Closing Legal Submissions for the NZ Transport Agency and Porirua City Council

Before a Board of Inquiry Transmission Gully Notices of Requirement and Consents under: the Resource Management Act 1991 in the matter of: Notices of requirement for designations and resource consent applications by the NZ Transport Agency, Porirua City Council and Transpower New Zealand Limited for the Transmission Gully Proposal between: NZ Transport Agency Requiring Authority and Applicant and: Porirua City Council Local Authority and Applicant and: Transpower New Zealand Limited Applicant Closing legal submissions for the NZ Transport Agency and Porirua City Council Dated: 14 March 2012 REFERENCE: John Hassan ([email protected]) Nicky McIndoe ([email protected]) 1 CONTENTS CLOSING LEGAL SUBMISSIONS FOR THE NZ TRANSPORT AGENCY AND PORIRUA CITY COUNCIL 4 INTRODUCTION 4 The narrowing of issues to certain conditions and controls 4 Regional resource consents 4 Notices of Requirement 4 Overarching questions 4 Structure of closing submissions 5 Regional consents 6 Noise mitigation and conditions in the NoRs 6 Other issues as to resource consent and Notice of Requirement conditions 6 Other matters 6 WHAT THE PRECAUTIONARY APPROACH REQUIRES TO ADDRESS ECOLOGICAL RISKS FROM SEDIMENT 7 Reliability of sediment yield and effects modelling and assessment 7 Reliability of harbour modelling and effects‟ assessment 10 Are the effects on the Inlet acceptable? 12 Why Dr De Luca‟s opinion should be preferred 13 Controls and conditions are appropriately conservative 15 The sediment management controls 15 The sediment management conditions 15 Marine ecology conditions 22 Conclusion on sediment and harbour conditions 23 HOW MUCH MITIGATION IS APPROPRIATE FOR EFFECTS ON FRESHWATER AND TERRESTIAL ECOLOGY? 24 Some debates about models 24 Freshwater ecology issues 24 Is fish passage required to be provided for in all culverts? 25 Should a peer review panel be provided for freshwater ecology? 26 What is the value of the re-vegetation proposed in the upper tributaries? 27 Terrestrial ecology issues 27 Is biodiversity a subset of ecology and how is it relevant under the Act? 28 Should a biodiversity offsetting model have been used and is the quantum of mitigation to be provided appropriate? 29 What pest management programmes should be provided? 30 What is the appropriate period for maintenance planting? 33 Is a baseline survey of coastal birds required? 34 Should the Applicants be required to carry out roost site enhancement activities? 35 NOISE MITIGATION AND CONDITIONS IN THE NOTICES OF REQUIREMENT 36 042407977/1473210.10 2 Operational noise effects 36 Will operational noise effects be reasonably mitigated by the NoR conditions proposed by the Applicants? 36 OTHER ISSUES AS TO RESOURCE CONSENT AND NOTICE OF REQUIREMENT CONDITIONS 41 The Project‟s management plans 41 Outline Plans and the process for certification of the Territorial Authority Management Plans 41 Certification or approval? 44 Who should certify the EMMP? 46 What is being certified by the local authorities? 48 Clarity and precision in key consent obligations 53 Consent holder ultimate responsibility for compliance with conditions and Management Plans 54 ADDITIONAL CONDITIONS OR RELIEF SOUGHT BY CERTAIN SUBMITTERS 55 KCDC 55 Is a condition regarding the treatment of the existing State highway 1 required? 55 Rational Transport Society 58 Mr McMahon‟s observations and request 58 What was called and tested as to the conditions sought by RTS? 59 What is the evidence as to effects in support of the RTS conditions? 60 Are there issues of lawfulness with the conditions RTS propose? 62 Irrelevance of claimed “precedents” 63 What is the appropriate response to the relief pursued by RTS? 63 Are there potential responses to aspects of what RTS seeks? 63 Matters relating to the LUDMP 65 Response to property owners: Paekakariki Hill Road 462, 436A and 504 66 KCDC‟s conditions 68 DOC‟s conditions 68 Paremata Residents Association & PICT conditions 69 OTHER MATTERS 69 Traffic and Transportation Issues 69 What is the relationship between the Land Transport Act 1998 and the Land Transport Management Act 2003? 69 Has the NZTA failed to give adequate consideration to alternative sites, routes and methods? 70 Greenhouse gas emissions and effects on climate change for the consideration of the effects of the Project 74 Is the sustainable management purpose of the RMA promoted? 76 CONDITIONS 77 APPENDIX A – DESIGNATION AND RESOURCE CONSENT CONDITIONS 79 042407977/1473210.10 3 APPENDIX B – MANAGEMENT PLAN DIAGRAMS 80 042407977/1473210.10 4 CLOSING LEGAL SUBMISSIONS FOR THE NZ TRANSPORT AGENCY AND PORIRUA CITY COUNCIL May it please the Board INTRODUCTION The narrowing of issues to certain conditions and controls 1 In its opening1, the Applicants submitted that the key issues were in essence: Regional resource consents 1.1 In relation to construction sediment and ecological effects: (a) Are the sediment yield and effects modelling and assessment sufficiently reliable and fit for purpose to allow the Board of Inquiry (the Board) to make its necessary findings? (b) Can conditions satisfactorily manage effects and risks to the receiving environment associated with construction sediment? Notices of Requirement 1.2 In relation to noise effects: (a) Will these be reasonably mitigated by conditions in accordance with the New Zealand Road Traffic Noise Standard NZS6806: 2010 (NZS 6806)? 1.3 Various finer grain issues, including: (a) What, if any, relevance do greenhouse gas emissions have for the consideration of the effects of the Project? (b) Are concerns about property acquisition and property value impacts relevant to the consideration of effects? Overarching questions 1.4 For both the regional resource consent applications and the Notices of Requirement (NoRs): (a) Are the conditions appropriate? (b) What benefits (positive effects) will the Transmission Gully Proposal have for people and communities, and are these sufficient for the purposes of Part 2? 1 Opening Legal Submissions for the NZ Transport Agency and Porirua City Council, 13 February 2012 (Applicants’ Opening Submissions), paras 77-78. 042407977/1473210.10 5 2 The hearing has centred on those matters and the focus of these closing submissions can be quite confined in that: 2.1 Residual differences as between the Applicants and parties such as the Director General of Conservation (DOC), and Kapiti Coast District Council (KCDC) are confined to certain matters in conditions. There are no outstanding matters as between the Applicants and Greater Wellington Regional Council (GWRC). 2.2 The Board‟s signalled issues for closing are also confined. These pertain to conditions, noise management, and other matters of wording. 2.3 There are very confined issues raised by affected individuals living along the alignment. 2.4 The challenge mounted primarily by the Rational Transport Society Inc (RTS) as to the benefits of the Transmission Gully Project (TGP or the Project) amounts to philosophical differences and allow these closing submissions to simply refer to what was said in opening as having been substantiated on the evidence heard and tested.2 The Project‟s benefits may not be appreciated as benefits by the RTS. But, they are in any case considerable and will be felt at local, regional and national levels. As Mr Copeland said, in addition to delivering benefits at a national level, the TGP is a “fantastic project” for Wellington residents.3 Even RTS agreed that improvements are required on the status quo situation.4 That said, these submissions do address matters raised in the closing submissions for RTS, and which Mr McMahon asked to be addressed. 2.5 Appendix A sets out the full set of modified conditions for the regional consents and NoRs which the Applicants support. 2.6 These conditions have been informed by extensive conferencing5 and cross-party discussion. Structure of closing submissions 3 The closing submissions will address issues as follows: 2 Applicants‟ Opening Submissions, paras 2, 303. 3 Transcript, page 203, lines 18-27; page 204, lines 7-15; Transcript, page 204, line 25 – page 205, line 14. 4 Transcript, page 1163, lines 8-9. 5 The following conferencing statements have been produced for this hearing: five planning conferencing statements, eight erosion and sediment control statements, two traffic and transportation, one road design, one economics, one flood risk, five freshwater ecology, four terrestrial ecology, one marine ecology, two landscape and visual and two noise statements. 042407977/1473210.10 6 Regional consents What the precautionary approach requires to address ecological risks from sediment 3.1 DOC would appear to be maintaining concerns about aspects of modelling and assessment. However, as between the expert witnesses, there are only narrow differences (with the exception of Mr Handyside), with a substantial consensus supporting what is proposed in the Applicants‟ final conditions. How much mitigation is appropriate for freshwater and terrestrial ecology effects 3.2 There is no issue as to the requirement for mitigation, the matters in issue being as to extent. Noise mitigation and conditions in the NoRs 3.3 The Board has tested the matter of appropriate noise mitigation and conditions. Other issues as to resource consent and Notice of Requirement conditions 3.4 There are a range of condition issues pertaining to both the resource consents and the NoRs, as raised by submitters and/or the Board. The particular issues concern: (a) Management plans, outline plans, and certification; (b) Clarity and

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