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])

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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

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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

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APPENDIX B – MANAGEMENT PLAN DIAGRAMS 80

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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.

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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.

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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 precision in key “bottom line” obligations (whether via conditions or management plans);

(c) Consent holder ultimate responsibility for compliance;

(d) Some specific relief pursued by submitters, namely:

(i) A condition sought by KCDC relating to the treatment of the existing SH1;

(ii) Matters relating to the LUDMP (particularly as to an additional crossing point and other cycling and walking matters raised by RTS);6

(iii) Matters raised by certain property owners.

Other matters 3.5 A range of topics were raised, going beyond conditions. These include the relevance of greenhouse gas emissions and alternative routes (including the condition sought by KCDC requiring consideration and implementation of a local road).

6 Landscape and Urban Design Management Plan.

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WHAT THE PRECAUTIONARY APPROACH REQUIRES TO ADDRESS ECOLOGICAL RISKS FROM SEDIMENT

4 As was submitted in opening, the designed and intended adaptive management regime for the TGP reflects an acceptance of the applicability of the precautionary principle. That regime “is the most appropriate resource management response for dealing with the unanticipated in this complex and sensitive receiving environment, in accordance with the precautionary principle”7.

5 In particular, the TGP “will involve substantial earthworks over a long period of time within catchments which drain to the nationally important Pauatahanui Inlet. Further, there is inherent complexity in the analyses required of construction and associated sediment yield, gravity, hydrology, and weather events and risks, and their effects on the ecologies and values of the receiving environments”.8

Reliability of sediment yield and effects modelling and assessment 6 The Applicants‟ opening addressed the principles as to effects‟ assessment (including modelling reliability).9 Those submissions emphasised that consent determination is not a step in isolation, but rather for the purposes of subsequent delivery of sustainable management through the administration and enforcement of consents. 10 The Applicants‟ opening discussed adaptive management principles in that context. The submissions noted that adaptive management principles acknowledged the predictive effects-based approach of the RMA. Prediction is inherent, information is imperfect, and the environment is dynamic. Hence, the RMA allows for risk (including from uncertainty) to be managed. Adaptive management conditions are an established means of doing so.

7 As was signalled in opening, predictions (and associated modelling) of sediment generation and yield, and analysis of its effects on freshwater and harbour ecologies (including harbour modelling) have been central matters in the hearing.

8 DOC‟s opening submissions noted there are uncertainties with the way potential sediment yield and consequential impacts on the Inlet have been assessed on behalf of the Applicants. In particular, DOC criticised the use of the USLE, suggesting that other “superior” models are available. 11 That submission was made notwithstanding

7 Applicant‟s Opening Submissions, para 146. 8 Applicants‟ Opening Submissions, para 111. 9 Applicants‟ Opening Submissions, paras 89 – 94. 10 Applicants‟ Opening Submissions, paras 95 – 97. 11 Legal submissions on behalf of the Director General of Conservation, 23 February 2012 (DOC Opening Submissions), para 12.

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that DOC itself did not commission any alternative modelling assessment, other than to the extent that Mr Handyside also used USLE to estimate sediment yield from parts of the Project.12

9 With respect, DOC‟s case at times was characterised by taking the exercise of effects assessment in isolation from its RMA purpose. This was characterised by questions in cross examination even to the end, of Mr Kyle, when relevant experts had already made appropriate concessions.

10 In any case, the essential consensus of expert opinion was that the further “finer grained” USLE analysis undertaken by Ms Malcolm13 provided a better estimation and reduced uncertainty in modified USLE parameters.14 Ms Malcolm’s evidence15 is that the calculated sediment generation resulting from construction of the Project presented in Technical Report 15 (and relied upon for the assessments by other experts) is accurate or conservative for most catchments.16 Dr Fisher’s evidence is that “the revised estimates…gave 27% less total sediment for the Q10 events compared to the estimates in Technical Report 15 that were used as the basis for assessing the effects in the harbour.”17 Dr Fisher (who has been involved with a number of large construction projects) noted “…this Project has gone as far as any project that I have been involved with to quantify the sediment loads and the uncertainty associated with these.”18

11 Dr Basher confirmed, in response to questions from the Board about the robustness of the sediment yield modelling, that he was “…reasonably comfortable that [the] project, if it goes ahead with stringent conditions and stringent monitoring of performance, then the outcome should be okay…” (although counsel notes that Dr Basher also considered it prudent that some effective baseline monitoring be done before the Project and during the course of the Project – a matter addressed in the proposed conditions).19 Dr

12 Handyside, 3 February 2012, Attachment A. 13 Referred to in the Expert Conferencing Joint Report to the Board of Inquiry – Earthworks and Sediment Control Conference, 20 January 2012, para 8. 14 Expert Conferencing Joint Report to the Board of Inquiry – Earthworks and Sediment Control Conferencing, 20 January 2012, para 8. 15 Malcolm, 27 January 2012, para 9. 16 The evidence noted that sediment generation was under-estimated in the Kenepuru catchment. Further modelling has occurred for this catchment. 17 Fisher, 16 February 2012, para 14. 18 Fisher, 27 January 2012, para 57. 19 Transcript, pages 942, line 24 – page 943, line 10 (The Applicants consider the baseline monitoring proposed through conditions to be appropriate - see condition N.G.40 (E.13A)). In these submissions, condition references are cited by stating the new condition number first (as identified in the attached set). The previous condition numbers

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Basher also agreed that the sediment yield modelling was conservative in that it did not account for the stabilisation trigger measures which are required by conditions.20

12 Accordingly, there is sufficient conservatism in the sediment yield modelling to account for uncertainty. In addition, it was a general outcome of the sediment generation conferencing that:21

“…conditions are the best way of controlling effects and these should be comprehensive and precautionary to manage uncertainty and to protect the sensitive receiving environment.”

13 Differences amongst experts in essence narrowed to perspectives on the corresponding stringency warranted in sediment management controls. Primarily, these relate to the restriction on open earthworks areas, discussed below.

14 All of this endorses what Ms Malcolm explained this in cross examination:22

“… I think the best approach is to think about it using the best, the best, our best estimates of what the baseline sediment is and our best estimate of what the construction sediment is and then to manage that uncertainty with the consent conditions because that‟s where we can make a difference.”

15 Her view was in essence supported by Dr Basher who agreed that management of uncertainty is best done through consent conditions.23

16 Dr Hicks, the section 42A expert, was satisfied the USLE model had been appropriately calibrated (although he had some reservations as to validation matters)24. Even so, in answer to questions from the Board, he confirmed that there is always some uncertainty in sediment data and that it is a hard thing to measure.25 He confirmed that his initial concern with the modelling had faded

(as identified in Ms Rickard‟s condition set of 13 February 2012) are identified in round brackets. 20 Transcript, page 939, lines 1-7. 21 Expert Conferencing Joint Report to the Board of Inquiry – Sediment Generation Experts, 13 February, para 13. 22 Transcript, page 413, lines 12-15. 23 Transcript, page 937, lines 21-24. 24 Transcript, page 1538, line 23 – page 1540, line 22. 25 Transcript, page 1547, line 27 – page 1548, line 2.

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somewhat, as a result of the further work undertaken by the Applicants.26

17 It is submitted that the Board is safely able to proceed on the basis that the sediment yield analysis is conservative, suitably robust, and fit for the purpose of determination of appropriate sediment management controls through conditions.27

Reliability of harbour modelling and effects’ assessment 18 DOC suggested the harbour modelling was of limited scope and subject to uncertainty.28 Again, DOC did not commission any alternative harbour modelling or analysis or call any other harbour modelling expert. Mr Handyside deferred to Mr Roberts on matters associated with the harbour modelling.29

19 Nevertheless, DOC made associated submissions seeking more stringent conditions, including in closing submissions.

20 Mr Roberts was tested in cross examination as to uncertainties in the modelling and remained confident of his conclusions. Amongst other matters, he confirmed that:

20.1 Any uncertainties in the sediment load coming from the streams do not propagate into the harbour model in a linear way. For example, a plus or minus 50% uncertainty in the sediment yield would not result in a plus or minus 50% uncertainty in the sediment depth predictions in the harbour model.30

20.2 It is difficult to be able to identify the level of uncertainty in the harbour model predictions in terms of sediment depth due to the lack of a significant data set of sediment depths to compare the model predictions against. However, he noted that:31

“there‟s a number of factors at play in the model making predictions of the sediment deposition, and we‟ve carried out some sensitivity tests on the parameters describing the sediment physics and found that the sediment deposition is quite insensitive to changes in those numbers and that it‟s really the movement of water that drives where the sediment ends up and I

26 Transcript, page 1548, line 2 – page 1549, line 2. 27 Malcolm, 27 January 2012, paras 12, 14.2; Fisher, 27 January 2012, paras 18, 57. 28 DOC Opening Submissions, 23 February 2012, para 12.4 29 Transcript, page 954, lines 7-11. 30 Transcript, page 470, lines 16-24. 31 Transcript, page 477, line 30 – page 478, line 9.

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feel fairly comfortable that the calibration of the model in terms of predicting water level and currents is pretty good for this sort of system. And one other point I‟d like to make is that any uncertainty that‟s inherent in the deposition or prediction of sediment deposition exists in both the base case and the width [sp] project case and that we‟re doing comparative assessments where the uncertainty would be the same in both cases.”

21 Mr Roberts’ expert view is that “the Porirua Harbour Model is fit for its intended use to predict the likely fate of terrestrial sediment loads entering the harbour during rainfall events on different land use scenarios.”32 Ms Kettles agreed in cross examination that the harbour modelling is a “very useful tool.”33

Should further storm events have been modelled? 22 DOC perceived deficiencies in the range of storm events modelled by the Applicants‟ experts, suggesting that further storm modelling runs should have been undertaken (particularly a Q15, given the relatively recent Q15 storms experienced in Pauatahanui).34

23 Dr De Luca’s evidence was that the range of storm events modelled (the Q2, Q10 and eventually the Q50) gives “a good representation of more likely storms though to unlikely storms and through to the Q50 highly unlikely.”35 As Dr De Luca explained:36

“we have assessed…what we consider to be more likely, we couldn‟t have modelled everything…We believe we have done a robust job of assessing what is likely and unlikely to affect the harbour without modelling everything to the nth degree.”

24 Dr De Luca also noted that, despite the recent Q15 events, the high value inter tidal and shallow sub-tidal habitats located adjacent to the Pauatahanui Stream are very diverse and abundant, and indicate a great range of sediment grain sizes.37

25 Dr De Luca also explained in cross examination why she saw no merit in modelling anything beyond a Q10 and a Q50. She explained that the Q10 had been modelled with 30% more sediment and that this can be considered a greater event than a Q10. That modelling showed that the effects of the Project on events greater than a Q10 are effectively masked by the large baseline sediment.38

32 Roberts, 18 January 2012, para 8. 33 Transcript, page 1017, lines 12-15.

34 Transcript, page 501, line 24 – page 502, line 1. 35 Transcript, page 493, lines 21-23. 36 Transcript, page 502, lines 12-16, page 510, lines 8-11. 37 Transcript, page 502, lines 19-22. 38 Transcript, page 508, lines 12-19.

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In light of that evidence, Ms Kettles‟ lengthy oral description given in the hearing as to the possible effects of a Q15 was demonstrated as speculative by39 Dr De Luca when she reappeared before the Board on 9 March 2012. Dr De Luca confirmed that her opinion had not changed as a result of considering Ms Kettles‟ theories on sediment deposition in a Q15 and in particular, she confirmed that there was no need to model a Q15 or a Q20, as the effects were likely to be less than the Q10 with Project scenario.40

26 In response to earlier concerns expressed by Ms Kettles, further modelling was undertaken by the Applicants, including the modelling of a Q50 event. Due to the high baseline sediment deposition in a Q50, the Project‟s contribution to sediment in that size event was found by Dr De Luca to be negligible41 (and Ms Kettles also agreed with her assessment in that regard).42

27 Accordingly, notwithstanding the further modelling undertaken, the “worst” storms (in terms of greatest deposition in the high value intertidal and shallow sub tidal areas) continue to be the two Q10 events originally modelled by the Applicants – the Q10 in the Duck catchment with a strong43 northerly and the Q10 in the Kenepuru catchment with a strong44 southerly wind.45

28 The Applicants consider that the modelling undertaken of the various storm scenarios is sufficient for the Board to understand and assess effects on marine ecology in the Pauatahanui Inlet.

Are the effects on the Inlet acceptable? 29 Modelling is of course only a limited tool. It is not a substitute for, but an aid to, expert assessment.

30 In opening, the Applicants submitted that given “ … that sediment yield is only a concern because of its ecological effects (rather than in and of itself), the Board should be comforted by the level of agreement between the freshwater and marine ecology witnesses.”46 That submission drew from the conferencing statement recording the extent of agreement then between Dr De Luca and Ms Kettles. Counsel for DOC took some issue with that submission, and indeed it was evident when Ms Kettles presented

39 Transcript, pages 1009-1012. 40 Transcript, page 1507, line 31 – page 1508, line 2. 41 Transcript, page 494, lines 22-23. 42 Transcript, page 1019, line 4.

43 This refers to a 90th percentile northerly wind: para 12.5.4 on page 122 of Technical Report 15. 44 As above, this refers to a 90th percentile southerly wind. 45 Transcript, page 494, line 9 – 12; De Luca, 17 November 2011, paras 17-18. 46 Applicants‟ Opening Submissions, para 169.

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evidence that her opinions were somewhat more divergent from Dr De Luca on this matter.

31 DOC‟s key concern appeared to be whether there would be sufficient protection of the Inlet from sedimentation events during construction of the Project.47

Why Dr De Luca’s opinion should be preferred 32 Cross examination did not unsettle the reliability of Dr De Luca’s conclusion that the effects of the Project in all but the two Q10 rainfall events just discussed48 will have negligible or low adverse effects on marine ecological values.49 In the event of either of the two Q10 events, Dr De Luca considers that any effects are likely to be small in comparison to baseline, and the habitat is likely to recover over a short time frame (i.e. less than five years).50 Her opinion is supported by research in this area.51

33 In coming to those key conclusions, it is noteworthy that Dr De Luca has adopted a conservative approach.52 For example:

33.1 She applied conservative biological effects thresholds by applying the same potential biological effects thresholds (5- 10mm and > 10 mm) across all marine habitats within the harbour;53

33.2 She considered the TSS concentrations at three days, because the most sensitive marine organisms (e.g. pipis) suffer adverse effects at three days when exposed to TSS concentrations at 75 milligrams per litre. As she explained in cross examination, most organisms may start to suffer sub lethal effects after more than nine days at several hundreds of milligrams per litre. Hence, her assessment of TSS was very conservative (Ms Kettles agreed that Dr De Luca’s biological thresholds and TSS thresholds were appropriate);54

47 DOC Opening Submissions, 23 February 2012, para 10. 48 A 10 year (Q10) rainfall event in the Kenepuru/Porirua catchments, with a 2 year rainfall event elsewhere in the Harbour, occurring with strong persistent southerly wind, and during the peak earthworks period and a Q10 event in the Duck/Pauatahanui catchments, with a 2 year rainfall event elsewhere in the Harbour, occurring with strong persistent northerly wind, and during the peak earthworks period. 49 De Luca, 17 November 2011, para 16.

50 De Luca, 17 November 2011, paras 19, 47. 51 Counsel‟s Notes (McIndoe), 9 March 2012. 52 Transcript, page 507, line 17. 53 De Luca, 17 November 2011, para 78. 54 Transcript, page 1016, lines 21-26.

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33.3 All events were modelled using the maximum open earthworks area55, which means that, for off peak construction times, the effects will be less than what Dr De Luca has assessed.56

34 Under cross examination, Dr De Luca explained her approach in this way:57

“My assessment is conservative. It‟s based on what I consider to be best estimates of sediment inputs, best estimates through the model and the modelling outputs guide my assessment. Ultimately it comes down to an expert judgement call on whether I consider 2.958 hectares of inter-tidal habitat to be significant or not. All this highly complex and incredibly time consuming modelling and detailed modelling has been done to guide my assessment and reflects the fact that there are very high values in the harbour to protect. I consider my – as I said, my assessment to be conservative, I‟ve used the minimum thresholds but ultimately the judgement on whether significant adverse effects occurs is based on my expert opinion.”

It is submitted that the Board can take confidence in Dr De Luca’s assessment, particularly given the conservatism built into it.

35 Dr De Luca remained assured in her views that, even in a worst case storm (such as a Q10 in the Duck with a strong northerly), adequate mitigation could be provided:59 “I feel confident that the NZTA, the project team and Greater Wellington could develop offset mitigation that compensates for that temporary loss of 3.9 hectares of habitat that will, over time, recover. It’s been done before. I don't see there’s any issue there.” Even if the loss was twice or three times that amount, Dr De Luca’s opinion remained that adequate compensation could be provided.60 Dr Sim’s evidence assists with understanding the likelihood of such a “worst case” event occurring.

36 Where the experts‟ opinions diverged, it is respectfully submitted that Dr De Luca’s views were demonstrably more reliable. They were more accurately based on the evidence of Mr Roberts (harbour modelling). By contrast, Ms Kettles‟ speculation about the influence of freshwater inflows failed to appreciate Mr Roberts’ explanation about the dominant effects of eddies on the movement of sediment. Dr De Luca’s evidence also demonstrated a thorough

55 De Luca, 17 November 2011, para 83. 56 De Luca, 24 January 2012, para 54.

57 Transcript, page 507, lines 17-27. 58 Counsel understands that the correct figure is “3.9” – see page 22, Table 3, Malcolm, 17 November 2011. 59 Transcript, page 503, line 33 – page 504, line 2. 60 Transcript, page 504, lines 4-6.

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knowledge and understanding of the Harbour and its ecological values and sensitivities. Her opinions on the relative resilience of benthic communities was supported by other scientific studies.

Controls and conditions are appropriately conservative 37 As the Applicants submitted in opening, what should inform thinking on the stringency required in terms of sediment management controls is the nature and scale of risk from sediment to freshwater and marine ecology values. That point was accepted in cross- examination by Mr Handyside61, and the section 42A expert, Mr McLean.62 The same should apply to the marine ecology conditions.

The sediment management controls 38 The Board has heard extensive evidence on the Project‟s comprehensive systems for the management of construction sediment and minimisation of sediment runoff to freshwater and marine environments. As described in Mr Gough’s evidence, these devices include sediment retention ponds, decanting earth bunds, shipping container ponds and silt fences/bio socks.63 These are established devices which are used on construction sites throughout New Zealand.64

The sediment management conditions 39 The Board can take confidence that the proposed conditions will ensure that those systems will be instigated effectively to achieve the RMA‟s purpose and requirements.

40 The conditions proposed have been informed by extensive conferencing. Indeed, eight conferencing statements have been produced on erosion and sediment control matters.65

41 Dr Fisher’s evidence is that the proposed consent conditions are collectively more comprehensive and rigorous than he has seen elsewhere (including the Waterview Connection, Northern Gateway Toll Road, Westwind, Mill Creek, Westchester Drive Projects).66 Indeed, no witness has suggested that another project has gone further in terms of conditions to manage sediment issues.

42 The conditions, as originally conceived of and now in their refined form, have been carefully designed by reference to potential effects.

61 Transcript, page 951, lines 9-20. 62 Transcript, page 1562, line 1. 63 Gough, 18 November 2011, paras 47-53.

64 For example, see Transcript, page 465, lines 8-15 - page 466, lines 5-6. 65 Conferencing Statements dated 7-8 December 2011, 20 January 2012, 3 February 2012, 8 February (with Planners) 2012, 13 February 2012, 15 February 2012, 24 February 2012, 29 February 2012. 66 Fisher, 16 February 2012, para 23.

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The Applicants consider it critical for that connection to be maintained in any further revisions, to ensure the conditions remain connected to their true purpose.

43 Many of the proposed conditions adopt a precautionary approach67, as has been recommended by the erosion and sediment control witnesses.68 These conditions include:69

43.1 An adaptive management approach that has been used on large scale earthworks projects in Wellington, such as Westwind and as is proposed for Mill Creek;

43.2 Baseline monitoring for one year prior to construction to confirm existing sediment loads and baseline monitoring conditions;70

43.3 Stabilisation trials of the proposed permanent earthworks stabilisation methods;71

43.4 A peer review panel comprised of independent experts to advise the consent holder on the preparation of the overarching Erosion and Sediment Control Plan, methodology for monitoring, results from monitoring, adaptive management processes and the key SSEMPs, such as Te Puka;72

43.5 The deployment of erosion and sediment control measures if a stabilisation trigger event is forecast;73

43.6 Conditions restricting the amount of non stabilised earthworks areas in the Pauatahanui Inlet and Onepoto Arm watersheds;74

43.7 Requirements for progressive stabilisation;75

67 For example, conditions N.E.7(g) (E.3.(ii)), N.E.12(f) (E.5(l)). See Transcript, page 939, lines 9-11 (Dr Basher). 68 Transcript, page 941, lines 15-18. 69 Dr Fisher‟s rebuttal evidence discusses many of the proposed conditions and explains how they were developed by reference to other major earthworks projects, including some with sensitive receiving environments (Fisher, 16 February 2012, para 23). 70 N.G.40 (E.13A). 71 N.E.23 (E.31).

72 N.E.6 (E.5A).

73 N.G.42B (from N.E.7), N.PCC.E.43B (new). . 74 N.E.1 and N.E.2 (E.1 and E.2). 75 N.E.9 (E.3C).

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43.8 Requirements for earthworks slope controls;76

43.9 Conditions containing design criteria for the sediment control devices (including a requirement for 70% TSS removal for sediment retention devices with a storm with up to a 10 year ARI);77 and

43.10 Extensive monitoring through the Erosion and Sediment Control Monitoring Plan, including inspections and physical monitoring of erosion device and sediment control measures.78

44 Mr Kyle‟s report and subsequent brief of evidence identify important features of adaptive management conditions.79 Mr Kyle agreed in cross examination that (subject to some relatively confined changes he recommends) these features were in essence reflected in the proposed conditions.80 It is submitted that the conditions in relation to management of sediment, as now proposed by the Applicants, fully address those features (although the Applicants do not entirely agree with what Mr Kyle has proposed by way of amendments, as is addressed later in these submissions).

45 Differences between experts and parties as to conditions have significantly narrowed with the aid of several rounds of conferencing.81 In essence, these differences have narrowed to two areas:

45.1 The sediment management experts were not able to fully agree on the final non-stabilised earthworks conditions (N.E.1 and N.E.282); and

45.2 Whilst the sediment experts have agreed on a winter works condition, the planning experts have proposed an alternative condition to address this issue.

46 In addition, Mr Kyle, Dr Hicks and Mr McLean have each recommended refinements to the conditions proposed by Ms Rickard (especially with a view to sharpening clarity in some key

76 N.E.10 (E.3D). 77 N.E.8 (E.3A), N.PCC.E.24(c) (E.40A). 78 N.G.39 (E.14A and 14.B) 79 Kyle, Part 2 of section 42A report, page 48; Kyle; 6 March 2012, para 2.5.

80 Counsel‟s Notes (McIndoe), 12 March 2012. 81 Expert Conferencing Joint Report to the Board of Inquiry – Erosion and sediment, 24 February 2012 and 29 February 2012; Expert Conferencing Joint Report to the Board of Inquiry – Planner (conditions) Expert Conferencing, 1 March 2012. 82 These were formerly conditions E.1 and E.2.

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obligations). These are agreed to some extent, as is addressed later in these submissions.

Non-stabilised earthworks areas 47 The proposed conditions, which set limits on non-stabilised earthworks areas, reflect the collective opinions of the experts who participated in the lengthy rounds of expert conferencing, with the exception of Mr Handyside.83 The areas identified in the proposed conditions were based on those proposed by Ms Malcolm which were in turn based on the revised sediment estimate. They are therefore linked to the assessment of effects.84

48 Mr Handyside has proposed an alternative condition (DOC‟s „Option One‟) which would regulate open earthworks areas through a calculation based on the percentage of rock versus fine material. This alternative was not able to be tested through the cross examination of Mr Handyside (as it was produced after he appeared), not tested by counsel for DOC in cross-examination of Ms Rickard and was not supported by DOC‟s own planning witness, Dr Solly.85 Ms Grant (for GWRC) and Dr Solly both considered it fraught with uncertainty and complexity.86

49 Self-evidently, Mr Handyside‟s alternative is fraught with complexity and uncertainty. Notably, also, the expert‟s conferencing statement records Dr Fisher’s concerns that what Mr Handyside proposed “doesn’t directly link to the environmental effects, which are different for different streams due to harbour hydrodynamics and location of sensitive receiving environments.”87

50 To address the substance of Mr Handyside‟s concern, Dr Fisher proposed that, when preparing the Erosion and Sediment Control Plan, the consent holder should be required to “...consider soil erodibility related to soil types, slopes and sensitivity of receiving environments and use this in preparing E & SC measures – e.g. construction staging, open areas, top soil/subsoil stripping and

83 Expert Conferencing Joint Report to the Board of Inquiry – Erosion and sediment, 24 February 2012, Item 1. 84 Transmission Gully, Revised USLE Analysis, 20 January 2012, appended as Appendix A to the Expert Conferencing Joint Report to the Board of Inquiry – Erosion and sediment, 20 January 2012. 85 Counsel‟s Notes (Hassan), 9 March 2011. 86 Counsel‟s Notes (Hassan), 12 March 2012. 87 Expert Conferencing Joint Report to the Board of Inquiry – Erosion and sediment, 24 February 2012, Item 6.

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device selection.” 88 This recommendation has now been incorporated into the proposed conditions.89

51 Dr Fisher considers that the bare areas have been adequately defined (including in terms of soil erodibility) by the modelling and construction program presented by Ms Malcolm and Mr Edwards.90 Soil erodibility is a central part of the USLE methodology, and has been assessed in Ms Malcolm’s revised sediment estimates at 10m intervals along the works stages that were assessed, and therefore forms the basis for the earthworks areas that are proposed.

52 Mr Handyside‟s „Option Two‟ was presented for the first time in DOC‟s closing submissions. This option effectively takes conditions N.E.1 and N.E.2 and drastically reduces the allowable open area. There is no evidence to support this option, and no analysis of its implications for the construction programme and associated effects. As with DOC‟s „Option One‟, Option Two has not been developed with an understanding of the sediment effects of this particular Project.

53 On the basis of their experts‟ analysis, the Applicants consider that the non-stabilised areas proposed (and now incorporated into the proposed conditions) are appropriate and seek that conditions N.E.1. and N.E.2 be confirmed, as now proposed.

Winter works condition 54 A second issue which has attracted significant attention in the hearing is the question of whether a winter works condition is appropriate. DOC‟s closing submissions sought a condition restricting winter works.

55 There appears to now be consensus amongst all the relevant experts (both planners and sediment experts) that some works should be allowed to occur in winter. 91 This is consistent with the evidence of Mr Brabhaharan that it is in fact highly desirable for some Project earthworks (such as in greywacke) to occur in winter. This is because the optimal moisture content for construction using rock is more readily achieved in winter.92

88 Expert Conferencing Joint Report to the Board of Inquiry – Erosion and sediment, 24 February 2012, Item 7. 89 N.E.12(h) (E.5).

90 Expert Conferencing Joint Report to the Board of Inquiry – Erosion and sediment, 24 February 2012, Item 8. 91 Expert Conferencing Joint Report to the Board of Enquiry – Erosion and Sediment Management, dated 15 February 2012, Item 3, page 4. 92 Transcript, page 371, lines 5-18.

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56 The sediment experts recognised that “certain activities are acceptable and could occur during the winter months based on low sediment generation.”93

57 It is submitted that the best approach to the issue is as recommended by the planning experts‟ conferencing statement.94 That is for the ESCP and SSEMP conditions to require the inclusion of “details of additional specific measures that have been designed to address seasonal weather variations, in particular where bulk earthworks will be undertaken at any time between 30 May and 1 September.”95

58 The Planners agreed that:96

“…the ESCP condition should also include provision for a heightened awareness of increased maintenance, monitoring and review of non- stabilised areas reflective of the increased likelihood of soil saturation in winter – including a meeting with the Manager and PRP involvement prior….”

59 It is considered that the Planners‟ agreed position on a winter works condition better reflects the sediment experts‟ intention that certain activities should occur in winter (as compared to the sediment experts‟ own proposed condition). The Applicants support the changes proposed in the Planner‟s conferencing statement and understand that the updated conditions now reflect their recommendations.97

Board Minute 60 On 15 February, the Board issued a Minute relating to proposed sediment conditions.98 The Minute recorded that the Board was contemplating the inclusion of two possible conditions relating to the control and discharge of sediment. These were:

93 Expert Conferencing Joint Report to the Board of Enquiry – Erosion and Sediment Management, dated 15 February 2012, Item 3, page 4. 94 Expert Conferencing Joint Report to the Board of Inquiry – Planner (conditions), dated 1 March 2012. 95 Expert Conferencing Joint Report to the Board of Inquiry – Planner (conditions), dated 1 March 2012, para 26. Required by conditions N.E.12(j)(E.5), N.G.26(b)(xiii) (G.15A), N.PCC.E.39(b)(xiii) (G.42), N.PCC.E.20(j) (E.42). 96 Expert Conferencing Joint Report to the Board of Inquiry – Planner (conditions), dated 1 March 2012, para 27. 97 Conditions N.E.12(k) (E.5) and N.PCC.E.20(k) (E.42). 98 Minute of the Board, dated 15 February 2012.

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 A condition requiring all runoff to be “captured” (i.e. to be collected and contained in a run-off treatment system) 99 (Bullet point 1); and

 A condition requiring that 70% of sediment contamination be removed (Bullet point 2).

61 Commissioner Howie questioned several of the experts on these concepts.

62 In terms of Bullet point 1, it is acknowledged that the last set of conditions which were released100 did not explicitly include such a requirement. However, one of the ESCP objectives did refer to the capturing of runoff in an indirect sense:101

“Use BPO to design and install a variety of perimeter controls for the management of flows of water and sediment and sediment retention.”

63 Dr Fisher and Ms Rickard have reflected on the Board‟s Minute further. Ms Rickard now proposes the following additional objective for the Erosion and Sediment Control Plan:102

“Treat all sediment laden discharges from the site arising from the works using erosion and sediment control measures implemented in general accordance with the ESCP and any relevant SSEMP”

64 This objective reflects the need for sediment laden discharges to be treated by erosion and sediment control measures. However, the objective recognises that, whilst runoff can be collected or contained for the majority of devices proposed to be used in the Project (i.e. 95% of devices), the proposed silt fences do not collect and contain runoff.103

65 It is submitted that Bullet point 2 is already addressed by one of the proposed design criteria for control devices, which is secured by conditions104 and reads:

“Sediment retention device TSS efficiencies of at least 70% removal for 105 all storm events with up to a 10 year ARI.”

99 Transcript, page 429, lines 17-19. 100 i.e. those released on 5 March. 101 N.E.7(e) (E.3(f)). That condition has now been amended slightly, and now reads as follows: “Design and install a variety of perimeter controls for the management of flows of water and sediment and sediment retention, using BPO.” 102 N.E.7(f) (E.3). 103 Transcript, page 431, lines 15-17. 104 N.E.8(c) (E.3A(e)), N.PCC.E.24(c) (E.40A(g)). 105 N.E.8(c) (E.3A(e)).

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Tables L5 and L6 66 During his evidence to the Board, Mr McLean discussed tables L5 and L6, which form part of the draft ESCMP. A further version of these tables was provided to the EPA on 12 March 2012 and the Applicants have reflected these updated versions in the condition requirements.106

Is a mixing zone condition appropriate? 67 One of the areas of disagreement between the planning witnesses during the hearing related to the appropriateness of a “mixing zone” condition. Ms Grant (for GWRC) had proposed such a condition for the discharge permits.107

68 Dr Solly, Mr Kyle and Ms Rickard did not consider the proposed condition appropriate, on the basis that “most of the discharges will relate to temporary activities, and this aligns with the presumption in section 107.”108

69 All the planners are agreed that the principle of BPO for sediment management and discharge is appropriate.109 The Applicants submit that the conditions already adequately provide for this principle. For example, conditions require the consent holder to “Minimise non- stabilised earthworks using BPO”110 and to “Design and install a variety of perimeter controls for the management of flows of water and sediment and sediment retention using BPO.”111

70 The conditions now provide that the SSEMPs (which are also to be certified by GWRC) must identify the location of all discharge points to watercourses.112 Thus, GWRC will know where those locations are and can conduct testing with respect to water quality standards, should it deem that necessary. The Applicants understand that GWRC accepts this condition and no longer seeks a mixing zone condition.

Marine ecology conditions 71 Despite the best of design and management regimes, it is of course not possible to eliminate weather-related risks. However, the conditions include a framework to respond to any unexpected

106 N.G.40(i) (E.13A). 107 Grant, 21 December 2011, paras 95.1-95.2 as amended by Grant, 21 February 2012, paras 7-8. 108 Expert Conferencing Joint Report to the Board of Inquiry – Planner (conditions) Expert Conferencing, dated 1 March 2012, para 32.

109 Expert Conferencing Joint Report to the Board of Inquiry – Planner (conditions) Expert Conferencing, dated 1 March 2012, para 32. 110 N.E.7(b) (E.3(b)), N.PCC.E.23(b) (E.40(b)). 111 N.E.7(e) (E.3(f)), N.PCC.E.23(e) (E.40(f)) 112 N.G.26(b)vii, N.PCC.E.39(b)vii (G.42).

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sediment discharges into the Inlet in the event of a storm. For example:113

71.1 Additional marine habitat monitoring will occur in the event of a “trigger event”;

71.2 The consent holder will review those results, and in the event that adverse effects are identified which can be attributed to the Project, the consent holder will develop appropriate contingency plans and/or remedial measures that are commensurate with the scale and nature of the effects generated, but allowing for measures offered as part of the Project; and

71.3 If it is not practicable (in the opinion of a suitably qualified ecologist) to develop such contingency plans and/or remedial measures, a mitigation programme must be developed and implemented. The mitigation programme must be developed in consultation with key stakeholders, including DOC. The proposed condition sets out some options for possible mitigation.

Conclusion on sediment and harbour conditions 72 It is respectfully submitted that the quest by DOC (and some of its witnesses) for even greater stringency in conditions was demonstrated as excessive. The consequences of acceding to DOC‟s submissions114 would be to impose disproportionate cost and delay and risk for the timely delivery of the Project for people and communities that would not promote sustainable management.

73 Conversely, it is submitted that the proposed conditions properly reflect the precautionary principle. The controls are suitably conservative, given what is known and not fully known as to sediment yield and the sensitivities of the ecologies of the Harbour and streams.

74 Finally, it is noteworthy that, in the long term, there will be positive effects arising from the Project in terms of the Harbour‟s sedimentation levels. Dr De Luca and Ms Kettles agreed that riparian planting proposed for the Project will, in the long term, lead to reduced sedimentation rates in Pauatahanui Inlet.115

75 The proposed conditions strike the correct balance as intended by section 5.

113 Conditions N.G.47 – N.G.49 (M.6-M.8). 114 DOC Opening Submissions, para 16. 115 Expert Conferencing Joint Report to the Board of Inquiry – Marine Ecology, 8 December 2011, para 16.

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HOW MUCH MITIGATION IS APPROPRIATE FOR EFFECTS ON FRESHWATER AND TERRESTIAL ECOLOGY?

Some debates about models 76 There was some debate as to the appropriateness or otherwise of choices of different models, and as to some principles of ecological assessment, namely:

76.1 For freshwater ecology, the Stream Ecological Valuation (SEV) tool used by Dr Keesing to calculate the extent of stream rehabilitation mitigation required for the Project versus the “Habitat Hectare Model” preferred by Dr Ogilvie (DOC‟s witness). However, Dr Ogilvie also acknowledged that the Applicants‟ objective of no net loss of ecological values is adequately met by the SEV model;116

76.2 For terrestrial ecology, whether biodiversity is a subset of ecology and how is it relevant under the Act, and whether or not a biodiversity offsetting model should be employed.

77 It is respectfully submitted that such debates do not need to trouble the Board, and the appropriate focus in each case should be on outcomes.

Freshwater ecology issues 78 Freshwater ecology issues are important to the consideration of the Project. They were the primary driver for the changes made to the Regional Freshwater Plan. Several experts gave evidence on these matters. However, differences have largely been resolved.117

79 Dr Ogilvie rightfully acknowledged that issues as to choice of SEV versus Habitat Hectare models can be put to one side, and the appropriate focus should be on the outcomes proposed, and whether those outcomes are adequate for mitigating the Project‟s effects.118

80 Dr Keesing’s evidence is that the quantum of mitigation required for the Project is 26,500 linear metres.119 Some 10,000 m of affected intermittent and perennial stream will be mitigated by stream remediation of nearly three times that length. The loss of

116 Transcript, page 1063, lines 2-4. 117 Legal submissions on behalf of Kapiti Coast District Council, dated 22 February 2012 (KCDC Opening Submissions), para 2.1; DOC Opening Submissions, para 17.

In cross examination Dr Joy confirmed he was comfortable with the amendments proposed by Dr Keesing to condition G.15MM (This condition is now N.G.55. N.G.56 and N.G.57): Transcript, page 727, line 27 – page 728, line 9. 118 Transcript, page 1068, line 8. 119 Provided for in conditions N.NZTA.53 (NZTA.47C) and N.G.31(G.15G).

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6,000m of ephemeral system is mitigated by the protection of some 17,000 linear metres of stream.120 Dr Ogilvie confirmed, that, in terms of outcomes he was reasonably comfortable with what had been proposed.121 (Indeed, he acknowledged that he thought there was an opportunity to “sort out the sins of the past” through the detailed design phase of the Project‟s mitigation package).122

81 The Applicants submit that the evidence demonstrates that the proposed mitigation, which has been calculated using the SEV model, is more than adequate for mitigating the Project‟s effects on freshwater ecology (including biodiversity) values. Furthermore, providing fish passage through the existing Wainui Culvert will lead to additional habitat (not included in the above mitigation calculations) being made available.

Is fish passage required to be provided for in all culverts? 82 At the time that Dr Keesing and Dr Ogilvie were cross examined, there was some disagreement between them as to whether fish passage should be provided in all culverts. Dr Ogilvie considered this necessary as part of a precautionary approach, whilst the Applicants‟ expert, Dr Keesing, did not.123

83 Since then, the experts have met and considered this issue further. Discrepancies in relation to the classification of streams in the Te Puka catchment have now been clarified. Dr Ogilvie has now indicated that, in light of the clarification provided, he is willing to withdraw his recommendation that all culverts within the Project footprint should be provided with fish passage requirements.124 Dr Ogilvie notes that his recommendation is conditional upon two things:

83.1 One is a pre-construction fish survey being carried out in the tributaries of the Horokiri and the Te Puka streams.125 That recommendation is accepted and provided for in conditions.126

83.2 His second recommendation is that an Ecological Peer Review Panel be formed. The Applicants (supported by Ms Rickard

120 Keesing, 20 January 2012, para 32. 121 Transcript, page 1056, line 11. 122 Transcript, page 1066, lines 14-32. 123 Transcript, page 535, lines 3-7; page 552, lines 28-31; Expert Conferencing Joint Report to the Board of Inquiry – Freshwater Ecology , 31 January 2012, para 10.

124 Expert Conferencing Joint Report to the Board of Inquiry – Freshwater Ecology, 29 February 2012, para 7. 125 Expert Conferencing Joint Report to the Board of Inquiry – Freshwater Ecology, 29 February 2012, para 7. 126 N.G.51 (G.15.II).

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and Ms Grant for GWRC127) do not consider that such a Panel is required.

84 The Applicants consider that Dr Ogilvie‟s concerns in relation to fish passage need not be tied to the creation of a peer review panel and are adequately addressed by the proposed consent condition N.G.51.128 This requires the consent holder to undertake a pre- construction survey to determine fish passage requirements for each tributary of the Te Puka and Horokiri Stream that will be culverted. This condition will ensure that tributaries that do actually hold viable fish populations immediately prior to construction can be confirmed and passage requirements accounted for, prior to construction.129

Should a peer review panel be provided for freshwater ecology? 85 The freshwater ecology experts recommend that an ecological peer review panel should be implemented for freshwater ecology issues, in order to provide advice on the habitat recreation and fish passage methods proposed, in the Te Puka and upper Horokiri catchments.130 Mr Kyle explained that he also saw this as valuable (on the basis of his experience in the Marlborough and West Coast districts).131

86 This is opposed as it is unjustified. The case for a peer review panel for sediment management issues is quite different. 132 It is warranted because of the national significance of the Inlet and the high degree of public interest in this issue. The nature of the issues concerning fish passage or other freshwater ecology issues in the Te Puka or Horokiri streams are not of the same order.

87 In any event, provision of fish passage through Wainui Culvert reduces the risk associated with success of the Te Puka works. Retrofitting of this culvert is not required for the purposes of mitigation of effects, and so provides a “back stop” that sufficient habitat will remain available.

88 As Ms Grant (team leader in GWRC‟s Environmental Regulation Department) confirmed, GWRC has expertise in house and has recourse to independent experts, when it considers those necessary.133 She did not consider that an ecological peer review

127 Counsel‟s Notes (Hassan), 12 March 2012. 128 N.G.51 (G.15.II). 129 Keesing, 15 February 2012, para 14. 130 Joint Conferencing Statement, 9 February 2012, paras 12-14 and Annexure A.; Reiterated in Expert Conferencing Joint Report to the Board of Inquiry – Freshwater Ecology, 29 February 2012, para 13. 131 Counsel‟s Notes (McIndoe), 12 March 2012,. 132 Condition N.E.6 (E.5A). 133 Transcript, page 880, lines 18-30.

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panel is necessary on a wider basis for all ecological matters.134 Perhaps this resource capacity contrasts with the examples Mr Kyle gave.

89 Ms Grant supported Ms Rickard’s proposed alternative which requires the requiring authority to demonstrate that an independent peer review has been undertaken before submitting the relevant ecological documentation to GWRC (who will then conduct its own review).135 The Applicants support the independent peer review process proposed by Ms Rickard.136

What is the value of the re-vegetation proposed in the upper tributaries? 90 At the time Dr Ogilvie gave evidence, a further unresolved issue between him and Dr Keesing related to the value of the proposed planting in the upper tributaries.137 This difference of opinion appears to have been resolved through their final conferencing:138

“The experts are agreed that the tributaries (and lower main stem) of the Te Puka and Horokiri streams will benefit from the terrestrial re- vegetation actions proposed. While it is possible (but by no means certain) that the overall run-off to these tributaries may reduce, we consider that they will benefit for a number of reasons, including reduced sedimentation, reduced peak flows, reduced incursion of pasture grasses, increased shading, lower water temperatures and reduced fluctuation in water temperature, and increased inputs of organic matter which provide food and habitat for vertebrate and invertebrate species.”

91 Finally, the experts concluded that they were reasonably confident that the re-vegetation together with provision of fish passage on appropriate culverts, will achieve the Project‟s aim of no net loss in biodiversity value, in the ephemeral tributaries.139

92 The RMA does not impose a no net loss duty or expectation. As such, it is submitted that this can be counted as a benefit of the Project.

Terrestrial ecology issues 93 Terrestrial ecology issues have also been an important feature of this hearing. The quantum of mitigation proposed by the Applicants

134 Transcript, page 880, lines 11-17; Counsel‟s Notes (Hassan), 12 March 2012. 135 Transcript page 880, line 31 – page 881, line 5; Expert Conferencing Joint Report to the Board of Inquiry – Planner (conditions) Expert Conferencing, para [33]. 136 Conditions N.G.56(b) (G.15MM), N.G.57(b) (G.15MM).

137 Transcript, page 1048, lines 10-23. 138 Expert Conferencing Joint Report to the Board of Inquiry – Freshwater Ecology, 29 February 2012, para 9. 139 Expert Conferencing Joint Report to the Board of Inquiry – Freshwater Ecology, 29 February 2012, para 10.

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has been criticised for being insufficient and also for reflecting an unnecessarily precautionary approach140 (i.e. because of the assumption made that all vegetation within the designation footprint will be at risk).

94 Mr Fuller has explained the reasons for his conservative approach in Section 10.1 of Technical Report 11. The designation area141 has been determined to contain all construction related activities which include temporary access tracks, disposal sites, sediment detention devices, bridge construction and so on. Therefore, the extent of clearance will be greater than just the road footprint and cut and fill batters.142 This is taken into account in Mr Fuller’s assessment.

95 The terrestrial ecology measures are extensive and go beyond what Mr Fuller calculated is required for mere mitigation of effects. They will result in real benefits for the long term future of the affected valleys and catchments. The desire by some opposing parties for further terrestrial ecology measures, whilst likely to provide additional benefits for the ecology of the area, are unrelated to, and not justified by, the Project‟s effects.

Is biodiversity a subset of ecology and how is it relevant under the Act? 96 Counsel for DOC explored the concept of biodiversity with a number of the Applicants‟ witnesses. The Applicants‟ witnesses view biodiversity as a subset of ecology143, whereas the DOC witnesses view it the other way round.144 This difference in view led to criticism by DOC witnesses of the assessment undertaken by the Applicants.145

97 Mr Fuller’s ecological assessment has not ignored biodiversity values. Rather, his assessment, in comparison to Dr Baber‟s, looks beyond species and diversity and also considers the physical habitat aspects of ecological processes and functions.146 In comparison, Dr Baber‟s evidence was almost entirely focussed on biodiversity and

140 Transcript, line 24 – page 1097 - page 1098, line 1; page 1115, lines 11-25 (Baber). 141 Mr Fuller advised on 13 March 2012 that he has recalculated the area of native vegetation within the designation as 124 ha (rather than 120 ha). Mr Fuller did not consider this change material. This information was provided to the parties and the EPA on 13 March 2012. 142 In comparison, Dr Baber suggested that the road footprint, plus a 50 metre buffer would be sufficient: Transcript, page 1093, lines 15-19.

143 For example, Transcript, page 587, lines 25 – page 588, line 14 (Fuller); Transcript, page 563, lines 4-8 (Keesing). 144 For example, page 1051, lines 8-9 (Ogilvie). 145 Baber, 21 December 2011, para 25. 146 Fuller, 20 January 2012, para 103.

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lacked consideration of wider ecological issues and mitigation benefits.147

98 As Mr Fuller noted, biodiversity is certainly relevant under the Act.148 Both regional councils and territorial authorities have functions in relation to indigenous biodiversity.149 Regional policy statements also contain requirements in relation to indigenous biodiversity.150

99 However, the RMA151 requires an assessment of a site‟s ecology, which quite rightly must consider how changes to a site‟s ecology will impact on a site‟s biodiversity. This is appropriate, given the Act‟s purpose.

100 The weight to be accorded to effects on biological diversity is a matter for the Board. The Applicants submit that, in light of the RMA framework, effects on biodiversity should be assessed as one of a range of potential ecological effects.

101 It is submitted that Mr Fuller’s assessment is consistent with the recognition given to ecology and biological diversity in the Act, and should be preferred.

Should a biodiversity offsetting model have been used and is the quantum of mitigation to be provided appropriate? 102 Dr Baber suggests that the mitigation package developed by Mr Fuller is deficient because it was not informed by a biodiversity offset model, 152 such as the Habitat Hectare Model. However, both Dr Baber153 and Mr Fuller154 consider there are, or were at the time of the Project‟s assessment, difficulties with the Habitat Hectare Model.

103 On the basis of Mr Fuller’s expert opinion, the Applicants do not consider the mitigation package proposed to be lacking due to a biodiversity offset model not having been used. While Dr Baber preferred to use a biodiversity offset model, he accepted that the

147 Fuller, 20 January 2012, para 103. 148 Biological diversity means “the variability among living organisms, and the ecological complexes of which they are a part, including diversity within species, between species and of ecosystems” (section 2(1) RMA). 149 Sections 30(1)(ga), 31(b)(iii). 150 Section 62(1)(i)(iii).

151 See sections 5(2)(b), 6(c), 7(d) and the Fourth Schedule to the Act. 152 Baber, 21 December 2011, para 25. 153 Transcript, page 1114, lines 1-5. 154 Fuller, 20 January 2012, paras 123-124. See also Transcript, page 593, lines 12- 29.

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proposed Project mitigation is adequate in terms of a no net loss objective.155

104 As biodiversity compensation, Dr Baber also recommended offsite pest control, a coastal bird baseline survey and monitoring and roost enhancement. 156 Other than those items, Dr Baber accepted that the NZTA mitigation package adequately compensates or indeed compensates to the greatest extent practicable for the effects of the Project.157 In a general sense then (as Dr Baber acknowledged), whichever model is applied to the mitigation calculations, broadly similar mitigation outcomes are achieved.158 The Applicants do not consider Dr Baber‟s suggested measures are required in order to compensate for effects of this particular Project.

105 Regardless of how it was determined, the Applicants submit the mitigation proposed is substantial, goes further than is required by the RMA (by aiming for no net loss of values), and will lead to undisputed long term benefits, particularly through the retirement and revegetation of large areas of the Porirua Harbour watershed. Indeed, pursuant to the Project, a minimum of 534 hectares of land will be set aside for mitigation159, which is more than double what Mr Fuller calculated as being actually required to mitigate for adverse effects on terrestrial ecology.160

106 Finally on this matter, counsel for KCDC has suggested deletion of the word “may” in condition N.NZTA.55.161 While this might appear an inconsequential matter, the NZTA does not agree to this change. N.NZTA.55 was carefully drafted to acknowledge that it is not the NZTA who will come to own any land acquired for the Project, but the Crown. Accordingly, the NZTA cannot agree to a condition which would bind the Crown to impose a protective covenant.

What pest management programmes should be provided? 107 In the latest conferencing statement, the ecology witnesses agreed to two new conditions in relation to pest management:162

107.1 One condition recommended the ongoing management of areas protected by way of covenant or similar and is to require the control of deer, goats, pigs and weeds to levels

155 Transcript, page 1118, lines 14-15. 156 Transcript, page 1119, lines 21-31. 157 Transcript, page 1119, line 32 – 1120, line 1. 158 Transcript, page 1120, lines 2-4.

159 N.NZTA.53 (NZTA.47C), N.G.31 (G.15G). 160 Fuller, 20 January 2012, para 9.5. 161 KCDC Closing Submissions, para 2.11. 162 Expert Conferencing Joint Report to the Board of Inquiry – ecology, 2 March 2012, para 17.

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that are necessary to achieve the conditions of the relevant designation and associated consents, and to prevent significant loss of existing natural values.163 This condition has been accepted by the NZTA.164

107.2 A second condition proposed by the ecologists (which would also apply to areas protected by way of covenant or similar) would require that, in the event that GWRC are carrying out possum control operations in the Akatarawa-Whakatikei forest, the consent holder make the retirement areas within the Te Puka and Horokiri Valleys available for these operations and contribute, as appropriate.165 This condition is opposed by the Applicants.

108 Ms Rickard does not consider that the second condition is required. She considers the condition to be unenforceable, not clearly related to an effect and open ended.166 The NZTA agrees. In the absence of a discernable effect, it is submitted that it would be inappropriate for a condition to require the NZTA to contribute public funds from the Land Transport Fund to pest control operations which are conducted entirely at the discretion of GWRC and arise out of the management of GWRC‟s own land. GWRC is not seeking this condition.

109 DOC and KCDC advocate for long term (i.e. 10 years) or ongoing (i.e. in perpetuity) pest control management measures.167 They also suggest offsite pest control is necessary.168 For example, both Dr Baber and Ms Myers suggest that animal pest control measures should be undertaken by the NZTA in the adjacent Akatarawa- Whakatikei Forest.169

110 Mr Fuller was alone amongst the other ecologists in being satisfied that the proposed conditions are sufficient to address the effect that animal pests, including predators, would have on the success of

163 Expert Conferencing Joint Report to the Board of Inquiry – ecology, 2 March 2012, para 17. 164 N.NZTA.53(h) (NZTA.47C), N.G.31(h), (G.15G). 165 Expert Conferencing Joint Report to the Board of Inquiry – ecology, 2 March 2012, para 17. 166 The ecologists suggested condition was provided for as N.NZTA.54 on the 7 March 2002, Combined Planner Comments version of conditions. The comments column explained why Ms Rickard did not consider that such a condition was appropriate. N.NZTA.54 has now been deleted from the attached set of conditions.

167 DOC Opening Submissions, 23 February 2012, para 40; KCDC opening submissions, 22 February 2012, paras 3.20-3.21. 168 DOC Opening Submissions, 23 February 2012, para 41. 169 Myers, 21 December 2011, para 6.21; Baber, 21 December 2011, paras 82, 86c, 90c.

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mitigation in terms of long term adverse effects on indigenous vegetation and wildlife.170

111 Mr Fuller is supportive of a focussed pest control programme which is targeted at a particular outcome. For example, he supports predator control where it is required to provide specific benefits for key species, such as the mammalian predator control measures proposed at the relocation sites for lizards.171

112 However, Mr Fuller does not consider that a wider pest management operation is required. Mr Fuller’s view is that all adverse effects on terrestrial ecology can be mitigated within the Project area (with the possible exception of bats). He does not agree that carrying out activities in perpetuity at other locations, can be justified by the effects of this Project.172 In answer to a question from Counsel for DOC on this issue, Mr Fuller said:173

“The other situation you‟re talking about is a general pest control operation, a wide, broad scale operation and the submissions from the department talked about pest control of an unspecified type over an unspecified period for unspecified numbers of animals in land adjacent to the site, the Akatarawa Whakatiki. I see that as potentially being a huge sink for resources that may or may not have any measurable outcome and to require that to occur in perpetuity is not warranted given the level of mitigation that we are already providing.”

113 Mr Fuller explained, during questioning from the Board, that a pest control regime in adjacent land might have been appropriate if the NZTA had not been able to obtain areas within the Te Puka and Horokiri Valleys for mitigation and were left solely with the areas within the designation footprint to work with. In such a circumstance, other types of mitigation opportunities would have needed to be examined, such as managing browsers in adjacent forests.174 However, that is not the situation faced for this Project.

114 It is respectfully submitted that what DOC and KCDC (and its experts) have pursued amounts to no more than putting desired shopping list items on to the Land Transport account. They are not legitimate RMA requirements. On the basis of Mr Fuller’s evidence, the Applicants do not consider that an offsite pest management programme is appropriate, nor do they consider that wide pest management programmes should be required in perpetuity (i.e.

170 Expert Conferencing Joint Report to the Board of Inquiry – ecology, 2 March 2012, para 20. 171 Transcript, page 601, lines 5-10. This predator control is secured by N.G.37(b). 172 Fuller, 20 January 2011, para 73. 173 Transcript, page 601, lines 10-18. 174 Transcript, page 636, lines 10-18.

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beyond the protection measures already offered). Rather, any pest management programmes should be tied to the effects of the Project. The Applicants consider that the existing conditions are sufficient to adequately mitigate effects. Those conditions provide:

114.1 That the NZTA will implement measures so as to ensure that the land required for mitigation of the effects of the Project will be protected in perpetuity. Mechanisms to achieve protection of the land will, amongst other things, include control of deer, goats, pigs and weeds to levels that are necessary to achieve the conditions of the relevant designation and associated consents and to prevent significant loss of existing natural values; 175

114.2 Mammalian predator control prior to and during establishment of lizards at relocation sites;176 and

114.3 That the LUDMP must include detailed specifications relating to pest animal management.177

What is the appropriate period for maintenance planting? 115 The conferencing between ecologists also considered the appropriate period for maintenance and monitoring of the ecological planting.178 Mr Fuller’s view is that a three year maintenance period is appropriate. He recommends that at the completion of the three year period, a review of the success of the planting be carried out to ensure it has met the mitigation requirements set out in the EMMP. The results of the review must be provided to the Manager for certification. Mr Fuller proposes a further review at ten years.179 Mr Fuller’s recommendations have been informed by his involvement in the early retirement sites in the Duck, Ration and Horokiri streams180 (which have been undertaken pursuant to the existing Transmission Gully designations).

175 N.NZTA.53 (h) (NZTA.47C), N.NZTA.55 (NZTA.47D), N.G.31(h) (G.15G), N.G.31A. 176 N.G.37(b). 177 N.NZTA.46(d)v (NZTA.48). 178 Expert Conferencing Joint Report to the Board of Inquiry – ecology, 2 March 2012, paras 21-22. 179 Expert Conferencing Joint Report to the Board of Inquiry – ecology, 2 March 2012, para 21. Secured by condition N.H.36. 180 Expert Conferencing Joint Report to the Board of Inquiry – ecology, 2 March 2012, para 21.

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116 The other ecologists seek a five year maintenance period followed by a ten year review.181 The Applicants do not consider this to be justified on the evidence.

117 At this time it is also convenient to comment on the maintenance period for the landscape mitigation planting. A maintenance regime (including monitoring and reporting requirements) of three years is proposed by the Applicants.182 Mr Lister considers this timeframe to be sufficient.183

118 Counsel for KCDC proposed a five year maintenance period for landscape mitigation planting in his submissions.184 However, Ms Peake confirmed that most roading projects have a maintenance period of only two to three years.185

119 The Applicants submit that the opinions of Mr Fuller and Mr Lister should be preferred. The conditions they support draw appropriately from experience, are consistent with practice elsewhere, as well as being well informed of the requirements of this environment. They are balanced and proportionate.

Is a baseline survey of coastal birds required? 120 Dr Baber recommended that a survey of coastal birds be conducted so as to establish a baseline against which to assess and adaptively manage the effects of the Project.186 The Applicants understand this recommendation arises out of the perceived uncertainties of potential effects of sediment on the foraging habitat of coastal birds.187

121 The Applicants‟ witness, Dr Bull explained that undertaking a survey of coastal birds to determine areas of high value foraging habitat would be difficult as there are many other factors that may impact on the movement of birds. In particular, Dr Bull noted that the existing and continued discharge of sediment into the Harbour through current land use activities results in birds using different areas at different times. In addition, the relatively low numbers of wading birds recorded in the Inlet, compared to other sites around New Zealand, makes it difficult to detect any statistically significant results in terms of changes in foraging behaviour. She also noted that birds may change their foraging habitat due to the time of year

181 Expert Conferencing Joint Report to the Board of Inquiry – ecology, 2 March 2012, para 22. 182 N.NZTA.46(d)vi (NZTA.48(d)iv), N.PCC.29(c)vi (PCC.30(b)v).

183 Transcript, page 274, lines 3-10. 184 KCDC opening submissions, 22 February 2012, para 5.7. 185 Transcript, page 764, lines 16-17. 186 Baber, 21 December 2011, para 86b. 187 Baber, 21 December 2011, paras 56-57.

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or tidal phases. For these reasons Dr Bull does not support Dr Baber‟s recommendation.188

122 As Dr Bull recommended in her evidence189, if there is to be a requirement to attempt to assess potential effects on coastal avifauna, this should be through the monitoring of significant changes in the marine invertebrates on which the wading bird species forage. She explained this in cross examination:190

“It‟s just my professional opinion that to monitor the effect of sedimentation on that population or on the foraging birds that the best way to do it is to monitor the available food to them because there are too many other factors that may actually influence the use of the inlet for them so if there is food then that shouldn‟t impact on their ability to forage there”

123 As outlined in Dr De Luca’s evidence, monitoring of the marine ecological values (invertebrates and grain size) is proposed prior to, during and post-construction.191

Should the Applicants be required to carry out roost site enhancement activities? 124 As for Dr Baber‟s suggestion that the Applicants carry out roost site enhancement activities,192 Dr Bull explains in her evidence that, for the three threatened species of coastal birds classified as “high”, the Porirua Harbour is not identified as providing either an important breeding or non-breeding habitat.193 In addition, Dr Bull noted that “At the moment there is an over abundance of habitat to be able to maintain the birds that currently utilise the harbour.”194 There is no clear causal link between the effects of the Project and the effects on the roost sites of coastal birds.

125 The Applicants do not consider that roost maintenance or enhancement activities are required for mitigation of the effects of the TGP.

188 Bull, 20 January 2012, paras 55-56; Transcript, 20 February, page 571-572. 189 Bull, 20 January, para 22. 190 Transcript, page 581, lines 16-21.

191 De Luca, 17 November 2011, para 23. Provided for in conditions N.G.44 and N.G.45 (M.3 and M.4). 192 Transcript, page 1091, lines 21-31. 193 Bull, 20 January 2012, paras 43-44. 194 Transcript, page 577, lines 26-30.

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NOISE MITIGATION AND CONDITIONS IN THE NOTICES OF REQUIREMENT

Operational noise effects Will operational noise effects be reasonably mitigated by the NoR conditions proposed by the Applicants? 126 Operational noise effects received considerable attention during the hearing.

127 Dr Chiles’ evidence195 is that operational noise arising as a result of the Project will be restricted to reasonable levels. He states:196

“...I have determined what I consider is the best practicable option (BPO) for noise mitigation using that standard. The selected mitigation includes low-noise road surfaces, noise barriers and acoustics treatment of certain buildings. This mitigation is mainly required in the Linden area. Other than a section of noise bund by Flightys Road, for the rest of the Project I do not consider that any specific noise mitigation measures are necessary.”

128 Dr Chiles and Mr Lloyd‟s joint statement records that there are no significant areas of disagreement between them.197 In particular, the experts agree that:198

128.1 The assessment of operational road traffic noise under the RMA requires broader consideration than just the assessment of mitigation options in terms of NZS 6806;

128.2 For state highway traffic that follows typical diurnal variations, there is little discrimination between the noise

results that are determined using the LAeq (24h) metric and

those determined using the Lden, and Ldn metrics or separate day and night levels;

128.3 The District Plan noise rules are not applicable to road traffic noise, other than in the Kapiti Coast District Plan where there are rules set for roads as controlled activities in the rural zone; and

128.4 A main issue arising out of the Waterview Decision related to Category B buildings that are located in places which currently do not adjoin a major road, where, even with the external noise mitigation measures proposed by the NZTA,

195 Chiles, 15 November 2011, para 21.

196 Chiles, 15 November 2011, para 16. 197 Expert Conferencing joint report to the Board of Inquiry – operational road-traffic noise, 2 March 2012, para 13. 198 Expert Conferencing joint report to the Board of Inquiry – operational road-traffic noise, 2 March 2012, paras 5, 8, 11 and 12.

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internal noise levels of 40 dB LAeq(24h) might not be able to be achieved in all habitable rooms when the windows facing the new road are open for ventilation (NZS 6806 not giving guidance as to how adaptation in such circumstances should occur).

129 Both Dr Chiles and Mr Lloyd were extensively questioned by the Board, and then directed to conference further relating to what any

conditions requiring a level of 40 dBLAeq(24h) to be achieved inside homes could look like199, and the consequences of any such conditions.200 The experts‟ second conferencing statement provides conditions of the type suggested by the Board (but does not discuss the consequences of such conditions).

130 The Board was clear that the conditions developed by the experts should not provide for “betterment”, and for this reason the conferencing statement records that the new condition put forward in the statement would not apply to the altered roads at Linden, SH58 and MacKays Crossing.201 As noted in counsel‟s opening submissions202, this accords with the legal principle established by case law in Matamata Piako District Council v Matamata Piako District Council that conditions must reasonably relate to the project being authorised and a condition which obliged an applicant to ameliorate traffic noise below the level experienced before the project would not be related to the authorisation of the project.203

131 The Applicants oppose imposition of the conditions set out in the 8 March 2012 conferencing statement (or conditions to similar effect) in relation to any protected premises and facilities (PPFs) affected by the Project, including PPFs which, as a result of the Project, would be in the vicinity of new roads. The Applicants continue to seek the operational noise conditions set out in the AEE204.

132 The reasons for this are:

132.1 The Applicants understand that Dr Chiles’ opinion and recommended mitigation has not changed (with the 8 March 2012 conferencing report merely providing wording for what

conditions which would require 40 dB LAeq (24h) to be achieved

199 NZS6806 uses the defined term “protected premises and facilities”. 200 Transcript, page 1481, lines 4-14. 201 Expert Conferencing joint report to the Board of Inquiry – operational road-traffic noise, 8 March 2012, para 6. 202 Applicants‟ Opening Submissions, para 202. 203 24 May 1996, A41/96, page 4. 204 Now conditions N.NZTA.71 to N.NZTA.81 (NZTA.21 to NZTA.31). However, the NZTA agrees that the words “in consultation with a suitably qualified acoustics specialist” could be added to condition N.NZTA.74, as agreed in paragraph 11 of the 8 March 2012 conferencing report (the updated conditions reflect this).

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in habitable spaces would look like if it was the Board‟s decision that conditions requiring the Applicants to achieve that level were appropriate);

132.2 Dr Chiles considers that the requirement to meet an internal

noise level of 40 dB LAeq(24h) in habitable spaces alongside new roads would be a blunt tool which may not lead to any appreciable lowering of noise levels (he gave the example of an expensive noise wall constructed in Auckland which provides an imperceptible (1dBA) reduction in noise)205;

132.3 Such a condition would, for this Project, likely benefit only the following additional properties: 129F, 207, 247B, 247C, 317 and 390 Flightys Road, 510 and 516 Paekakariki Hill Road, 75A and 53B SH58 and 111B Bradey Road. The owners of three of these properties lodged submissions206, two of which partly supported the Project. All three submitters asked for noise to be reduced using earthworks or low road noise surfaces207 – none of them asked for changes to their homes to address internal noise levels. None of these submitters appeared before the Board;

132.4 Waterview was unique in the New Zealand context – being a new motorway with predicted traffic levels of greater than 75,000 vpd, i.e. extremely high vehicle numbers for a New Zealand road, in an existing established residential neighbourhood;

132.5 By contrast, there are no particular characteristics of the TGP which would justify treating it as a special case. Indeed, the only particular characteristic of the TGP in this respect is that most of the homes on the above properties were built after the existing designations were confirmed, and so should have expected that noise levels would increase in the area. The High Court held in Takamore Trustees v Kapiti Coast District Council208 that a property owner who develops a property knowing (due to the existence of a designation) that a major road may be built nearby has less cause to complain about the effects of that road than if no designation had been in place. The proposed alignment of the road in the vicinity of these properties is either exactly the same as the confirmed designation or within 200 metres of it (in the north). It is

205 Transcript, page 1450, line 31 – 1451, line 13

206 Submissions 56 (247C Flightys Road), 41 (247B Flightys Road), and 54 (129F Flightys Road). 207 These mitigation options were considered by Dr Chiles, as discussed in paragraphs 92 to 94 of Dr Chiles evidence in chief (15 November 2011). 208 [2003] NZLR 496, paras [28] to [33].

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submitted that, if anything, the particular characteristics of the TGP would support a higher noise level being imposed;

132.6 There are no particular characteristics of the TGP which would

justify a parameter other than dB LAeq(24h). While Mr Kelly’s evidence209 is that the road is expected to carry increasing numbers of heavy commercial vehicles, there is no evidence that those heavy vehicles would be more likely to use the road during the night than during the day;

132.7 Dr Chiles has visited every person who has asked about noise issues and everyone alongside the barriers by SH1 in Linden. His assessment and recommended mitigation measures takes into account the views of those people;

132.8 Some residents would rather have increased noise levels than have to leave their homes, or have the shading and visual impacts of large noise barriers. For example, the only home included within the designation footprint for reason of construction noise effects is that owned by Mr Edge. Inclusion within the designation gives Mr Edge the right to oblige the NZTA to purchase his home – but this is not his current preference, and discussions with him are ongoing.210 NZS 6806 recognises, rightly in the NZTA‟s view, that the opinions of affected home owners are important;

132.9 While a condition requiring an internal noise level of 40 dB

LAeq(24h) in habitable spaces alongside new roads would affect only 12 houses for this Project, such a condition could affect vastly more houses if applied in future projects (not just state highway projects). Board of Inquiry decisions do not create a legal precedent. However, particularly given the limited operational noise effects and history of this Project, a decision by this Board to depart from the criteria in NZS6806 and impose more onerous requirements on the Applicants could in practice have far ranging implications well beyond this Project;

132.10 Those implications could affect not just NZTA and PCC projects, but the roading projects of all district councils and unitary authorities throughout the country, as well as other entities such as Auckland Transport and developers who are constructing and altering substantial roads as part of a subdivision or land use development;

132.11 The construction of a new section of road will always have some effects and will change the character of the area

209 Kelly, 20 February 2012. 210 Submission 0067; Nicholson, 16 November 2012, paras 161-164.

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through which it passes. That change of character can manifest itself in a number of ways through changes in the visual outlook, reduced feelings of privacy/isolation and changes in the noise environment. What is needed when assessing what level of change is acceptable and what steps, if any, should be taken to address this change is a balancing approach. This applies to noise as much as it does to other aspects of the change in character;

132.12 Given that:

(i) Scientifically, there is no particular magic about

achieving a 40dB LAeq(24h) internal noise level; and

(ii) The costs and inconvenience to all concerned in complying with a condition which imposed an absolute requirement to achieve such an internal noise level would be disproportionate to any actual benefits that would be achieved,

it is submitted that it is not appropriate for the Board to impose conditions on the Applicants which made it an absolute requirement for them to achieve 40dB internal noise levels at Category B and C properties;

132.13 In developing the NZS 6806 the Committee sought to overcome several weaknesses in the previously used „Transit Guidelines‟.211 One of those weaknesses was that, because the Transit Guidelines imposed absolute requirements for the specified noise limits to be achieved, mitigation measures had to be put in place to achieve those limits even if the reduction achieved by the mitigation measure was imperceptible.212 A condition which imposed an absolute requirement for the

Applicants to undertake measures to achieve 40dB LAeq(24h) internal noise limits at all Category B and C properties would give rise to the same issue;

132.14 For the reasons discussed above, the Applicants consider NZS 6806 and the criteria it contains to be „best practice‟ and seeks the imposition of conditions which are consistent with the standard;

132.15 The NZTA accepts that, in areas where PPFs are already affected by noise from a busy road, the mitigation options it is proposing to undertake will result in positive improvements in the noise levels experienced at those

211 Chiles, 9 February 2012, para 7. 212 Chiles, 9 February 2012, para. 14

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properties. NZS 6806 goes beyond the requirements of the RMA in that it allows for betterment in such areas and, as recognised by the acoustic experts, the NZTA has already accepted the recommended options which will result in improvements in some houses.213 The recommended options were consulted on, and included in the AEE and evidence. The NZTA does not step back from its proposal to undertake those measures.

133 In summary, the Applicants consider the operational noise mitigation proposed will be appropriate and will ensure that the Project‟s effects on the noise environment at PPFs will be reasonable.

OTHER ISSUES AS TO RESOURCE CONSENT AND NOTICE OF REQUIREMENT CONDITIONS

The Project’s management plans 134 There has been a great deal of discussion about the proposed management plans and the process surrounding certification of the management plans. The Board sought advice from its legal advisor, Mr Milne, on these issues.214 As was recognised by Mr Milne, management plans are a key means of avoiding, remedying or mitigating adverse effects215 and are common, if not essential, tools for large projects. 216

135 In order to assist the Board to understand the linkages between the various management plans, Appendix B to these submissions contains management plan diagrams (one each for PCC and NZTA) prepared by Ms Rickard.

136 These diagrams list the various management plans, identify which conditions are relevant to the management plans and record whether the management plan is being submitted to the territorial authorities or GWRC or both. The diagrams also identify which management plans the proposed peer review panel will have input into.

Outline Plans and the process for certification of the Territorial Authority Management Plans 137 Early differences of approach as to whether management plans incorporated into the section 176A outline plan should be subject to a separate certification process have been resolved through conferencing by the expert planner witnesses (including Ms

213 Expert Conferencing joint report to the Board of Inquiry – operational road-traffic noise, 8 March 2012, para 6. 214 Legal Advice to the Board, Philip Milne: Barrister, 6 March 2012. 215 Legal Advice to the Board, Philip Milne: Barrister, 6 March 2012, para 2.1. 216 Legal Advice to the Board, Philip Milne: Barrister, 6 March 2012, para 2.11.

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Thompson for KCDC). Nonetheless, the Applicants will briefly respond to this issue in closing, given the significant amount of discussion on this matter during the hearing and the Board‟s indicated interest in the issue.217

138 The outline plan process is provided by the RMA to ensure territorial authority input into detailed design. Section 176A of the RMA sets out the process whereby the requiring authority submits an outline plan to the territorial authority. One of the matters the outline plan is specifically required to show is “the landscaping proposed.”218 In terms of the Project‟s management plans, the LUDMP will detail the landscaping proposed for the Project. Hence Ms Rickard suggests that the LUDMP should form a chapter of the outline plan219 (and so too will the Heritage Management Plan, the Construction Traffic Management Plan, the Construction Noise and Vibration Management Plan and the Construction Air Quality (Dust) Management Plan).220

139 The management plan approach allows for information on detailed design to be collected effectively into a single place.221 Mr Milne confirmed in his legal opinion that there is nothing unlawful in leaving management plans which are not linked to regional council consents, to be addressed under the outline plan process.222

140 The territorial authority has the ability to request changes to the outline plan and those changes will be considered by the requiring authority.223 An Environment Court appeal process could follow if the requiring authority declines to make the changes sought. However, the evidence of Ms Rickard224 is that this negotiation process works well in practice. As Ms Rickard explained, the prospect of an Environment Court appeal is a “good incentive to work things out.”225

141 A key benefit of the designation process is the ability to successfully manage linear projects that traverse multiple territorial authority boundaries.226 For example, the Main Alignment crosses four

217 Transcript, page 268. 218 Section 176A(3)(e). 219 Rickard, 20 February 2012, para 13. 220 N.NZTA.6 (NZTA.6). 221 Rickard, 20 February 2012, para 13.

222 Legal Advice to the Board, Philip Milne: Barrister 6 March 2012. 223 Section 176A(4). 224 Rickard, 20 February 2012, para 21. 225 Rickard, 20 February 2012, para 21. 226 Rickard, 20 February 2012, para 15.

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territorial boundaries. As recognised in the ULDF227 and acknowledged by Ms Peake, it is important that, in terms of landscape and urban design measures, a consistent or holistic approach across the entire Project route is adopted.228 It is submitted that this holistic approach could be jeopardised if the individual councils sought to impose differing requirements through an individual certification process.229 By comparison, an outline plan process would enable the NZTA to successfully manage any changes to the LUDMP requested by the various territorial authorities. The Applicants see the outline plan process as appropriate as it will allow for an integrated design response across the entire roading alignment, which successfully merges all of the detailed design, landscape and urban design aspects.

142 However, in this case, the Applicants are not seeking to solely rely on the outline plan process. As recommended by the planning witnesses, there will be a consultation process for all management plans whereby:

142.1 There will be consultation with the applicable territorial authority prior to the formal submission of any management plan which forms part of an outline plan; 230

142.2 Management Plans which are to be certified by GWRC (e.g. the CEMP and EMMP) will be submitted to the territorial authorities for comment;231 and

142.3 The NZTA will provide a programme for the submission of Outline Plan (or Plans) to the territorial authorities for the purpose of assisting them with resourcing.232 (In addition, in recognition of concerns from KCDC about the substantive quantity of information that could be submitted with an outline plan, there is also acknowledgment within the conditions that the timeframes for requesting any changes to the outline plans within section 176A could be extended, if required).233

227 Urban design and Landscape Framework.

228 Transcript, page 772, lines 10-12 (although she also stated that there would also be individual design requirements along the route – see Transcript, page 774, line 5). 229 Rickard, 20 February 2012, para 15; Transcript, page 669, lines 23-30 (Rickard). 230 See conditions N.NZTA.16 (NZTA.9), N.NZTA.23 (NZTA.33), , N.NZTA.35, N.NZTA.39, N.NZTA.42 .

See Expert Joint Report to the Board of Inquiry – Planner (conditions) Expert Conferencing, dated 1 March 2012, paras 17-18. 231 Conditions N.G.22, N.G.19A , N.NZTA.20, N.PCC.E.18A, N.PCC.15. 232 Condition N.NZTA.8. 233 Condition N.NZTA.8.

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143 Finally, where matters in the CEMP were not already addressed by the CTMP, CNVMP or CAQMP, the Applicants have carved these out of the CEMP and created new conditions. The only district matters not otherwise addressed by Outline Plan management plans were light spill and dirt on roads. These are now addressed by conditions N.NZTA.33A and N.NZTA.41A.

144 The Applicants‟ view is that the statutory outline plan process, combined with the additional consultation which is proposed through the conditions, is more than adequate to ensure that the territorial authorities will be sufficiently involved in the development and finalisation of the management plans.

Certification or approval? 145 His Honour questioned Ms Grant and Mr Kyle on the appropriate scope of the GWRC Manager‟s role of certification.

146 Ms Grant spoke from her experience and appeared to see the concept of certification as akin to “approval”; in essence the latter allowing a degree of somewhat undefined discretionary judgement to be exercised. She indicated that, apart from one recent example, Council practice in this area had not encountered practical difficulties such as any impasse with consent holders. His Honour queried whether consent authority practice and/or the law had evolved in this area such as to have departed from traditional legal principles as to non-delegation of a consent authority‟s statutory function.234

147 By contrast to Ms Grant, Mr Kyle expressed preference for the more traditional understanding of certification. In this respect, he queried whether in fact Mr Milne‟s understanding235 was quite correct, i.e. as to whether legal principles had evolved in this area.236

148 The Applicants‟ Opening Submissions referred to the principle against delegation of the statutory function of decision-making.237 That principle is immutable and is simply a matter of statutory interpretation: the approval functions of the Board are conferred by the RMA and so cannot be transferred as the RMA does not allow for this.

149 The Board‟s non-delegable statutory function is to determine whether or not to grant consent (i.e. approval to the activity) and, if to grant, on what conditions (including “terms, standards, restrictions, and prohibitions”238). The consent authority‟s function

234 Counsel‟s Notes (McIndoe), 12 March 2012. 235 Legal Advice to the Board, Philip Milne: Barrister 6 March 2012, para 2.08-2.10. 236 Counsel‟s Notes (McIndoe), 12 March 2012. 237 Applicants‟ Opening Submissions, paras 89-94. 238 RMA, s.2(1) definition of “condition”.

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is one of resource management through administration and enforcement of the consents (and designations) issuing from a decision. Sustainable management depends on both the decision- making and subsequent administration and enforcement functions being exercised by the relevant statutory functionaries.

150 Hence, the correct concept for management plans is certification. What certification can and must cover has to be authorised by and derive from the conditions incorporated by the Board into its decision.

151 However, that is not to say that conditions cannot confer or allow for the exercise of discretion in the administration of the consent, under its conditions. Mr Milne referred to the importance of flexibility, especially for large projects. That includes flexibility to direct changes to draft and final management plans. He observed that the “quid pro quo for obtaining this flexibility is that applicants must accept that the consent authority needs to have the ability to reject inadequate management plans, or more usually to require changes to the plans other than by way of review of conditions”. 239

152 Allowing for discretion through conditions in the administration of a consent‟s conditions (including through management plans) does not necessarily offend against principles of non-delegation. So long as the consent, through its conditions, has determined whether or not the activity to which an application (or notice of requirement) relates is to be approved to proceed, and if so, subject to which conditions, those conditions can allow for discretion and choice to be exercised in administration.

153 During the hearing, His Honour discussed relevant parameters for what a condition needed to direct in regard to certification. It is submitted, those parameters in this case are:

153.1 Does the management plan submitted accord with the draft management plans that were the subject of earlier scrutiny, including in this hearing?

153.2 Has consultation been duly carried out in accordance with what conditions direct?

153.3 Does the management plan meet the objectives prescribed by conditions?

153.4 Has the management plan been prepared in accordance with any other directions specified by any condition of the relevant consent?

239 Legal Advice to the Board, Philip Milne: Barrister 6 March 2012, para 2.12.

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154 During cross-examination, Mr Kyle appeared to agree that Condition N.G.21240 (as to the EMMP), generally reflected the right approach241 in that it encompassed reference to the draft EMMP, requisite consultation, and the measures, actions, methods, trigger levels and monitoring programme designed to achieve the objectives specified in the relevant consent condition.

155 Each of the other relevant conditions governing management plans has been reviewed, and as has been addressed, it is submitted that now each is sufficiently clear in these parameters.

Who should certify the EMMP? 156 A particular issue has arisen as to who should certify the Ecological Management and Monitoring Plan (EMMP). As explained in their latest conferencing statement, all of the planners agree that it is appropriate to have one EMMP document.242 Ms Rickard considers that GWRC should approve the EMMP, as it would be messy to have multiple certification processes. 243 This was agreed by all of the planners except for Dr Solly, however Dr Solly has not suggested which organisation should certify the EMMP (if it is not to be GWRC). The Applicants submit that the RMA allows for one EMMP and for that document to be certified by GWRC.

157 Sections 30 and 31 of the RMA set out the functions of regional and territorial authorities. Pursuant to these sections both regional councils and territorial authorities have functions in relation to indigenous biodiversity. This is recognised in the Proposed Regional Policy Statement.244 In particular, policy 46 of the Proposed Regional Policy Statement provides for both district and regional councils to consider effects on indigenous ecosystems and habitats with significant indigenous biodiversity values, until such time as policies 22 and 23 are implemented through district and regional plans.

158 However, regardless of this overlap in relation to indigenous biodiversity, the scope of considerations in deciding the regional resource consent conditions is not limited by the consent authority‟s functions under sections 30 and 31 so as to preclude Part 2 of the Act.245 Section 104 requires a consent authority considering a resource consent application to have regard to any actual and

240 Formerly E.24/G.15E. 241 Counsel‟s Notes (McIndoe), 12 March 2012. 242 Expert Conferencing Joint Report to the Board of Inquiry of the Planners on conditions, dated 1 March 2012, para 22.

243 Expert Joint Report to the Board of Inquiry – Planner (conditions) Expert Conferencing, dated 1 March 2012, para 24. 244 See policies, 22, 23, 46, and 61. 245 Royal Forest and Bird Protection Society of New Zealand Inc v Manawatu- Wanganui Regional Council [1996] NZRMA 241 at page 264.

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potential effects on the environment of allowing the activity. The earthworks activities for the Project will have actual and potential effects on terrestrial ecology, including indigenous vegetation and habitats of indigenous fauna.

159 There are also a number of practical reasons for the Applicants‟ suggestion:

159.1 The majority of the ecological issues associated with the TGP relate to freshwater or marine ecology, which clearly fall within GWRC‟s mandate.246

159.2 Certification by GWRC would best enable the recognition of the interrelationship between terrestrial and other forms of ecology (e.g. the benefits of revegetation for reducing sediment runoff).

159.3 The terrestrial ecology of the route does not recognise territorial authority boundaries, and the separate authorisation by those authorities of the EMMP aspects which relate to their districts could lead to absurd outcomes. For example, the lizards and bats which the conditions require to be surveyed, monitored and relocated (in the case of the lizards) are all located in the area near Wainui Saddle. In this area the territorial authorities of Upper Hutt City, Kapiti District and Porirua City meet, and it is possible that lizards (for example) may need to be relocated from one territorial authority to another. There is also the potential for this to occur in Duck and Cannons Creeks, where lizards are present in the vicinity of the boundary between the Wellington and Porirua City Councils.

159.4 The artificial splitting of the terrestrial ecology aspects of the Project between the four district councils will not best ensure the sustainable management of natural and physical resources, because it will hinder an integrated approach to ecological management.

159.5 Some representatives of the territorial authorities concerned do not consider that they should have a role in terms of certifying aspects of the EEMP.247

159.6 It is not a necessary legal pre-requisite for a local authority being able to enforce compliance with conditions (or an associated management plan), that the authority has itself certified the management plan. These submissions

246 Section 30(1)(c)(iiia). 247 See “Comments received from territorial authorities regarding TGP proposed draft conditions”, received by the Applicants from the EPA on 12 March 2012.

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respectfully differ from Mr Milne‟s opinion on this matter.248 Mr Milne referred to the fact that regional councils are not responsible for enforcing district plans (and, of course this is also so for territorial authorities and regional plans). As a first response to that submission, however, it is not the case that the RMA precludes a regional council from enforcing a district plan or a territorial authority from enforcing a regional plan. That aside, of course, a management plan under a condition is neither a regional nor district plan. More relevantly, the RMA allows for any person (including another local authority) to take enforcement action. Even in the case of abatement notice action, the RMA allows for a local authority to authorise the officer of another local authority to carry out any of its functions and powers as an enforcement officer249.

159.7 The GWRC has functions in relation to the achievement of integrated management.250 It also has the dominant statutory functions in relation to the relevant management plans and related consent conditions from which these derive.

159.8 Ms Grant explained that, for any breach issues, all relevant local authorities should be notified. She referred to Ms Rickard having explained that an on-line system is intended to be set up for such communication. 251 Hence it is submitted that practicalities favour single certification.

What is being certified by the local authorities? 160 The Board has indicated that it is important that the conditions clearly identify what the local authorities are required to certify.252 The Applicants agree, and consider this imperative so as to ensure there is no later confusion for the consent holders/requiring authorities or for the councils (it is noted that the following discussion applies only to those management plans which are not subject to the outline plan process, as those management plans are not being certified by councils). Ms Rickard has reflected on the conditions in this respect, following the Board‟s questions to her on 9 March 2012.

Conditions provide requirements for certification 161 It is the Applicants‟ submission that the conditions clearly identify what is to be certified by councils. For example, in terms of the designations:

248 Legal Advice to the Board, Philip Milne: Barrister 6 March 2012, para 6.3 249 Section 38(1). 250 Section 31(1)(a). 251 Counsel‟s Notes (McIndoe), 12 March 2012. 252 Transcript, page 1074, lines 19-21.

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161.1 With respect to the NUMP “the purpose of the certification process is to confirm that the appropriate liaison with infrastructure providers has occurred and that their concerns have been taken into account where appropriate, and that the NUMP conditions N.NZTA.58 to N.NZTA.70 have been appropriately addressed.”253

161.2 With respect to the Site Specific Traffic Management Plans254, “The SSTMPs shall be provided to the Manager…for certification that:

1. They are consistent with the CTMP

2. Consultation has been undertaken with key stakeholders; and

3. That all the details required under this condition are shown, along with the other matters relevant to managing the effects of construction traffic.”

(As will be apparent, the conditions above link to other associated conditions and need to be read in that wider context).

162 For the regional consents, the certification process will involve GWRC assessing whether the consent holder has complied with the specified conditions for that management plan. For example, for the NZTA EMMP, the conditions require that:255

162.1 The EMMP must be prepared in consultation with key stakeholders and territorial authorities;

162.2 The EMMP submitted must be based on the draft EMMP attached to the applications;

162.3 The EMMP must contain objectives which demonstrate how the consent holder will manage and mitigate for the adverse effects of construction activities on terrestrial, freshwater and marine ecological values, and their associated biodiversity values, including, but not limited to, lowland coastal broadleaf forest, protected species, native fish etc;

162.4 The EMMP must set out methodologies and processes that will be used to achieve the identified objectives (a number of minimum specifications are given); and

253 N.NZTA.58 (NZTA.18). 254 N.NZTA.28 (NZTA.35), N.PCC.19 (PCC.22). 255 N.G.21-N.G.25 (G.15E-G.15F).

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162.5 The EMMP must set out provisions for salvage of elements of any habitat of indigenous flora and fauna that is being destroyed, where practicable. Minimum mechanisms for this are set out in the condition.

163 Accordingly, for the EMMP, the certification process by GWRC will involve the council assessing whether the management plan has been prepared in the appropriate manner, has included or demonstrated all of the matters required by conditions and complies with any “bottom line” requirements. A similar process exists for the other management plans proposed to be certified by GWRC.

164 Where conditions require certification in relation to monitoring requirements the conditions have been clarified to demonstrate that:

164.1 For conditions that involve gathering baseline data pre- construction:

(a) the Manager would be certifying that the appropriate methodology has been used and that the monitoring has been carried out an appropriate number of times prior to construction; and

(b) The Manager would also be involved in checking that the consent holder had set appropriate trigger values working from the baseline monitoring.

164.2 Then, for monitoring going forward through the construction phase of the Project, the certification process would again confirm that:

(a) The appropriate methodology had been used and that the monitoring has been carried out at an appropriate frequency; and

(b) The monitoring was being carried out in a suitable location based on the current stage of works.

164.3 If adverse effects were identified through monitoring, the Manager would also be involved in certifying that the consent holder had consulted where necessary, and undertaken an appropriate course of action based on the nature of effects identified.

165 There is no intention that the use of the term “certification” in the conditions is intended to imply an unduly limited role for councils. As the conditions demonstrate, councils will have a significant role in both the development (through the consultation phases) and

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finalisation (through the certification phase) of the management plans.

166 Mr Milne considered it important that the Council be able to seek changes to the plan before it is certified.256 This is the intention of the proposed conditions. The critical point is that until the council officer undertaking the certification, acting reasonably, is satisfied that the management plan meets the specified requirements in conditions, the officer will withhold certification (and construction work will be delayed until certification is obtained).

167 Mr Hardy questioned Mr Kyle on whether or not there would be merit in a condition providing for dispute resolution.257 The Applicants do not seek such a condition. Any “dispute” as may arise (and which is not considered likely) can be referred to the Environment Court if need be.

Changes to the management plans 168 The management plans are intended to be living documents. Accordingly, the conditions specify that the consent holder may request amendments to the resource consent management plans by submitting the amendments in writing to the Manager of GWRC. An appropriate safeguard for the Council is that no changes may take effect until they have been certified and any changes must remain consistent with the overall intent of the relevant management plan.258 It will be for GWRC to decide whether a requested change is appropriate.

169 Mr Milne also suggests that it would be appropriate for the applicable consent authority (i.e. in this case GWRC or the local authority) to be able to require changes to operational management plans or be able to halt works while such changes are made.259 The Applicants do not consider this is to be an acceptable approach for management plans which form part of the Outline Plan process, as this would leave discretion to the council officer to require changes, without any independent moderation or “checks and balances.” This could potentially cause unnecessary and significant uncertainty and disruption to the consent holder. In addition, it would be inconsistent to require certification of changes to the Outline Plan management plans (as sought by KCDC)260 when the Outline Plan management plans themselves are not submitted for certification.

256 Legal Advice to the Board, Philip Milne: Barrister 6 March 2012, para 2.12.

257 Counsel‟s Notes (McIndoe), 12 March 2012. 258 N.G.16 (G.11), N.PCC.E.15 (G.32). 259 Legal Advice to the Board, Philip Milne: Barrister 6 March 2012, para 2.15, third bullet point, para 5.17. 260 KCDC Closing Submissions, 13 March 2012, para 2.5.

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170 As Mr Milne noted in his opinion, there is no ability for the territorial authorities to initiate a review of the designation conditions. This is not unique to this Project, but is instead a feature of the RMA designation regime. Section 128 of the RMA (which relates to reviews of resource consent conditions) does not apply to designation conditions. If Parliament had intended that a similar regime apply to designations, it could have made provision for it. The Applicants consider that it would be inappropriate for conditions to be imposed which allow the territorial authorities to initiate a review of the designation conditions or the management plans, when such a regime is not permitted by the RMA.

171 However, the Applicants have inserted a new condition261 which recognises that it may be appropriate for the GWRC Manager to request a review of management plans provided pursuant to regional consent conditions, if an incident occurs which necessitates the revisiting of one of those plans. The ability to revisit the management plans is an important part of the adaptive management approach.

172 The Applicants consider that the process proposed by Ms Rickard and the outline plan process, coupled with the ability for GWRC to review the resource consent conditions,262 is sufficient to ensure that any adverse effect arising from the exercise of the management plans is sufficiently dealt with. In particular, there is no hurdle to the review of the management plans which are part of the adaptive management approach to ecology and sediment, as these will be provided pursuant to the resource consent conditions.

The process surrounding changes to designation and resource consent conditions 173 Dr Baber seemed particularly concerned that the Applicants might later apply to vary the resource consents sought for the Project, and through that process seek to reduce the amount of terrestrial mitigation offered.263 It is submitted that Dr Baber‟s concern is entirely speculative; there is simply no evidence before the Board to support such a suggestion. In any event the RMA provides an appropriate process for fully assessing variations to resource consents and designations. As requested by the Board264, that process is now explained:

173.1 For designations, section 181 provides that a requiring authority may, at any time, give notice to the territorial authority of its requirement to alter a designation. Section

261 N.G.10A, N.PCC.E.10A. 262 Provided for in N.G.7 (G.7), N.CBP.3 (G.7), N.PCC.E.7 (G.28) (Review of conditions is provided for by section 128 of the RMA). 263 Transcript, page 1098, lines 1-10, page 1115, line 29 – 1016, line 26. 264 Transcript, page 1116, line 27 - page 1117, line 30.

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181 applies to changes to designation conditions. In very defined circumstances, such alterations can occur without a further full RMA assessment process. All other alterations are treated as though they are a requirement for a new designation and the full RMA notice of requirement assessment process will apply (under sections 168-179 RMA).

173.2 For resource consents, consent holders can apply for a change or cancellation of any resource consent condition (except one relating to the duration of consent).265 A full RMA assessment will apply to this application also.266

174 In both those cases then267 a full RMA assessment process will apply, including capacity for public notification (assuming that the local authority considers that appropriate under the normal notification test), with submissions, possible hearings, rights of appeal etc. Effects, including terrestrial ecology effects, will be thoroughly assessed.

175 Dr Baber‟s suggestion for a mitigation “buffer” is therefore, inappropriate and unwarranted.

Clarity and precision in key consent obligations 176 During questioning of Mr Kyle, His Honour noted the vital importance of ensuring key obligations (including in objectives) were clear and precise268. An aspect of this is to ensure that management plan certification serves the purpose intended by the decision. As submitted in opening, decision-making is not a step in isolation269 but relates to consent administration in order to serve the RMA‟s sustainable management purpose. This is clearly central to the use of adaptive management.

177 As Mr Kyle noted, it is challenging but important to strike a correct balance between prescription and flexibility (a point also noted by Mr Milne).270

178 There are two important topics here:

178.1 Are objectives for management plans in all respects sufficiently clear and precise?

265 Section 127. 266 Section 127(3).

267 i.e. a change or cancellation of resource consent condition and a more than minor designation alteration. 268 Counsel‟s Notes (Hassan), 12 March 2012. 269 Applicants‟ Opening Submissions, para 95. 270 Legal Advice to the Board, Philip Milne: Barrister 6 March 2012, paras 2.13-2.16

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178.2 Are any matters specified for inclusion in management plans more appropriately expressed as conditions?

179 The Applicants have carefully considered the views of Mr Kyle, Dr Hicks and Mr McLean on these matters, in reviewing the proposed conditions now put forward. Some tightening of conditions setting objectives for some management plans is now proposed (consistent with the approach in Condition N.G.21 concerning the EMMP). Some matters have also been re-expressed as conditions, for example, conditions relating to stabilisation trigger events and heavy rainfall events, as recommended by Mr McLean. In addition, an adjustment is proposed to conditions to pick up the issue of “capture” raised by Commissioner Howie.

180 With these adjustments, it is submitted that the proposed conditions provide an appropriate balance in favour of direction in conditions on key matters, whilst allowing an important degree of flexibility through use of the management plans. The Board can be satisfied that this achieves the requisite RMA requirements.

Consent holder ultimate responsibility for compliance with conditions and Management Plans 181 The Board has indicated concern that some of the provisions of the draft management plans (which were submitted as part of the Applications) purport to devolve compliance with some of the conditions and monitoring of the designations and resource consents from the consent holder/ requiring authority to third party contractors.271 The Board was concerned about the ramifications of such an approach in terms of enforceability. His Honour emphasised the importance of this issue last Friday.

182 Mr Milne has provided advice on this issue. He notes that it is not unusual for a large project of this sort to contract out construction and as part of that appoint third parties to take “overall responsibility for site environmental performance…On site compliance with resource consent and designation conditions…Facilitate and oversee environmental monitoring etc”272 (as the draft CEMP contemplates). Indeed, given the size of the Project, it is perhaps unsurprising that the plans are explicit in allocating obligations to particular individuals. This is not to pass responsibility but to help ensure the consent holder fulfil its ultimate compliance responsibility.

183 Mr Milne notes such matters are ultimately contractual matters for the consent holder/requiring authority.273 However, he notes that

271 Transcript, page 1073, line 6 – page 1074, line 17 and Legal Advice to the Board, Philip Milne: Barrister 6 March 2012, para 5.1. 272 Legal Advice to the Board, Philip Milne: Barrister 6 March 2012, paras 5.2, 5.13. 273 Legal Advice to the Board, Philip Milne: Barrister 6 March 2012, para 5.4.

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the Board, can in his view make clear that in fact the “ultimate responsibility” for compliance with conditions of resource consents and designations lies with the Principal (i.e. in this case NZTA/PCC).274 For example, he suggests that it is important that conditions are in place which require adherence to management plans (so that failure to comply with a management plan constitutes breach of a condition).275

184 The conditions place a requirement on PCC/NZTA (as consent holder/requiring authority) to ensure that all works are carried out in accordance with any of the outline plan and management plans required by the designation and resource consent conditions.276 If the work is not carried out in accordance with the management plan, PCC/NZTA will be in breach of the applicable conditions. It is submitted that these conditions make it clear that the ultimate responsibility will always sit with these organisations, irrespective of whether a management plan specifies a particular role (including a compliance role) for a third party contractor.

185 It is noted that section 340 of the RMA imposes a specific regime in relation to circumstances in which a principal is, and is not, liable for the acts of agents. It is submitted that the Board can, and should, rely on this regime, rather than address this issue through conditions.

ADDITIONAL CONDITIONS OR RELIEF SOUGHT BY CERTAIN SUBMITTERS

KCDC Is a condition regarding the treatment of the existing State highway 1 required? 186 KCDC suggests that a new designation condition is required relating to the treatment of the bypassed sections of SH1.277 The NZTA (and PCC) do not support such a condition.278 The Board asked the Applicants to advise why they do not consider that a consultation condition in regards to revocation is necessary.279

187 As Mr Nicholson’s evidence discussed, any remedial or maintenance work required before any revocation of the State highway would be discussed with the affected council and

274 Legal Advice to the Board, Philip Milne: Barrister 6 March 2012, para 5.5. 275 Legal Advice to the Board, Philip Milne: Barrister 6 March 2012, para 5.15.

276 N.NZTA.7 (NZTA.7), N.PCC.7 (PCC.7), N.G.15(G.10), N.PCC.E.14 (G.31). 277 KCDC Opening Submissions, para 4.10; KCDC Closing Submissions, paras 2.14- 2.15. 278 Nicholson, 20 January 2012, para 32. 279 Transcript, page 1304, lines 24-26.

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undertaken prior to the revocation occurring.280 Work would be done to ensure that any asset handed over to the local council was fit for purpose from an asset management and safety perspective.281 Mr Nicholson also explained that any changes to the operation of a road or to landscaping or street furniture on a road post revocation should be defined by the local councils, in consultation with local communities.282

188 Mr Nicholson spoke to this issue in cross examination:283

“I think it‟s probably unnecessary to have a condition because as I mentioned I think that‟s implicit in the state highway revocation process and similarly in our detailed design process that we would identify the appropriate treatment, threshold treatments and so on as to how to transition from the project to the existing road network. All of that would be subject to safety audit and so that‟s a perfectly normal everyday part of our project development. I‟m not convinced that a specific condition requiring something that always happens anyway is needed.”

189 While Mr Nicholson conceded such a condition would not be offensive284 there are legal issues with such a condition. In deciding whether to make a recommendation to the Chief Executive of the Ministry of Transport that the state highway status of the coastal sections of the existing State highway 1 be revoked, the NZTA would be exercising a statutory power under section 103 of the LTMA. Any such recommendation would be the exercise of a statutory right. It is submitted that it would be unlawful for the Board to impose a condition which sought to constrain when or how the NZTA could exercise those statutory rights or powers, unless the NZTA agreed to its statutory rights being constrained (which it does not).

190 Mr Bailey’s view was that he did not consider such a condition was necessary either, explaining that matters associated with the handover of SH1 would be best dealt with as part of normal business between PCC and the NZTA. His evidence explained how a Memorandum of Understanding will be shortly developed to ensure clarity about the principles surrounding around any handover.285

191 With respect, counsel for KCDC oversimplified the issue when he stated in closing that the key difference was timing.286 It is

280 Nicholson, 20 January 2012, para 32. 281 Transcript, page 123, lines 12-28.

282 Nicholson, 20 January 2012, para 32. 283 Transcript, page 87, lines 9-16. 284 Transcript, page 87, lines 24-26. 285 Bailey, 20 February 2012, paras 6-7. 286 KCDC Closing Submissions, para 2.14.

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submitted that KCDC‟s attempt to link the SH1 treatment measures to the opening of the TGP instead perhaps reflects a difference of view as to which organisation should fund any or all measures.

192 The NZTA accepts that any effects arising from the Project should be assessed and mitigated for, and while the existing coastal route remains State highway after the TGP opens, the NZTA will have statutory obligations regarding the safe and efficient functioning of that road.287 The NZTA is concerned to ensure it is not obliged to carry out treatments along SH1 which go beyond those parameters.288 Mr Bailey’s supplementary evidence is consistent with the NZTA‟s position.289

193 Mr McMahon asked counsel to explain why the proposed consultation process (which, as discussed above, will take place separately through the revocation process) is sufficient, in light of the fourth NZTA Project objective. 290 That objective provides as follows:

“To assist integration of the land transport system by enabling the existing State highway 1 to be developed into a safe multi-functional alternative to the proposed strategic link.”

194 The objective requires that the NZTA Project “assist integration” by “enabling” the existing SH1 to be developed into safe multi functional alternative. The evidence demonstrates that the reduced traffic predicted as a result of the TGP‟s development will enable the existing SH1 to be developed into a safe multi functional alternative.

195 However, the objective does not require that the NZTA Project must “provide” that safe multi functional alternative. This was noted by Ms Rickard in response to a question from Mr McMahon.291 Thus, the objective does not require any treatments to be actually carried out on SH1 as part of the NZTA Project. Rather, the focus of the NZTA Project is to enable an environment, where such treatments might later be implemented. As explained above, these can be detailed through the revocation process.

196 KCDC‟s submissions regarding a new local road are addressed later in the context of alternatives.

287 James, 16 November 2011, paras 16-19, 288 Transcript, page 130. 289 Bailey, 20 February 2012, para 8. 290 Transcript, page 1304, line 26 – 1305, line 3. 291 Counsel‟s Notes (McIndoe), 9 March 2012.

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Rational Transport Society Mr McMahon’s observations and request 197 Following counsel‟s presentation of submissions on conditions for the RTS, Mr McMahon made the following observations:

197.1 Mr Bennion had argued an extensive policy basis for conditions,

197.2 There will be an effect on walking and cycling and that the Board had heard evidence, some from experts, some from lay people,

197.3 The NZTA did not appear to have called experts,

197.4 It seemed lawful to impose the conditions,

197.5 Therefore, it became a question of whether it was appropriate to impose conditions of the kind pursued by RTS – referring here to the “precedents” argued by Mr Bennion, namely the Board of Inquiry decision in Waterview, and a consent order issued in 2009 for the Wellington Indoor Events Centre,

197.6 Mr Milne noted it as a live issue.

198 Mr McMahon then asked if there are to be conditions in response to what RTS sought, whether the appropriate approach was for the matters to be addressed in the LUDMP or whether it needed a separate purpose plan.

199 Mr McMahon then asked whether, regardless of the answer to this question, would RTS‟s proposed conditions meet the basic tenets which counsel put in cross-examination of Mr Kyle. Mr McMahon noted these as:

199.1 Clear objectives,

199.2 Reference to applicable standards, e.g. the NZTA Guideline.

200 Mr McMahon noted that the submitters (including RTS) had offered comments on the NZTA conditions “without prejudice” and invited the NZTA to do likewise, in that it would be good for the Board to know the NZTA‟s views on what is proposed in these conditions.

201 It is important that the various premises for Mr McMahon‟s request are tested, as part of the response to the RTS‟s argument for new conditions. Having done that, these submissions will indicate why the Applicants consider it appropriate to modify some conditions in response to the RTS‟s submission, but not other aspects.

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What was called and tested as to the conditions sought by RTS? 202 Mr McMahon‟s observations about what was called and tested in evidence were perhaps seeded by RTS‟s claim that the NZTA did not call any expert on the subject of walking and cycling292. Mr Bennion further submitted that the “NZTA have [sic] generally not put up clear evidence of why [RTS’s proposed] cycling and walking conditions would be unreasonable or inappropriate. In general they have simply said “’we are likely to do it/that’s just good practice, but we don’t want it in the conditions’”. The latter statement was framed as a quote but not referenced to any evidence. RTS‟s claims are spurious.

203 Mr Bennion also asserted in closing (interpolation) that the RTS and associated submitters‟ expert witnesses were not given an opportunity to take part in conferencing. However, the expert conferencing joint report for traffic and transportation matters, dated 9 December 2011, records that Ms Thomas was invited to take part in conferencing.293

204 On the matter of the pedestrian and cycling management plan and provisions on roads, RTS would appear to rely on Mr Patrick Morgan, Project Manager at Cycling Advocates Network (who professed expertise “in the analysis of levels of service provided to cyclists, and determining cycling needs”294) and Ms Liz Thomas, of Living Streets Aotearoa (as to pedestrian issues). On the Regional Parks‟ conditions RTS now seeks, Mana Cycle Group called Mr Kevin Gwynn, as to “effects on mountain biking”. RTS presumably also rely to an extent on Mr Chris Horne. In support of its conditions, it is understood that RTS seek to rely on Ms Paula Warren (who authored an original set of proposed conditions for RTS, although it is noted that the conditions attached to RTS‟s opening submissions were different from Ms Warren‟s, and the conditions evolved subsequently).

205 RTS‟s claim that the NZTA did not call relevant evidence on these matters is blatantly incorrect:

205.1 Technical Reports 4 and 23 traversed pedestrian and cyclist issues295.

205.2 Mr Kelly addressed issues as to cycling and pedestrian provision in his evidence in chief296. His evidence included his

292 RTS submissions, 13 March 2012, para 3.3. 293 Para 5. 294 Morgan, para 2. 295 Technical Report 4, section 4.9.3.; Technical report 23. 296 Kelly, 15 November 2011, paras 12, 75-78, 105-109, 116, 122, 154-155, 168.4

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opinion that “The safety and amenity of cycle and pedestrian movements at the tie-in points of the Project has been a key design principle”.297

205.3 Mr Kelly also responded in his rebuttal to the evidence of Mr Morgan and Ms Thomas in some detail298.

205.4 Ms Hancock (urban design) also addressed pedestrian and cycling networks299. She addressed pedestrian and cycling issues raised by submitters, and responded to the evidence of Mr Gwynn, Mr Horne and Ms Thomas in her rebuttal evidence.300

206 Neither Mr Morgan nor Ms Thomas has professional qualifications (by contrast to Mr Kelly and Ms Hancock). Their experience is gained from roles in advocacy for what RTS and related submitters are seeking as relief (again, unlike Mr Kelly and Ms Hancock). Neither Mr Morgan nor Ms Thomas were questioned by the Board.

207 Ms Warren was cross-examined on conditions. On the other hand, Mr Bennion did not cross-examine either Mr Kelly or Ms Hancock on conditions. Furthermore, Ms Warren‟s conditions differed from those which RTS presented in its submissions and also from those Ms Rickard was cross-examined on by Mr Bennion.

What is the evidence as to effects in support of the RTS conditions? 208 In his rebuttal evidence, Mr Kelly responded to Mr Morgan‟s claim that the Project will “provide no benefits for cyclists travelling from north of MacKays Crossing to Kenepuru, other than by affecting traffic on the coastal highway”301.

209 For this section of the existing SH1, he referred to the improved amenity which removal of large volumes of traffic would provide for cyclists, drawing from his experience with the opening of the Ruby Bay bypass302. Hence, his evidence for this section was of a substantial benefit (rather than the alleged adverse effect).

210 Mr Kelly referred to Mr Morgan‟s concerns about whether the AEE had assessed the effects of increased traffic volumes on Kenepuru Drive upon cyclists. He explained how these matters were

297 Kelly, 15 November 2011, para 76. 298 Kelly 17 January 2012, paras 69 – 88.

299 Hancock, 17 November 2011, paras 99-113 300 Hancock,17 November 2011, paras 51-52, 60-61 62-64, 76, 99-102, 105-107, 109, 110-113; Hancock, 13 January 2012, paras 10-15, 16-26, 28-29, 36-40. 301 Morgan, para 21. 302 Kelly, 17 January 2012, para 71.

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considered and would be addressed for the needs of cyclists. He explained how the increased use of Kenepuru Drive would derive significant benefits for cyclists along existing routes such as Main Road, Tawa.

211 When Mr Morgan was tested on these things in cross-examination, his logic was curious. Ms McIndoe put to Mr Morgan the fact that his evidence appeared to argue that an increase in traffic volumes (i.e. on Kenepuru Drive) would impact cyclists, but a reduction (i.e. on the existing SH1) would not. His final answer clearly showed his frame of reference was about benefits, and how much benefit, rather than mitigating adverse effects of the project, i.e. he noted “In general less traffic is a benefit but, again, if the facilities there are so poor as to be almost unusable, no improvement in cycling level of service will be delivered, which is why we tied the consenting conditions to this project”303.

212 It is also apparent from the transcript that Mr Morgan‟s opinion on the scale of benefits was in part due to his poor appreciation of the evidence on how the Project would affect traffic flows along the existing SH1. He referred to riding north of Pukerua Bay and there being “10,000 of [sic] 15,000 vehicles whistling over my shoulder” and said “that‟s not a real improvement in the level of service”304. In fact, the evidence is that the reduction in flow in this section will be from 23,500 down to 3,100 vehicles per day.305

213 Returning to Mr McMahon‟s observation that “there will be an effect on walking and cycling”, it is respectfully submitted that:

213.1 There are acknowledged and assessed effects at the tie-ins, i.e. each of Kenepuru Drive, SH58 and MacKays Crossing. As Mr Kelly noted, the “safety and amenity of cycle and pedestrian movements at the tie-in points of the Project has been a key design principle.306” That principle will be backed by Condition N.NZTA.1,

213.2 The AEE and evidence also assessed effects on recreational users of Reserves, such as those walking, cycling or horse- riding, as is reported in the evidence, and which is already addressed in the proposed conditions informed by that evidence,

303 Transcript, 6 March 2012, page 1296, and especially lines 26 - 31. 304 Transcript, 6 March 2012, 1296, lines 15 -20 305 McCombs, 13 November 2011, para 146. 306 Kelly, 15 November 2011, para 76.

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213.3 Aside from that, the evidence is of a substantial benefit to the amenities of cyclists and pedestrians, through reduction in traffic flows along the existing networks.

Are there issues of lawfulness with the conditions RTS propose? 214 In several respects, the additional conditions pursued by RTS are either ultra vires or seek to use the RMA to intrude into the statutory responsibilities of the NZTA for the operation and control of the State highway network:

214.1 Under the heading “State Highway 1”, RTS conditions 5 and 7 purport to require an unspecified sum of money to be paid to the recipient councils – a form of financial contribution not authorised by the RMA (leaving aside the fact that none of the Councils are seeking this):

(a) The High Court has held that a compulsory extraction of money by a public authority for public purposes enforceable by law which is not a payment for services rendered can only be compulsorily required either pursuant to clear and express words contained in a statute, or if the necessary implication of the express words used in the statute is that Parliament must have intended there to be a power to tax. To meet this test, the High Court has said that it is not enough to establish that it would be sensible and reasonable for Parliament to have included a power to tax or that, if Parliament had thought about it, probably would have included a power to tax. What is needed is for it to be a matter of “express and unambiguous logic” that, given the words used in the statute, Parliament must have intended to include a power to tax307.

(b) There are no express words in either section 149P(4) or 171(2) RMA which empower territorial authorities or consent authorities to impose conditions on designations requiring the payment of money, and it is not a matter of “express and unambiguous logic” that the words of those sections must be intended to include a power to require someone to pay money.

214.2 In substance, the RTS conditions cut across core statutory responsibilities of the NZTA including under the Government Roading Powers Act 1989, the Land Transport Management Act 2003. Several of the conditions seek to impose conditions

307 Neil Construction v North Shore City Council [2009] NZRMA 275, para [47]; Carter Holt Harvey v North Shore City Council [2006] 2 NZLR 787, paras [21] to [24]).

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on operation and control of the network that would endure in perpetuity (for the Link Roads, see condition c, for Kenepuru Drive, see condition 4). It is submitted that it is ultra vires to curtail such statutory powers and responsibilities via a consent condition, absent agreement by the road controlling authority.

Irrelevance of claimed “precedents” 215 Counsel for RTS cited the Board of Inquiry‟s decision as to the Waterview project, and the consent order issued by the Environment Court in Mellor v Wellington City in 2009 as having some precedent value going to the merits of the RTS‟s proposed conditions.

216 Neither decision can be claimed to have any precedent influence at all. The contexts of each case are self-evidently different, and the decisions made (whether following hearing or by consent order) are on their facts, and according to the evidence or circumstances of each. Counsel for RTS indicated he would provide reference to relevant Waterview conditions overnight. It can be noted, however, that apart from the different context of Waterview and the evidence the Board considered in that case, the conditions are materially different. For instance, none in Waterview require payment of money. Likewise, the context in the Mellor case is materially different. There, the concern leading to conditions was as to managing effects on the State highway network, not the claimed consequences of a State highway project.

What is the appropriate response to the relief pursued by RTS? 217 In terms of the question Mr McMahon posed, i.e. whether it would be appropriate to impose conditions of the kind pursued by RTS, the Applicants submit that it would not be, for all the reasons just given.

218 The set of conditions which RTS seeks for cycling and walking facilities in relation to SH1 substantially pursue environmental compensation or benefit. They are contrary to Newbury principles These and other conditions pursued in relation to tie in facilities are ultra vires in many respects. All seek to add to the Land Transport Fund a further shopping list of a submitter‟s preferences (albeit one poorly informed by the evidence considered by the Board). All seek to intrude upon the exercise by the NZTA of its statutory responsibilities as road controlling authority. As such, the RTS conditions should be rejected.

Are there potential responses to aspects of what RTS seeks? 219 Having said that, the Applicants now propose modifications to its earlier proposed conditions in light of RTS‟s submissions yesterday.

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SH 58 joint pedestrian and cycle path 220 In addition to the existing conditions, the Applicants could accept a condition that was to the effect that, when considering the potential for a joint pedestrian and cycle path under the SH58 interchange (under Condition N.NZTA.47), the requiring authority be required to consult with the parties listed in Condition N.NZTA.42 and ensure that the BPO is used in considering the design options.

221 That could be backed by a condition obliging the requiring authority to prepare and submit a report to the Council at the same time as the submission of the Outline Plan that addressed the following matters:

221.1 The nature of the alternatives that were considered and the reasons why the preferred option was chosen;

221.2 Who was consulted and their responses;

221.3 Public health and safety.

References to guides and standards in conditions 222 The Applicants accept it is useful and appropriate to reference relevant guides and standards in conditions. In the case of pedestrian and cycle facilities, reference is appropriate to the applicable AUSTROADS standard. Changes have been made accordingly to Condition N.NZTA.46, regarding the LUDMP.

Addressing disruption to recreational activities 223 To address the concerns raised as to disruption to recreational activities, the Applicants propose further amendments to conditions:

223.1 To include a condition to require consultation in the preparation of the Communications Plan with Battle Hill Eventing, together with provision of the overarching Project programme at regular intervals (as it relates to works within the Battle Hill Farm Forest Park).

223.2 To require preparation of a SSTMP for certification by the Manager, where works are occurring within Battle Hill Farm Forest Park and Belmont Regional Park and have the potential to block access to existing walking, cycling and/or horse- riding tracks for more than three months. The proposed condition would require consultation to be undertaken with Tararua Tramping Club, Battle Hill Eventing, and Mana Cycle Group. It would also require the SSTMP to specifically deal with the following matters, whilst having regard to public health and safety:

(a) Provision of signage at an appropriate starting point on the track explaining the nature of any access changes;

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(b) Undertaking of measures to:

(i) Maintain, where practicable, safe and clearly sign-posted alternative tracks around the construction works; and

(ii) Provide for the shortest and most convenient detours that are reasonably practicable.

Matters relating to the LUDMP 224 In addition to the matters discussed yesterday, RTS and related party witnesses raised two other matters inviting response.

Is a further crossing point required to be provided across the Main Alignment, to mitigate for track severance? 225 RTS‟s witness, Mr Horne proposed that a further crossing point (by way of underpass or overpass) should be provided over the Main Alignment to mitigate for the loss of an existing track in Belmont Regional Park.308

226 The NZTA does not accept that such a crossing point is required, for the following reasons:

226.1 It is not a “formal” track, evidenced by its lack of inclusion on GWRC‟s official pamphlet of park tracks (Exhibit 21);

226.2 Connections will be provided under Bridges 18 and 19, meaning that there will be only a very marginal detour for walkers of this informal track; and

226.3 Ms Hancock has already provided an assessment of the park‟s formed tracks, and identified through the ULDF which ones require reconnection.

227 Nonetheless, (on the basis of Ms Rickard’s answers in cross examination by Mr Bennion),309 the NZTA would be comfortable with the LUDMP consultation condition being extended so as to also require consultation with the Tararua Tramping Club, where works are within or directly adjacent to Belmont Regional Park or Battle Hill Farm Forest Park.310 This will provide a forum for outstanding issues in relation to provision of tracks to be considered, as part of the detailed design process.

308 Transcript, page 1225, lines 5-9. 309 Counsel‟s Notes (McIndoe), 9 March 2012. 310 This is provided for in condition N.NZTA.42.

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Sufficiency of consultation 228 Mr Gywnn expressed concern during his representation that some of the cycle and walking paths currently proposed in the ULDF might not actually be developed.311

229 As Mr McMahon explained312, the ULDF is to be implemented through the LUDMP.313 Further, the LUDMP must demonstrate how the design principles in the ULDF have been adhered to in the development of the design concepts. 314 A LUDMP which did not contain appropriate walking and cycle linkages would be unlikely to be “implementing” the ULDF.

230 A further safeguard is that the LUDMP is to be prepared in consultation with a number or organisations, including the Mana Cycle Group.315 This will give the Group an opportunity to voice any concerns about the adequacy of the walking and cycle paths proposed. The Applicants are obliged to “report” on this consultation process and explain in the LUDMP where any comments arising in consultation have not been incorporated and the reasons why.316

231 The Applicants consider that those safeguards are sufficient to address Mr Gywnn‟s concerns in regard to walking and cycle linkages.

Response to property owners: Paekakariki Hill Road 462, 436A and 504 232 E Deuss, the Poppe Family Trust and D and C Christensen317 have provided written submissions and also appeared before the Board to present representations.318 They seek that the Main Alignment be shifted to the east, closer to the existing designation and further away from the houses on their properties on Paekakariki Hill Road.

233 There were some inaccuracies in these submitters‟ understanding of relative distances between their properties and the designation boundaries.

233.1 Mr Poppe suggested that the designation boundary was only 20m from his house.319 In fact, as can be seen from

311 Transcript, page 1300, lines 1-16. 312 Transcript, page 1303, lines 6-24. 313 N.NZTA.43(b) (NZTA.46). 314 N.NZTA.46(a) (NZTA.48). 315 N.NZTA.42. 316 N.NZTA.42. 317 Submissions No. 19, 20 and 57. 318 On 7 March 2012. 319 Transcript, page 1358, lines 19-20.

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Landscape Plan LA 09, the distance to the designation boundary is well in excess of this distance.

233.2 The Deuss submission stated that the Main Alignment will be approximately 100m from the house on that property, as compared with 500m for the existing designation. In fact the proposed designation is approximately 180m from the house, the existing designation 270m, and the proposed Main Alignment approximately 220m.320

234 Putting those points aside, the Applicants responded to the concerns of these submitters in the evidence of Messrs Lister, Edwards and Nicholson.321 As that evidence explains, there are issues with shifting the Main Alignment in the manner proposed by these submitters:

234.1 A movement of some 100m to the east would shift the road roughly 30m higher on the hillside which would likely increase the road‟s prominence322 and would increase the road gradient to above the maximum recommended for the Project - alternatively, maintaining current gradients would increase the cut heights significantly as compared to the proposed design;323

234.2 The proposed location of the alignment avoids the main stem of Horokiri Stream. The location and orientation of Bridge 8 and associated earthworks eliminate the need for any stream diversions in this area, however the bridge location means the road alignment has to be where it is proposed;324 and

234.3 The submitters‟ proposed alignment would avoid what they term “two unnecessary curves” between bridges 7 and 8. However, those curves are required so as to avoid large cuts into “Gasline ridge” hillside within BHFFP, which could require relocation of a significant length of the two gas mains that run through that area.325

235 To alleviate some of the concerns raised in respect of these three properties the conditions proposed by the Applicants provide for extensive visual mitigation planting, the detailed design of which is

320 Lister, 17 November 2011, para 128; Edwards, 16 November 2011 para 111. 321 Lister, 17 November 2011, paras 125-129; Edwards, 16 November 2011, paras 107-111; Nicholson, 131-132. 322 Lister, 17 November 2011, para 126. 323 Edwards, 16 November 2011, para 110. 324 Edwards, 16 November 2011, para 108. 325 Nicholson, 16 November 2011, para 131.

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to be finalised in consultation with the owners of these three properties.326

236 Notwithstanding those comments, Mr Edwards has recognised in his evidence that minor “tweaking” of the bridge across the Horokiri Stream is an option.327 Accordingly, Mr Nicholson has explained that the NZTA would be willing, during the detailed design stage of the Project, to attempt to realign the Main Alignment so that it is as far away from these properties as possible, whilst still remaining within the designation boundaries.328 A condition is now proposed by the NZTA providing for this.329

237 Dr Chiles also responded to concerns from E Deuss and D and C Christensen about operational noise. Dr Chiles stated that operational road-traffic noise will be below the 57 dB LAeq(24h) Category A criterion and on the basis of the guidance in NZS 6806 the noise will be reasonable.330 In reply to the concern raised by D and C Christensen regarding construction noise, Dr Chiles noted that he expects construction noise levels at their residence to comply with the NZS 6803 guidelines at all times, and to be significantly below the guidelines for the majority of the construction period.331

238 A number of comments have been made by these submitters as to the inadequacy of the consultation process undertaken by the NZTA.332 Whilst the NZTA regrets that these submitters feel the way they do, the NZTA does not consider that its consultation processes were in any way inadequate. Mr Nicholson describes the consultation process fully in his evidence. 333

KCDC’s conditions 239 The Applicants reasons why both the KCDC conditions (ie as to SH1 treatment, and the local road) should be rejected are addressed earlier in these submissions.

DOC’s conditions 240 Appendix A shows some limited modifications to conditions in response to DOC‟s submissions yesterday, and summarises reasons

326 Lister, 17 November 2011, para 127; Condition N.NZTA.47 (NZTA.48.A). 327 Edwards, 16 November 2011, para 9. 328 Nicholson, 16 November 2011, para 132 (Noting that Mr Nicholson‟s comments were given specifically in response to the Poppe Family Trust submission. Nonetheless, the NZTA is happy to extend this process to all three submitters).

329 N. NZTA.47A. 330 Chiles, 15 November 2011, paras 95-96. 331 Chiles, 15 November 2011, para 97. 332 For example, page 1358, lines 26-33. 333 Nicholson, paras 52-62, 124-132.

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why the substantial number of further conditions pursued by DOC should be rejected. It was evident from DOC‟s responses to the Board‟s questions yesterday that many of these are simply not supported by the expert evidence (for instance, what is proposed on Ms Kettle‟s recent input to the condition set or as a result of Mr Handyside‟s further thinking following cross-examination of those witnesses). They are disproportionate to the environmental risks. They would impose timetabling and costs risks for the Project, and hence on enabling people and communities to provide for their health and safety and wellbeing. As such, they are contrary to the sustainable management purpose of the RMA.

Paremata Residents Association & PICT conditions 241 Mr Morrison also addressed the Board yesterday, speaking to the conditions these submitters pursued and noting that the proposed conditions did not address their relief on three aspects:

241.1 Sedimentation removal from the Inlet, in terms of which the submitters seek to broaden obligations to allow for the potential for dredging, declamation and structure removal (potentially extending to the existing SH1 bridge),

241.2 Tolling arrangements, and

241.3 Removal of the existing SH1 bridge (and related work along Mana Esplanade) upon the commissioning of the Project.

242 The Applicants propose a modification to Condition N.G. 48 to the effect that the ecologists have the option of considering selective dredging to address ecological effects. It is respectfully submitted that this is the extent to which Mr Morrison‟s expressed concerns should be addressed as it is supported by the expert evidence. In particular, it is important that the regime maintains its focus on Harbour ecology. The other matters extend beyond what is relevant in terms of addressing the Project‟s effects in terms of relevant RMA principles.

OTHER MATTERS

Traffic and Transportation Issues What is the relationship between the Land Transport Act 1998 and the Land Transport Management Act 2003? 243 During Mr Mellor‟s evidence the Board expressed an interest in any relationship between:

243.1 The Wellington Regional Land Transport Strategy (WRLTS) and the Land Transport Management Act 2003 (LTMA) 334;and

334 Transcript, page 1217, lines 19-23.

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243.2 The Land Transport Act 1998 (LTA) and the LTMA.335

244 The current WRLTS 2010-2040 was prepared under the LTMA.336 Under the LTMA, regional councils must prepare a regional land transport strategy every six years.337 The LTMA provides for an integrated approach to land transport planning, funding and management. It sets out the responsibilities for high level land transport planning strategies. This is done by establishing the NZTA,338 regional transport committees,339 and setting requirements for procurement340 and funding from the national land transport fund.341

245 The LTA is an act to promote safe road user behaviour and vehicle safety. It deals largely with controlling vehicles and drivers on our roads. Among other things, it sets out the requirements for driver licensing,342 offences relating to driving,343 enforcement procedures,344 the power to make rules governing road use and road user behaviour,345 and motor vehicle registration and licensing.346

246 Therefore, essentially, the LTMA and the LTA regulate separate facets of land transport in New Zealand.

Has the NZTA failed to give adequate consideration to alternative sites, routes and methods? 247 Various parties have suggested that the NZTA has failed to give adequate consideration to alternative sites, routes and methods. The NZTA does not accept such a suggestion.

Two Lane Transmission Gully 248 Ms Warren, for RTS, suggests that the NZTA should have considered the option of a two lane highway through Transmission Gully.347 As

335 Transcript, page 1218, lines 1-2. 336 The requirement to prepare a regional land transport strategy was removed from the LTA and inserted into the LTMA by the Land Transport Management Amendment Act 2008. 337 Land Transport Management Act 2003, s 73. 338 Land Transport Management Act 2003, s 92. 339 Land Transport Management Act 2003, s 105. 340 Land Transport Management Act 2003, s 25. 341 Land Transport Management Act 2003, s 20. 342 Land Transport Act 1998, s5 and part 4.

343 Land Transport Act 1998, part 5 and 6. 344 Land Transport Act 1998, ss 68-74. 345 Land Transport Act 1998, part 11. 346 Land Transport Act 1998, part 17. 347 Warren, 21 December 2011, paras 75-77.

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Mr Nicholson explained in his rebuttal evidence348, a two lane highway was considered during the scheme assessment phase of the TGP but “the Project team … concluded from those analyses that the TGP route would not function safely, efficiently, or reliably as a two lane highway.”349

Upgrade of the coastal route 249 Mr Jessop, for the Coastal Highway Group350, stated that alternatives to the TGP have not been adequately assessed since, in the Group‟s view, upgrading the Coastal Route has not been adequately considered. As Mr Nicholson explained in his evidence, this is incorrect. A number of options along both the inland and coastal routes have been examined with the conclusions being that the inland route is more environmentally and socially acceptable than upgrading the coastal route, and also better than the “Do Minimum Option” (which is to leave SH1 as a single lane in each direction with some upgrades).351

250 Mr Nicholson also described the result of public consultation undertaken on the draft Western Corridor Plan in late 2005 where the vast majority (96%) of the approximately 6,000 submitters were opposed to the coastal route being upgraded, with most of the submitters (83%) favouring the TGP being built instead.352

251 Ms Oswald‟s representations for the Transmission Gully Action Group described the large scale community rejection of the coastal route upgrade, as evidenced through the Western Corridor hearing process. She described a coastal upgrade as “unacceptable and unconsentable.”353

252 Mr Nicholson also explained how upgrading the Coastal route would not meet two of the four Project objectives.354

253 It is submitted that the evidence demonstrates that the coastal route upgrade has been extensively considered by the NZTA.

Alternative local link 254 Mr Wignall, for KCDC, has proposed an alternative local link road alignment from Paekakariki to MacKays Crossing. KCDC submits that the NZTA has not given adequate consideration to this

348 Nicholson, 20 January 2012, paras 73-78. 349 Nicholson, 20 January 2012, para 77. 350 Submitter 34, Submission on Transmission Gully Proposal, dated 31 October 2011; Transcript, page 88, line 3. 351 Nicholson, 16 November 2011, para 28. 352 Nicholson, 16 November, para 54. 353 Transmission Gully Action Group Representations, 24 February 2012. 354 Nicholson, 16 November, paras 138-139.

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alternative method of connecting the Main Alignment to Paekakariki.355

255 As was submitted in opening, alternatives are relevant under section 171(1)(b) and clause 1(b) of the Fourth Schedule to the Act.356 For the purposes of section 171(1)(b), the NZTA need only show that it has not acted arbitrarily or given only cursory consideration to alternatives.357

256 As Counsel for KCDC acknowledged358 the Court in Nelson Intermediate School v Transit New Zealand held that consideration need only be given to “realistic alternatives”.

257 Counsel for KCDC accepted that it was for KCDC, as the proponent of this alternative, to provide sufficient detail for the Board to determine that the alternative is truly realistic.359 NZTA submits that KCDC‟s proposed alternative is simply not advanced enough to be considered a realistic alternative. For example:

257.1 The proposal has not been tested in terms of relevant Part 2 issues, notably its impacts on ecology or landscape,360

257.2 Access arrangements in terms of surrounding properties have not been considered,361

257.3 It would appear that KCDC has not engaged with the local Paekakariki community as to its preferences (Indeed, KCDC‟s option does not appear to have been discussed outside Council at all),362

257.4 The option (as currently indicated on plans) does not include provision for pedestrians or cyclists.363

258 However, irrespective of those limitations, as Mr McCombs and Mr Nicholson explained in evidence, the NZTA has essentially

355 KCDC Opening Submissions, para 4.1 356 Section 105(1)(c) RMA is also relevant to the question of discharges. See paragraph 233 of the Applicants‟ opening submissions. 357 Applicants‟ Opening Submissions, para 236. 358 KCDC Opening Submissions, para 4.3.

359 Transcript, page 721, lines 1-5. 360 Transcript, page 793, lines 25-27. 361 Transcript, page 795, lines 7-9. 362 Transcript, page 796, line 32 – page 797, line 5. 363 Transcript, page 795, lines 13-16.

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considered this alternative364, to the extent it can do so on the basis of the detail available.

259 The Applicants‟ witnesses expressed the clear view in cross examination that KCDC‟s alternative design does not represent the best, or indeed a better option to that advanced by the NZTA.365 Whilst KCDC suggested that the road should be built for reasons of resilience, safety and local convenience, the NZTA‟s evidence is in fact that:

259.1 The proposed parallel route will also suffer from resilience issues in the event of an earthquake and only provide marginal resilience in the event of a serious traffic incident on the TGP;366

259.2 Previous safety concerns with the NZTA‟s proposed connection (as noted in the NZTA Feasibility Safety Audit) have now been addressed in the current NZTA design through the provision of an auxiliary lane. The NZTA considers that there are safety issues with the proposed KCDC parallel route that are recognised in the same safety audit and have not been addressed;367 and

259.3 The parallel route will be longer and slower, and so would be in fact, less convenient.368

In Mr McCombs’ words “It’s not a worthwhile practical gain”369 and the design advanced by the NZTA is preferable.370

260 Ms Thompson accepted during cross examination that the link road may require further resource consents or an alteration to the designation in order to implement. That is reason in itself for why including a condition as sought by KCDC (even as amended by Ms Thompson) is inappropriate.

261 The NZTA submits that the RMA‟s requirements in terms of alternatives assessment have been fully satisfied and no condition ought to be imposed requiring the NZTA to further consider KCDC‟s

364 Transcript, page 153, line 30; Nicholson, 16 November 2011, paras 149-152. 365 For example, Transcript, page 155, lines 9-10 (McCombs); Counsel‟s Notes (McIndoe) of cross examination by Mr Conway of Mr Kelly. 366 Brabhaharan, 18 November 2011, paras 114-115; Edwards, 16 November 2011, para 118, Transcript, page 71, line 10 – page 72, line 8; page 353, lines 3-17.

367 Edwards, 17 January, paras 28-39. See sections 3.4.1 and 3.4.4 of the Safety Audit (Exhibit 4). 368 Nicholson, 20 January 2012, para 14; Kelly, 17 January 2012, para 19. 369 Transcript, page 153, lines 33-34. 370 Transcript, page 155, lines 9-10.

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local road alternative.371 Rather, the appropriate process is as Mr Nicholson explained in cross examination:372

“My position on that is that the NZTA considers that the project that we‟ve proposed is acceptable and that the configuration of ramps can be consented and is an appropriate way to connect the Transmission Gully route to the coastal route and Paekakariki. So in essence I‟m, as I‟ve said in my evidence, I‟m happy for us to have discussions with the Council about how we would go about that if collectively we agreed that there was merit in a cost benefit analysis or some other analysis of the relative merits of different configurations, I‟ve got no concern about us doing that and I‟ve said to council officers that we‟re quite happy to do that. I don‟t consider it‟s necessary for there to be a condition that requires that because I consider what we‟re proposing now to be acceptable.”

Greenhouse gas emissions and effects on climate change for the consideration of the effects of the Project 262 RTS has submitted that consideration of greenhouse gas emissions is relevant to the Board‟s consideration of the Project.373 The RTS suggests that the TGP will lead to increased carbon emissions, through induced traffic and increased development.374

263 RTS also asserts that greenhouse gas emissions from the RONS package have not been assessed.375 However, as per Mr Nicholson’s evidence, carbon dioxide emission costs were included as part of calculating the BCR for the Project.376

264 Carbon emissions are regulated at the national level by the Government‟s Emissions Trading Scheme introduced through the Climate Change Response Act 2002 (CCR Act). The Applicants submit that to also regulate them on a project by project basis at the district level via RMA land use authorisations would result in “double regulation” which would not assist in promoting the RMA purpose. Indeed, the clear rationale for the 2003 amendments to the RMA377 was to remove the potential for local controls to conflict with national objectives, i.e. to avoid any such double regulation. For example, at the Bill‟s third reading it was recorded that: 378

371 As was sought at paragraph 4.9 of KCDC‟s Opening Submissions. 372 See Transcript, pages 82, line 24-page 83, line 1. 373 RTS Submissions, para 2.14. 374 RTS submissions, para 3.28.

375 RTS Submissions, para 3.30. 376 Nicholson, 20 January 2012, pars 66-69. 377 The Resource Management (Energy and Climate Change) Amendment Bill 2003 which introduced section 7(i), 7(j), 70A, 70B, 104E and 104F. 378 (26 Feb 2004) [615] NZPD 11402, Hon Harry Duynhoven, Third Reading.

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“…the Government has chosen to control the impact on climate change from greenhouse gas emissions at the national level. By removing the ability for regional councils to also apply controls, this bill removes the potential for duplication and unnecessary costs to occur, and the potential for local controls to conflict with national objectives.”

265 The Applicants acknowledge that the CCR Act does not expressly state that a territorial authority/ Board of Inquiry is precluded from considering carbon emissions when considering a NoR for a designation under the RMA. However, as stated in opening submissions379, the Applicants do not consider that the emission of greenhouse gases resulting from the construction or operation of the road is relevant when considering NoRs for designations. In particular, the Applicants consider it would be nonsensical to prohibit consideration of the effects on climate change when determining discharge applications, and yet to allow their consideration in relation to notices of requirement for designations. Territorial authorities do not have any functions under section 31 of the Act in relation to any discharges of contaminants (whether greenhouse gases or not).380 Further, contributions to climate change are not recognised as being either nationally significant, or an “other matter” to which regard must be had under Part 2 of the RMA. The Courts have held that it is not necessary for the applicant to establish that their Project would have beneficial effects on climate change.381

266 Further, the second caucusing report of the traffic and transportation experts recorded the agreement of the majority of the experts who took part in that conferencing that the net effects of the Project on:

266.1 Private car mode share;

266.2 Fuel consumption

266.3 Private vehicle occupancy,

are unclear.382

267 Given this, it is submitted that even if it were somehow relevant to the assessment of the NoRs to consider greenhouse gas emissions,

379 Applicants‟ Opening Submissions, paras 213-215. 380 Specifically section 31 RMA does not include any provision equivalent to section 30(1)(f) RMA. 381 Upland Landscape Protection Society Inc v Clutha District Council & Ors EnvC C85/2008, 25 July 2008 at [231]. 382 Expert Conferenicng Joint Report to the Board of Inquiry (Second meeting of experts), dated 19 December 2011, Table 1. Mr Mellor reserved his position on this point.

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for this Project, the matter should be given little weight in the overall balancing exercise which the Board is required to undertake when determining whether or not to confirm the NoR. RTS also suggest that section 7(i) (effects of climate change) is also a relevant consideration.383 This section intends that particular regard be had to the effects of climate change on the project for which a designation/consent is sought. 384 As was explained in opening, any sea level rise through climate change would not affect this Project.385

Is the sustainable management purpose of the RMA promoted? 268 The Project‟s benefits have been extensively discussed. It is submitted that these benefits will enable people and communities to provide for their social, economic and cultural wellbeing and health and safety. As the Board has heard, the benefits are not only national, but also local, and especially regional. Overall, the TGP route will offer a vastly safer, more secure, and more efficient and reliable highway connection in and out of the Capital, while local people will be able to enjoy less traffic through coastal towns.

269 As the Board has heard, the Project will have a number of actual or potential adverse effects, which is an inevitable consequence of the Project‟s sheer size and scale. However, it is submitted that those adverse effects are not as great as may have been expected, due to the careful design of the Project and the proposed mitigation measures, as contained in the management plans and comprehensive (and stringent) adaptive management and other conditions proposed. The Project effects of the Project will be appropriately avoided, remedied or mitigated.

270 The relevant sections of Part 2 of the RMA were identified and discussed in the Applicant‟s Opening Submissions.386 The Applicants‟ view as to the ability of the Project to meet the requirements of the relevant sections in Part 2 has not changed as a result of the hearing.

271 Ms Rickard’s evidence is that overall the Project will achieve the sustainable management purpose set out in Part 2 of the RMA. A number of the other expert planner‟s support her view, including Mr Kyle, the Board‟s section 42A advisor. It is submitted that, consistent with that evidence, confirming the proposed designations and granting the resource consents sought would further the RMA‟s sustainable management purpose.

383 RTS submissions, para 21.17(a). 384 Upland Landscape Protection Society Inc v Clutha District Council & Ors EnvC C85/2008, 25 July 2008 at [231]. 385 Applicants‟ Opening Submissions, paras 297-298. 386 Applicants‟ Opening Submissions, paras 246-309.

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CONDITIONS

272 A further version of the designation and consent conditions sought by the Applicants is attached to these submissions (Appendix A). This version makes further amendments to the conditions circulated to the planning experts by Ms Rickard on 5 March.

273 As the Board is aware, the proposed resource consent and designation conditions have been the subject of extensive discussion and refinement throughout the hearing and expert witness conferencing process. The NZTA and PCC would like to acknowledge the input received from submitters, their experts, and the section 42A authors on the development of the proposed conditions.

274 The Applicants have carefully considered the recent recommendations on conditions made by the section 42A experts and Ms Rickard has amended the conditions to address some of the residual concerns. For example:

274.1 Certain governing objectives have been clarified and tightened, in view of Mr Kyle‟s recommendations. Mr Kyle acknowledged that the drafting he offered on certain conditions was not quite right. With respect, the Applicants have looked to addressing key issues of substance rather than adopting his drafting;

274.2 The conditions relating to stabilisation trigger monitoring and heavy rainfall events have been split into separate conditions387 as recommended by Mr McLean. These have also been included in the monitoring conditions in the "general" suite; and

274.3 The Applicants agree with DOC388 that the amendment to condition N.G.40 suggested by Dr Hicks389 is not appropriate.

275 This version of conditions has also taken account of the responses received from the various local authorities. In the case of Ms Grant‟s views, there was little disagreement, and this was explained in the previous conditions version.

276 In the case of the other local authorities which Ms Rickard consulted with390 a number of their comments have been addressed in the updated version of conditions. For example, cost recovery

387 Now N.G.42A and N.G.42B (previously part of N.E.7). 388 Closing Statement on behalf of DOC in relation to conditions, 13 March 2012, para 12. 389 9 March 2012 Memo. 390 On Thursday 8th March 2012,

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