e) Minimise disruptions on the arterial road network and rail network during construction.

CT.2 The CTMP shall:

(a) Identify how Condition CT.1 will be achieved; (b) Be in general accordance with the Draft Construction Traffic Management Plan Framework listed in DC.1; (c) Where road capacity may be significantly affected by temporary traffic management, identify potential effects of the capacity reduction and proposed measures to minimise delays. Traffic impact assessment (with the possible inclusion of traffic modelling) may be required particularly where the arterial road network is affected; (d) Include measures to avoid road closures and restrictions on vehicle, bus, cycle and pedestrian movements; (e) Identify site access routes and access points for heavy vehicles; (f) Identify any temporary changes to bus routes and bus stops, whether these can be safely accommodated on the relevant roads, and how Auckland Transport will be involved in the considerations for maintaining service to key destinations and minimising reductions to levels of service; (g) Where road closures or restrictions cannot reasonably be avoided, the particular vulnerabilities and sensitivities of pedestrian diversions and reduced conditions shall be taken into account in the planning of any closures or restrictions;

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(h) Confirm that a safe alternative shared cycle/pedestrian path connection between Onehunga Harbour Road and Old Māngere Bridge or the New Old Māngere Bridge (if constructed) is available at all times during the Construction Works; (i) Identify proposed measures to minimise the duration of closure of the existing shared path facility along the Māngere Inlet, and proposed measures to stage works and / or provide detours to minimise inconvenience. Detours shall be sign posted, and shall where practicable minimise the increase in length relative to the existing facility, the increase in vertical ascent, and minimise the duration of the construction period. The alternate route shall have an appropriate surface maintained throughout its period of use. (j) Include the process for rail closures, including how scheduled block-of-lines are to be utilised, and ensuring the timing of any closures result in no significant level of service reduction to train services at peak commuter times and rail freight services.

CT.3 At least 40 working days prior to commencement of Construction Works the Requiring Authority shall provide a draft of the CTMP to Auckland Transport for comment.

The CTMP shall describe the input and comments from Auckland Transport, describe how this has been incorporated and, where any input has not been incorporated, set out the reason why.

Any amendments to the CTMP shall be prepared in consultation with Auckland Transport prior to submission in accordance with Condition DC.10.

CT.9 Any damage to a local road and arterial road which is verified by a Suitably Qualified Person as being directly attributable to heavy vehicles entering or exiting construction sites shall be repaired within two weeks or within an alternative timeframe to be agreed with Auckland Transport. All repairs shall be undertaken by the requiring authority in accordance with the Auckland Transport Code of Practice, unless otherwise agreed between the parties.

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NU.10 The Requiring Authority shall work with Mercury, Transpower, KiwiRail and Auckland Transport to confirm the design and construction methodology for Construction Works on or around the Southdown rail supply substation.

Construction Works that would compromise the ongoing operation of the transformer and other assets located within the Southdown Substation serving the Auckland rail network shall not occur until such time as measures are in place agreed with the above parties to mitigate any potential risks to the rail network and ensure continuity of electricity supply.

NU.11 The Requiring Authority shall not require Auckland Transport or Network Utility Operators with existing infrastructure within the road reserve to seek written approval under section 176 of the RMA for on-going access to enable work associated with the routine construction, operation and maintenance of existing assets. To the extent that written approval is required, this shall constitute written approval.

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