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Urban and Services Plan Change Appeals

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Urban and Services Plan Change Appeals IN THE ENVIRONMENT COURT OF NEW ZEALAND AUCKLAND REGISTRY I MUA I TE KŌTI TAIAO O AOTEAROA TĀMAKI MAKAURAU ROHE ENV-2020-AKL IN THE MATTER OF the Resource Management Act 1991 AND IN THE MATTER OF an appeal under clause 14(1) of Schedule 1 of the Resource Management Act 1991 BETWEEN NEW ZEALAND TRANSPORT AGENCY Appellant AND WHANGAREI DISTRICT COUNCIL Respondent NOTICE OF APPEAL TO THE ENVIRONMENT COURT AGAINST DECISION OF THE WHANGAREI DISTRICT COUNCIL ON PROPOSED PLAN CHANGES 109 & 148 – URBAN AND SERVICES TO THE WHANGAREI DISTRICT PLAN 15 July 2020 Barristers and Solicitors Auckland Solicitor Acting: Patrick Mulligan / Mathew Gribben Email: [email protected] Tel 64 9 358 2555 Fax 64 9 363 0734 PO Box 1433 DX CP24024 Auckland 1140 To: The Registrar Environment Court Auckland 1. New Zealand Transport Agency (“Transport Agency”) appeals against part of the decision of the Whangarei District Council (“Council”) to approve Proposed Plan Changes 109 & 148 – Urban and Services – to the Whangarei District Council Operative District Plan (“Plan Changes”). Background and decision appealed 2. The Transport Agency lodged a submission on the Plan Changes on 3 July 2019 and lodged further submissions on 22 August 2019. 3. It presented legal submissions and evidence to the Independent Hearings Panel on a range of matters on 26 November 2019, including: (a) Urban growth and development policies; (b) Regionally significant infrastructure objectives and policies; (c) Proposed new amenity noise provisions; (d) Transport provisions including triggers for Integrated Transport Assessments; (e) Signs and lighting provisions; (f) The Whangarei Hospital zone; (g) Site specific rezonings or precincts that could impact on the State highway network; and (h) The wider zoning pattern. 4. The Transport Agency is not a trade competitor for the purposes of section 308D of the Resource Management Act 1991 (“RMA”). 5. The Transport Agency received notice of the Council’s decision on the Plan Changes on 3 June 2020 (“Decision”). 6. The Transport Agency generally supports the Decision in relation to the matters identified above. Page 2 Parts of the Decision subject to appeal 7. The Transport Agency is appealing against parts of the Decision that do not: (a) Allow a fair and balanced assessment of new regionally significant infrastructure (“RSI”) and in particular, major upgrades to existing RSI (DGD-17); (b) Include robust and comprehensive triggers for when restricted discretionary activity consents are required in order to assess transport effects, including through Integrated Transport Assessments (“ITAs”) (TRA-R15); and (c) Adequately manage the potential effects of noise from the State highway network on noise sensitive activities (Transport Chapter Rules). 8. The reasons for the appeal generally are that some parts of the Plan Changes do not: (d) Meet the purpose, principles or requirements of the RMA; (e) Give effect to the relevant higher order planning documents, including national policy statements and the Northland Regional Policy Statement; (f) Represent the most appropriate way of exercising the Respondent’s functions or implementing the objectives in the district plan, having regard to the efficiency and effectiveness of other reasonably practicable options, and are therefore not appropriate in terms of section 32 and other provisions of the RMA; (g) Provide for the safe and efficient operation and development of the State highway network, including managing potential adverse effects on the network and its users; (h) Adequately protect new noise sensitive activities adjacent to the State highway network in the absence of appropriate mitigation; and (i) Achieve integrated management of the effects of the use, development or protection of land and associated natural and physical resources. BF\60284113\4 Page 3 9. The Decision was issued as an integrated package on all related plan changes, however, the specific parts of the Decision that are appealed relate to: (j) Plan Change 148 – District Growth and Development; and (k) Plan Change 109 – Transport. Providing for regionally significant infrastructure in the objective and policy framework Reasons for the appeal 10. The Transport Agency seeks provisions that recognise and enable new RSI, and which recognise that new RSI and major upgrades can generate significant adverse effects, but that this needs to be weighed against the benefits of RSI. 11. The Transport Agency is particularly concerned with the RSI provisions given the significance of the State highway network to Whangarei and the wider Northland Communities. The State highway network provides the critical link between different communities and to key economic assets. It is therefore important that the Plan allows for maintenance and upgrades to the existing network and also for new improvements and projects likely to be required to service anticipated growth. 12. The Transport Agency supports the revised objectives DGD-O13 (identification and protection of RSI), DGD-O14 (benefits of RSI are recognised and provided for) and DGD-O15 (avoid, remedy or mitigate adverse effects of RSI). The related policies, as amended through the Decision, appropriately provide for new RSI. 13. However, the policies for RSI require amendments to improve clarity and remove potential inconsistency between how upgrades to existing RSI are treated: (l) DGD-P15 recognises and provides for the operation, development and upgrade of RSI; (m) DGD-P16 outlines how adverse effects of new RSI are to be managed but appears to depart from the language of the notified version of the Plan Changes and the section 42 reports; and BF\60284113\4 Page 4 (n) DGD-P17 outlines how adverse effects of upgrades to RSI are managed but is inconsistent with DGD-P15, as it requires all upgrades to RSI to have the same or similar adverse effects as before the upgrading was undertaken. This could effectively prevent any major upgrades gaining approval and undermines DGD-P15 and the related objectives. Relief sought 14. In order to address the matters discussed above, the Transport Agency seeks the following amendments to the Growth and Development Chapter of the Decision: (o) DGD-P16 is amended as follows: DGD-P16 – New Regionally Significant Infrastructure: Allowing Manage adverse effects created by from new network utilities and Regionally Significant Infrastructure that have been by avoidinged, remedyingied, mitigatinged or off- setting (where practicable and offered or agreed to), while taking into account the following matters: a. Benefits of the activity; b. Any recognition within a national policy statement; c. Constraints that limit the design and location of the activity, including any alternatives assessed; d. Whether the proposal is a regionally significant infrastructure lifeline utility which meets the foreseeable needs of Northland; e. The extent to which the adverse effects of the activity can be practicably reduced including any positive effects on the subject site or elsewhere (provided that the positive effects accrue to the community of interest and/or resource affected); f. Any monitoring programme for identified significant adverse effects with uncertain outcomes which can be addressed by and adaptive management regime where the infrastructure assists in achieving efficient land use; g. Whether the infrastructure proposal helps to achieve consolidated development and efficient use of land; and h. Ensuring damage to or loss of the relationship of iwi with ancestral sites, sites of significance, wāhi tapu, customary activities and/or taonga is avoided or otherwise agreed to by the affected iwi or hapū. BF\60284113\4 Page 5 (p) DGD-P17 is amended as follows: DGD-P17 – Managing Adverse Effects of Existing Regionally Significant Infrastructure: In addition to Policy DGD-P15, Tto manage adverse effects from the operation, maintenance and upgrading of existing network utilities and Regionally Significant Infrastructure by: 1.Allowing adverse effects that are not significant while the maintenance or upgrading is being undertaken. 2.Requiring that any permanent adverse effects are the same or similar to the adverse effects that existed before the maintenance or upgrading was undertaken. 3.Taking into account the following matters: … Integrated Transport Assessments Reasons for the appeal 15. The Transport Agency strongly supports the use of ITAs and their retention in the Plan Changes. A district plan without such provisions would fail to meet best practice transport planning, as they are a critical management tool which serve a number of purposes. 16. The Transport Agency considers additional ITA triggers, such as Gross Floor Area (“GFA”), occupancy or vehicle generation, are necessary as the reliance on car parking numbers as ITA triggers does not necessarily reflect actual trip generation characteristics. As a result, the provisions in the Decision do not allow for an appropriate understanding of the impact a development can have on the safe and efficient operation of the State highway network. 17. In addition, some land use activities may not be captured by reliance on a car parking trigger. These activities include fuel stations, drive through activities, schools and childcare centres. Therefore, more appropriate triggers are required for these types of activities. BF\60284113\4 Page 6 Relief sought 18. The Transport Agency seeks that the Plan Changes be amended to address the issues identified above, and specifically that: (a) Additional ITA triggers are
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