Minutes District Plan Hearings Committee – Chapter 11 General Provisions

Details of DISTRICT PLAN HEARINGS COMMITTEE MEETING HELD IN THE COUNCIL CHAMBERS, CIVIC CENTRE, WHAKATĀNE ON Meeting: MONDAY, 2 FEBRUARY 2015 FROM 11:00 AM TO 4:15 PM TUESDAY, 3 FEBRUARY 2015 FROM 10:00 AM TO 4:00 PM THURSDAY, 5 FEBURARY 2015 FROM 9:30 AM TO 2:12 PM TUESDAY, 17 FEBRUARY 2015 FROM 9:25 AM TO 2:50 PM (DELIBERATIONS), WEDNESDAY, 18 FEBRUARY 2015 FROM 11:15 AM TO 3:45 PM (DELIBERATIONS), TUESDAY, 3 MARCH 2015 FROM 9:15 AM TO 3:23 PM (DELIBERATIONS), TUESDAY, 14 APRIL 2015 FROM 9:00 AM TO 12:10 PM (DELIBERATIONS), TUESDAY, 21 APRIL 2015 FROM 9:00 AM TO 11:08 AM (DELIBERATIONS), TUESDAY, 16 JUNE 2015 FROM 3:15 PM TO 3:47 PM (DELIBERATIONS), WEDNESDAY, 17 JUNE 2015 FROM 9:10 AM TO 11:34 AM (DELIBERATIONS), WEDNESDAY, 29 JULY 2015 FROM 11:00 AM TO 11:33 AM (DELIBERATIONS), WEDNESDAY, 19 AUGUST 2015 FROM 1:23 PM TO 1:58 PM (DELIBERATIONS) Present: Councillors R N Orr (Chairperson), D W Sheaff, J A Turner and G F van Beek

In Attendance: Councillor J W Pullar (from 11:30 am), L Swan (Consultant Planner), P Doorman (Senior Policy Planner) and C B Hair (Administration Officer Policy) Apologies: None

1 PROPOSED WHAKATĀNE DISTRICT PLAN – TO HEAR SUBMISSIONS AND FURTHER SUBMISSIONS AND CONSIDER THE SECTION 42A HEARING REPORT ON CHAPTER 11 GENERAL PROVISIONS: 25.8.9

Refer to pages 1-334 of the agenda and tabled documents 334A-JW.

1.1 Consultant Planner’s Report Refer to tabled documents 334A-G.

1.1.1 Conflict of Interest Ms Swan, Consultant Planner, advised that she previously worked for Haines Planning and her name was associated with submissions in relation to Brookfield Multiplex. She advised that she was no longer employed at Haines Planning but continued to do contract work for the company. She advised that for this reason she did not undertake the analysis of the submissions relating to signs and the Senior Policy Planner had undertaken this analysis. The Consultant Planner spoke to the tabled summary of her planning report (refer to tabled documents 334A-G).

1.1.2 Earthworks Ms Swan stated that a number of changes have been recommended to the earthworks rules to address submissions and remove inconsistencies with other chapters. She stated that submissions on chapters 11 and 17 were considered together to ensure consistency across those chapters. The Committee has already heard submissions in relation to Chapter 17 –

A486437 Page 1 of 33 Landscape and Coastal Environment. Ms Swan stated that her recommendation was that the earthworks controls for the Sensitive Rural Ōhiwa and Rural Coastal zones as well as Significant Amenity Landscape (SAL) and Outstanding Natural Features and Landscapes (ONFL) be contained in Chapter 17 and that references to these zones be removed from Chapter 11. Earthworks rules related to all other zones would be contained in Chapter 11. Ms Swan stated that the intent was that there were no earthworks controls in the Rural Plains and Rural Foothills zones, except if an overlay applied. Ms Swan stated that a new rule was required to clearly state this to avoid earthworks in these (and the industrial and light industrial zones) falling within the category “any activity not otherwise provided for” and becoming a discretionary activity. She stated that the current wording inadvertently left open the interpretation that earthworks controls in the Rural Plains and Rural Foothills zones might need resource consent. Ms Swan referred to tabled document 334 F that clarified this situation by adding an additional rule 11.2.1.5 “Earthworks are permitted in all other zones”. Ms Swan stated that changes to the definitions of Earthworks and Production Forestry have also been proposed to ensure the definitions were mutually exclusive so there was no confusion as to which rules or standards apply. This was particularly relevant in those zones and overlay where the establishment of new production forestry was controlled (refer to Chapter 17). The recommended changes clarified when restoration of production forestry sites was necessary and ensured that standards were practical and reflected the nature of the industry. For instance, re-vegetation of access roads was not required if the land was replanted in forestry. She stated that all earthworks exclusions would be set out in the definitions only. Ms Swan stated that the recommended changes were also intended to ensure that on-site mining and quarrying were considered as distinct activities separate from earthworks. Again, this ensured that the permitted standards for earthworks, which were not practical for quarrying sites, did not apply. She stated that the recommended deletion of rule 11.2.1.6 meant that the permitted standards apply when earthworks were carried out below the m3 and m2 for each zone. This avoided adverse effects and addressed an issue that was identified through the review of the Council’s complaints database. Ms Swan stated that the recommended changes and additional advice notes were intended to clarify the relationship between regional and district council’s functions, noting that control of earthworks was considered to be a necessary function of District Plans. Ms Swan stated that the only zone in which it was recommended that the permitted earthworks volumes be decreased was for the Coastal Protection Zone (CPZ). Ms Swan stated that, as set out in her section 42A report, this zone was not generally intended for development and applied to land with a number of values that could be compromised by inappropriate earthworks. As such, she recommended that the volume and area thresholds in the Operative Whakatāne District Plan be retained. Overall, Ms Swan stated that the changes recommended were considered to better achieve the relevant objectives Gen1, policy 3, which she noted were not challenged by submitters.

1.1.3 Mining and Quarrying Ms Swan stated the activity of mining and quarrying was considered to be distinct from that of earthworks and she had recommended that these have their own section and rules. She stated that the submissions from Federated Farmers and Raynoir sought to increase the permitted volume for on-site mining and quarrying. She stated that rather than increasing the total volume, she was recommending that an average be applied so that a maximum of 10,000 m3 can be quarried over a 5 year period. Ms Swan stated that this better reflected

A486437 Page 2 of 33 the nature of on-site quarrying activities undertaken as part of farming and forestry activities but still enabled amenity and other effects to be considered if larger scale quarrying was proposed. Ms Swan stated that she also recommended that the definition of Production Forestry be amended to clarify that this did not include mining and quarrying activities. Ms Swan noted that the Regional Council also controlled quarrying and mining activities and that all commercial quarries required resource consent.

1.1.4 Noise Ms Swan stated that the noise related provisions in the Proposed Whakatāne District Plan (PWDP) changed significantly from the Operative Whakatāne District Plan (OWDP) and there were a large number of submissions on these provisions. She noted that noise was often related to reverse sensitivity and potential conflict between incompatible activities. Ms Swan stated that the use of the LAeq (t) descriptor was an important change and reflected the New Zealand Standards. Attendance Councillor Pullar joined the meeting at 11:30 am Ms Swan stated that new noise limits for new zones like the Mixed Use Zone have been added and the noise limits for the business and industrial zones have been increased. New controls for frost fans, bird scarers, wind turbines, helicopter landing areas have been introduced as these activities where essentially not specifically addressed in the OWDP. New rules for activities adjacent to State Highways and the Edgecumbe Dairy Manufacturing Site were also contained in the PWDP. Ms Swan highlighted some of the key recommendations from her report. In terms of Day and Night Time limits, Ms Swan stated that her recommendation was to increase the daytime period so that it applied from 7am to 10pm on all days including public holidays as this better reflected modern lifestyles and commercial activities. She recommended that the time periods apply across all zones, providing greater flexibility for noise generating activities, without changing the noise limits themselves. She stated that the expectation of quiet was restricted only to night time. She stated that the only change to the actual zonal noise limits was to the Mixed Use Zone where she recommended that the Residential noise limit apply if the adjoining site was utilised for a residential activity that was established when the PWDP was notified. The recommended change would enable the area to transition to a more commercially focussed zone, but better recognised and maintained the amenity of the existing residential activities. Ms Swan stated that in her experience, compliance with residential noise standards had not been a major deterrent in the past to the establishment of businesses in what was now proposed to be the Mixed Use Zone. The recommended change to the noise limits was consistent with the new policy recommended for the Mixed Use Zone as part of other hearings. In response to questioning regarding the possibility of noise proofing existing residential dwellings, Ms Swan stated that, while this was possible, it was costly to retrofit existing buildings. Ms Swan stated that there were a large number of submissions on the Rural Zone noise limit and related issues such as excluded activities and reverse sensitivity. Ms Swan stated that she carefully considered how best to balance the needs of the rural activities, residents and industry in relation to the objectives and policies in the PWDP. She recommended that the rural noise limit be retained at 50 dBLAEQ during the daytime and 40 dBL AEQ at night-time as notified as this reflected that residential activities were an important part of the rural environment. It also reflected that a wide range of typical and important rural production

A486437 Page 3 of 33 activities were exempt from having to comply with the rural noise limits already such as crop spraying and harvesting. Ms Swan stated that some changes have been recommended to clarify those exemptions, including adding helicopters (but not when helicopters were used for frost protection) to the list.

1.1.5 Frost Protection Ms Swan noted that the OWDP required fixed frost fans to comply with the rural noise limits. However it did not control mobile frost protection machinery or helicopters. She noted that helicopters were commonly used for frost protection and this use was differentiated from other farming or horticultural activities due to the timing of the activity in the very early morning and the relatively fixed nature of the activity. Ms Swan recommended that all machinery used for frost protection comply with the 55 dBLAEQ limit (which was 15 dBLAEQ above the normal night time limit). As set out in her report, Ms Swan stated that this limit was consistent with the Western Bay of Plenty District Council’s limit and could be met by at least some frost protection machines. Ms Swan stated that by imposing a limit (as opposed to having no limit or a higher limit as sought by some submitters) meant that owners must consider their options, choice of machine, orientation and location relative to affected persons. She believed that this balanced the amenity of residents with the limited seasonal use of frost fans and the consequences of having no frost protection. Ms Swan stated that she considered the rule to be an effective and efficient method to manage the effects of noise generated during frost protection activities and treated all frost protection methods (mobile, fixed and helicopters) equally. Ms Swan stated that related to the establishment of frost fans was the issue of new dwellings being constructed near existing frost fans, which was essentially the reverse sensitivity effects and controls requested by Horticulture NZ. Ms Swan stated that the main problem with introducing a rule related to the location of dwellings was that it would not address reverse sensitivity effects from mobile frost protection or helicopters. She noted that dwellings were a permitted and legitimate activity in the rural area and the most practical and efficient method was to manage noise from the frost protection activities themselves.

1.1.6 Bird Scarers Ms Swan stated that similar issues arose in relation to bird scarers and submitters sought both less restrictive and more restrictive rules. Ms Swan noted that in the OWDP, there were no specific noise or other controls for bird scarers, other than they must be operated in accordance with best practical options to meet section 16 of the RMA. She stated that in terms of submitters who were concerned about the effects of bird scarers the PWDP contained specific rules to manage their effects. She noted that the rules address both the gas gun type (discrete sound) and variable noise types (distress calls and other sounds) of bird scaring devices. Ms Swan stated that a number of submissions related to the Advice Note, which stated that a separation distance of 420m was one way of complying with the rule (for certain types of gas guns only). Ms Swan stated that she supported the submissions that identified that the Advice Note could cause confusion and the PWDP should simply contain a noise standard and she recommended that the Advice Note be deleted. Ms Swan stated that due to the variable nature of bird scarers and terrain which affected noise levels, as well as potential changes in technology, a generic permitted setback distance from devices to dwellings that would avoid unreasonable adverse effects was unable to be determined. Ms Swan stated that while she appreciated that bird scarers were disruptive for residents, the

A486437 Page 4 of 33 recommended rule achieved a balance between enabling important rural activities and ensuring some protection for residents. Ms Swan stated that she recommended changes to the rules to clarify where noise measurements should be taken from.

1.1.7 Reverse Sensitivity Noise Ms Swan stated that a number of submissions were received in relation to reverse sensitivity, particularly between rural activities and dwellings. Submissions were also received in relation to the Edgecumbe Dairy Manufacturing Site, railway corridors, industrial land, forestry, state highways, geothermal plant and hunting reserves. A number of factors were taken into account when considering these submissions, including the ability of the activity generating the noise to mitigate or control effects within their boundary, timing and frequency of adverse effects, scale and magnitude of the effect, significance of the infrastructure and whether other rules already control the effect. Ms Swan stated that based on those types of considerations, the objectives and policies of the Plan, she was recommending the addition of new rules that related to the design and construction of new noise sensitive activities near the Edgecumbe Dairy Manufacturing Site, railway corridors and SH 34. She stated that this approach was consistent with the PWDP approach to significant infrastructure such as the two airports, SH 2 and SH 30. Ms Swan stated that a similar analysis was carried out in relation to the submissions that addressed other types of reserve sensitivity, particularly odour. She stated that following that analysis, which was included in her report, she considered that no additional rules were needed. In the case of odour, effects were largely managed by the Regional Council. She stated that the onus should be on the entity not to produce objectionable odour beyond their boundary. In her opinion it has not been demonstrated by submitters that it was necessary or unavoidable for land in other ownership effectively to act as mitigation for their activities. Ms Swan stated that she expected that Fonterra would provide additional evidence in relation to their submission, particularly the spray irrigation of wastewater, and she would be pleased to comment further once she had heard their evidence. Ms Swan noted that the PWDP had a strong policy basis (referring to objectives and policies in Chapter 3) against which reserve sensitivity effects could be considered when resource consent was required for an activity e.g. a second dwelling or other types of activity not provided for as a permitted activity in the relevant zone.

1.1.8 Other topics Ms Swan stated that her recommendations for temporary activities, surface of the water and relocated dwellings were hopefully quite clear and she did not propose to summarise them again. She stated that relatively few submissions were received and few if any sought conflicting relief. The meeting adjourned from 12:10 pm to 1:00 pm.

1.2 Submissions and Further Submissions The Chairperson introduced the District Plan Hearings Committee. He outlined the hearings process.

1.2.1 Brigid Buckley, Fonterra: 98 Refer to tabled document 334H-Q.

A486437 Page 5 of 33 Brigid Buckley, National Policy and Planning Manager for Fonterra, presented on behalf of Graeme Mathieson (Environmental Planning Consultant) and put in his apologies for being unable to attend today’s hearing. Ms Buckley read the tabled submission on behalf of Graeme Mathieson (refer to tabled document 334H-Q). Ms Buckley stated that Fonterra supported the majority of the recommendations and comments in the section 42A report including the introduction of specific noise provisions for the Edgecumbe Dairy Manufacturing Site, greater flexibility for the maximum quantity of quarried material for use on the same site (farm quarry) and the exclusion from the Earthworks definition to exclude typical farming activities. Ms Buckley stated that they disagreed with the recommendation to reject Fonterra’s submission to introduce a new rule requiring a 150 m separation between “sensitive activities” and buildings that house animals, animal effluent and dairy factory wastewater storage or disposal facilities and intensive feed storage areas. Ms Buckley stated that allowing the establishment of sensitive activities in close proximity to existing rural production activities was contrary to sound resource management practice and the purpose and principles of the RMA. She referred to a number of other councils who were including rules in their new District Plans that required the separation of incompatible activities in rural areas. She stated that it was also inconsistent with objectives and policies within the Regional Policy Statement. Ms Buckley stated that while the Proposed Whakatāne District Plan had a very good policy regime with regard to avoiding reverse sensitivity effects, she did not consider that there were adequate rules to back this up. Ms Buckley stated that Fonterra’s submission opposed the Rural Plains Zone subdivision provisions and was seeking an increased 40 hectare minimum lot size on “versatile land” to ensure productive land suitable for dairying was protected for continued agricultural use (and to reduce the potential for residential effects). She stated that the Edgecumbe Dairy Manufacturing Site and associated infrastructure were significant activities in the Whakatāne District and the current provisions could have implications for Fonterra when applying to renew its discharge permits with the Bay of Plenty Regional Council for the spray irrigation of dairy factory wastewater. Therefore Fonterra was seeking appropriate provisions to address potential reverse sensitivity effects. Ms Buckley requested that the wording of the relief sought in rule 11.2.7.2 be amended to focus primarily on avoiding potential reverse sensitivity effects arising from the establishment of new sensitive activities in the vicinity of existing rural production activities. The wording would read “A new sensitive activity shall be setback at least 150 metres from the following existing activities on a site under separate ownership…:” In response to questioning as to whether she was saying the separation distance should be solely on the neighbouring property, not on Fonterra’s property, Ms Buckley stated that this should be provided for with a new dwelling. She stated that introducing more sensitive activities into a rural environment, which was a production environment, was not desirable and she asked the Committee to consider the location of a house next to a production environment when that environment had been there for a long time. In response to questioning as whether she agreed that there was an obligation to keep adverse effects within Fonterra’s own boundary, Ms Buckley stated that she agreed with this obligation but in reality it was hard to achieve, particularly with noise and odour, as these were perception based. Ms Buckley referred to the situation that occurred in the Whangarei District that she referred to in her evidence where the Council had approved extensive rural residential subdivision near the Fonterra dairy farm and a number of new residents had lobbying against the renewal of the discharge permit which resulted in

A486437 Page 6 of 33 Fonterra being unable to continue to spray irrigate wastewater over approximately 10 ha of the farm. In response to questioning regarding the products that were sprayed, Mr Toohey advised that the products were categorised high or medium strength depending on the process that created them and reflected the level of nitrogen and phosphorous in the product, with high strength having a greater experience of odour. In response to questioning as to whether the discharge to land was the only option, Mr Toohey stated that Fonterra was looking ahead but there was no change to the discharge onto land in the foreseeable future. In response to questioning as to why the 150 m was proposed for a setback, Ms Buckley advised that ideally they would like 500 m or 1 km setback but they realised this was not a realistic proposition, however 150 m provided certainty that they can undertake the activity and have some protection.

1.2.2 Brendan Toohey, Environmental Manager for Central North Island, Fonterra: 98 Refer to tabled document 334R-Z. Mr Toohey read his tabled evidence (refer to tabled document 334R-Z) on behalf of Fonterra and provided an overview of Fonterra, an outline of Fonterra’s requirements under the Dairy Industry Restructuring Act 2001 and the relief sought by Fonterra to introduce new rules to protect Fonterra’s operations from reverse sensitivity effects. Mr Toohey stated that Fonterra actively submitted on planning documents throughout the country that directly affected its sites and/or operations, in order to minimise the possibility of reverse sensitivity issues. He stated that compatible zoning and careful planning provisions helped to minimise the potential for reverse sensitivity issues to arise. He stated that protecting Fonterra’s existing assets and operations in the district and the existing rural activities of its farmer shareholders from the effects of reverse sensitivity was a key concern for Fonterra. He stated that Fonterra sought the introduction of sufficient planning provisions to ensure the Proposed Whakatāne District Plan protected existing investment in place by preventing incompatible activities locating in proximity to established sites. In response to questioning in regard to paragraph 39, that proposals to locate within 150 m of a building that housed animals, an animal effluent or dairy factory wastewater storage or disposal facility or an intensive feed storage area, would move to a restricted discretionary activity, Mr Toohey was asked what he anticipated the matters that the Council would restrict its discretion to and he stated that it would be limited to reverse sensitivity and odour issues. Mr Toohey stated that often restricted discretionary activity was not notified on affected persons and he stated that this plan was silent on this matter. He stated that if the object of the rule was to deal with reverse sensitivity on adjoining landowners that needed to be flagged along with the change in amenity levels. In response to questioning as to the ability to place restrictions on reverse sensitivity at the subdivision stage, Ms Swan stated that her concerns relating to the definition of the rule around the discharge areas and the potential for creating problems with existing use rights as there were a number of existing vacant land blocks in the Rural Plains Zone. She stated that it was important for the Committee to consider the issue along with the subdivision rules to ensure a holistic approach to the issue of reverse sensitivity. The Senior Policy Planner stated that generally resource consents with restricted discretionary assessment criteria were not publicly notified. In response to questioning as to how to strengthen the notification provisions, the Senior Policy Planner stated that the activity status tables could be amended to ensure that these were notified. Ms Buckley stated that Fonterra took the complaints relating to reverse sensitivity seriously and these were often costly to mitigate on site. Mr Toohey stated that Fonterra was looking to the planning provisions to prevent land use conflict as resolutions through civil matters

A486437 Page 7 of 33 were difficult and challenging. He stated that Fonterra was operating as a good corporate citizen but they needed a planning system to acknowledge changes in amenity from time to time.

1.2.3 Brian Shaw: 186 Refer to tabled document 334AA. Mr Shaw read his tabled submission (refer to tabled document 334AA) and stated that the bird scaring noise limits in the proposed District Plan were not taking into account the many devices used to try and control the bird problems. Mr Shaw proposed the following: 1. Canons, frost fans and hail canons to be no closer than 420 m from a residence 2. Shot guns and car horns no closer than 200 m from a residence 3. More discrete bird scaring noises to be no closer than 100 m from a residence Mr Shaw set out the reasons for asking for minimal distances rather than decibels and stated that these would be much simpler rules to govern, staff would not have to measure and monitor noise and the number of noise events should be limited to 4 times per hour or 12 individual sounds per hour. Mr Shaw stated that any other bird scaring noises that might be invented and used should be made a discretionary activity or require a resource consent. Mr Shaw suggested that Edgecumbe should have a tougher set of rules around the township. In response to questioning Mr Shaw advised that he was not suggesting a prohibition and that 420 m was a distance set by the Napier City Council. Mr Shaw was asked about new dwellings and he stated that for new dwellings the people buying the property needed to be informed. Mr Shaw stated the bangers (bird scaring devices) were controllable by volume. Mr Shaw advised that he had canons 50 m from his house.

1.2.4 Linda Conning, Eastern Bay of Plenty Branch of the Royal Forest and Bird Protection Society Inc: 97 Refer to tabled document 334AB. Ms Conning read her tabled submission on behalf of Eastern Bay of Plenty Branch of the Royal Forest and Bird Protection Society Inc (the Society) (refer to tabled document 334AB). Ms Conning stated that the Society’s primary concern was the earthworks rules and she believed that it would be much clearer to state in the rules that earthworks in the Rural Plains and Foothills Zones were permitted, except as provided for in Chapters 15 and 17, with an Advice Note located upfront that earthworks in the Rural Coastal and Rural Ōhiwa Zones were located in Chapter 17. Ms Conning stated that there was no justification provided for increasing permitted thresholds for the Coastal Zone from 200 m2 or 100 m3 to 400 m2 and 200 m3. The section 42A report did not address the Rural Coastal and Rural Ōhiwa Zones. She stated that earthworks were an activity likely to cause significant adverse effects on the values of these zones in managing natural character and landscape. Ms Conning requested that the earthworks thresholds in the OWDP for Rural Coastal and Rural Ōhiwa Zones and ONFLs be retained. Ms Conning stated that separating out quarrying and mining helped, however, she requested that these be a non-complying activity in the Rural Coastal and Rural Ōhiwa Zones and ONFLs because the risk of adverse effects from quarrying and mining activities on sensitive coastal environments was high. Ms Conning stated that in those rural coastal zones a resource consent was necessary for a building so having to apply for an earthworks

A486437 Page 8 of 33 consent as part of that building was not adding a great deal of regulation as it existed already. Ms Conning stated that the assumption that there was a blanket “existing use right” presumed across all rural land in the District was dangerous as this depended on the nature of the activity and a blanket assumption could not be applied to all activities. Ms Swan advised that she agreed with Ms Conning that there was confusion and overlap between Chapters 11 and 17 and she had recommended in her opening comments amendments specifically to address this confusion that aligned with Ms Conning’s suggestions that would make the Proposed Whakatāne District Plan more user friendly. The Senior Policy Planner stated that for the Rural Coastal and Rural Ōhiwa Zones the quantums were identified through a landscape expert who had looked at the effects of earthworks and recommended a reduction in volumes in the Rural Ōhiwa Zone. Ms Conning requested a copy of that report and discussions to understand where the figures were coming from. In response to questioning regarding her comments about the concern relating to the blanket assumption of existing use rights, Ms Conning stated that the Society’s submission did not provide scope for her to say more, however, she wanted to raise it as a general concern and was not seeking a specific outcome. Ms Swan stated that she was recommending that the permitted earthworks volumes in the CPZ be reduced to be the same as the lower thresholds in the OWDP to enable greater assessment and management of adverse effects and she agreed with Ms Conning that this was unlikely to substantially increase compliance costs, as most activities in the CPZ required resource consents. The Senior Policy Planner stated that the recommendation was to drop the volumes in the Rural Ōhiwa Zone and she noted there was no Rural Ōhiwa Zone in the OWDP. She stated that landscape advice was taken when setting permitted earthworks volumes in areas of special character. She clarified that the recommendations in Chapter 17 was for quarrying and mining to be a discretionary activity not a non-complying activity.

1.3 Tabled submissions from submitters who did not appear at the hearing

1.3.1 Kelly Parekowhai, Transpower New Zealand Limited (Transpower): 67 Refer to tabled document 334AC-AD. The tabled submission from Transpower was received in support of the Consultant Planner’s recommended amendments to include the advice notes under clause 11.2.1.7 that clarify the relationship between the National Environmental Standards for Electricity Transmission Activities (NESETA) and the District Plan and provide a cross reference to Chapter 20 (Works and Utilities) in regard to earthworks undertaken within a National Grid Yard. Ms Swan advised that she would provide further information on NESETA.

1.3.2 Chris Horne, Chorus New Zealand Ltd and Telecom New Zealand Ltd (now Spark New Zealand Trading Limited): 41 and 42 Refer to tabled document 334AE-AG. The tabled submission from Chorus New Zealand Ltd and Telecom New Zealand Ltd (now Spark New Zealand Trading Ltd) was received in support of the Consultant Planner’s recommended amendments to rules for noise standards 11.2.3.2 – Table 11.2 for telecommunications cabinets in roads that refer to the Telecommunications National Environmental Standard to avoid confusion.

A486437 Page 9 of 33 The submitters requested exemption under the Earthworks definition for earthworks associated with the installation and maintenance of network utilities in roads as the environmental effects of earthworks associated with routine utility service works in existing roads would be no greater than the other exemptions provided for. The Consultant Planner was requested to provide clarification on whether the designation for earthworks in roads included telecommunications activities and to provide information on how other councils dealt with this matter. Please refer to the tabled document 334IQ-JL, tabled on 3 March 2015.

1.3.3 Mark Laurenson, The Oil Companies: 99 Refer to tabled document 334AH-AJ. The tabled submission from The Oil Companies was received in support of the changes recommended by the Consultant Planner to the definition of earthworks, however, the submitter recommended further amendments to the wording with some additions and deletions to clarify that activities undertaken in accordance with an NES may be permitted or require consent and to correct an error where it referred to “disposition” instead of “deposition”.

1.3.4 Gaye Payze, Whakatāne Harbour Care Group: 71 Refer to tabled document 334AK The tabled submission from the Whakatāne Harbour Care Group was received in support of the Consultant Planner’s recommendations in relation to their submission points regarding objectives and policies for Chapter 11.

1.3.5 Nassah Steed, Bay of Plenty Regional Council: 103 Refer to tabled document 334AL-AN. The tabled submission from the Bay of Plenty Regional Council was received in support of the Consultant Planner recommendations and sought confirmation that, given proposed new Rule 11.2.2 Advice Note 8 was accepted, a consequential amendment to Rule 18.2.2 Chapter 18 Natural Hazards was necessary. The Committee noted that the consequential amendment was not clear and clarification from the submitter was requested.

1.3.6 David Haines, Brookfield Multiplex Ltd: 100 Refer to tabled document 334AO. The tabled submission from Brookfield Multiplex Ltd was received in support of the Consultant Planner’s recommendation for submission point 2075 to clarify that signs that did not extend beyond the building profile were a permitted activity.

THE MEETING ADJOURNED AT 4:15 PM AND RESUMED AT 10:00 AM ON TUESDAY, 3 FEBRUARY 2015 IN THE COUNCIL CHAMBERS, CIVIC CENTRE, COMMERCE STREET, WHAKATĀNE

Present: Councillors R N Orr (Chairperson), D W Sheaff, J A Turner and G F van Beek In Attendance: L Swan (Consultant Planner), P Doorman (Senior Policy Planner), J Bell-Booth (Marshall Day Acoustics) and C B Hair (Administration Officer Policy)

Apologies: None

A486437 Page 10 of 33 1.4 Submitters Continued

1.4.1 Doug Spittle, Matthew Stulen, and Dr Stephen Chiles, New Zealand Transport Agency (NZTA) Refer to tabled documents 334AO-BE. Matthew Stulen, Resource Planner, Bay of Plenty Region, read his tabled submission on behalf of NZTA in relation to the proposed reverse sensitivity rule framework (refer to tabled document 334AQ-BE). Mr Stulen stated that in Rule 11.2.6, the track change version only covered Residential and Rural zones that adjoin a state highway or strategic road and NZTA sought to remove all zone references from the rule so that all noise sensitive activities within either 40 m or 80 m of the state highway must provide acoustic treatment, not just activities in the Rural and Residential zones. Mr Stulen stated that the reason for this request was that other zones provided for “noise sensitive activities”, such as the Commercial Zone, and these should also be subject to appropriate requirements for managing potential reverse sensitivity effects. Mr Stulen stated that NZTA has agreed, after further analysis, to a reduction in the proposed coverage of the noise effects corridor from 80 m across the whole state highway network, as sought in their original submission, to 80 m in areas of state highway with a speed limit of 70 km/hr or greater, and 40 m in areas of state highway with a speed limit of 70 km/hr or less. Appendix 3 (refer to tabled documents 334BD-BE) provided a case study of the spatial coverage this requested amendment would provide along the State Highway 2 through Tāneatua. He stated that the image showed the extent of coverage for 40 m and 80 m areas within which noise mitigation may be required, which represented a reduction in coverage that accounted for the variable speed environments of the State Highway network through the Whakatāne District. Mr Stulen referred to Appendix 2 of his evidence which set out the amendments to Rule 11.2.6 requested by NZTA (refer to tabled document 334BA-BC). He stated that in regard to Rules 11.2.6.4 and 11.2.6.5 there was some confusion over the ventilation system required to be installed when windows were required to be closed. He stated that NZTA required the reference to a ventilation system being installed in accordance with Rule 11.2.6.5 to be retained in Rule 11.2.6.4. He stated that it would not be possible to show “that windows are required to be closed to achieve the requirements” as Rule 11.2.6.4 makes no reference to a particular noise standard to be achieved. He stated that by retaining a reference to a ventilation system, Rule 11.2.6.4 would require a ventilation system. In response to questioning Dr Chiles stated that in essence the proposed wording would not provide people with a choice if they could not sleep from either too much noise (with windows open or a noisy ventilation system) or too much heat (if the windows were closed but there was no ventilation/cooling system to enable the windows to remain closed). He stated that to provide a genuine alternative to opening windows the ventilation system should provide thermal comfort i.e. be effective at cooling and also be less noisy than the road-traffic noise. He stated that the ventilation system was not referenced in the rules. In response to questioning regarding the effectiveness of double glazing, Dr Chiles stated that it was not effective in noise mitigation as the glass let through sound at the same frequency. Ms Swan stated that she was hearing that in trying to improve and simplify the rule she had inadvertently changed the meaning of the rule. She stated that the intent of the rule was to ensure that if the noise levels could not be met with the windows open then they needed to be closed and an appropriate ventilation system was to be installed to get air into the house. Mr Bell-Booth advised that while the rule could be rewritten to make the intention

A486437 Page 11 of 33 clearer, there was no scope to do so, however, the changes proposed by NZTA could be accepted to clarify the rule. In response to questioning regarding other noise reducing mechanisms such as walls or bunds, Dr Chiles stated that barriers were better solutions for protecting outdoor situations from noise. In response to questioning regarding the requirement to displace air 15 times per hour, Dr Chiles stated that the latest research, which occurred after NZTA submitted to the Proposed Whakatāne District Plan, suggested that 6 air changes per hour was sufficient. Mr Bell-Booth stated that the original study pre-dated heat pump air conditioning systems and he agreed with Dr Chiles that the studies had shown a much more efficient way was now available with a much lower rate of air changes provided through heat pumps. Mr Bell-Booth noted that there were a spectrum of solutions and a spectrum of costs and a heat recovery ventilation system with thermal insulation would comply with NZTA requirements, but at a greater cost. Ms Swan noted that there was no scope to delete the ventilation requirement and NZTA had expressed a preference to amend the rules. When questioned about the building code requirements Ms Swan advised that the ventilation standards of the New Zealand Building Code were the minimum ventilation requirements that must be met, however, they did not address the “thermal comfort” experienced by people when the windows were closed.

1.4.2 Dr Stephen Chiles, NZTA Refer to tabled document 334BF-BL. Dr Stephen Chiles, Acoustics Engineer and Principal Environmental Specialist for New Zealand Transport Agency, read his submission on behalf of NZTA (refer to tabled document 334BF-BL). Dr Chiles stated that NZTA had established a policy to proactively avoid and manage reverse sensitivity effects given that the state highway network was particularly susceptible to reverse sensitivity effects. He stated that while the most effective reverse sensitivity control from a purely acoustics standpoint, would be to exclude all new sensitive activities from a buffer area around state highways, this was not a sustainable approach to the management of resources nor would it achieve good urban design guidelines. He stated that NZTA’s reverse sensitivity policy promoted a balanced approach to allow managed development near state highways. In his opinion, this was an appropriate method of addressing reverse sensitivity whereby the goal was to minimise adverse effects but not necessarily eliminate all potential complaints, disturbance or annoyance. Dr Chiles stated that the NZTA policy had two main elements, setbacks and acoustic treatment of buildings. For this plan the NZTA had made submissions primarily on rules relating to the acoustic treatment of buildings, to address effects on sleep disturbance and indoor amenity. He stated that the NZTA submission did not provide scope for further setback provisions and he would therefore discuss acoustic treatment. He stated that he considered the 80 m and 40 m setbacks to be an appropriate and pragmatic approach. Dr Chiles stated that the Proposed Whakatāne District Plan restricted reverse sensitivity controls to only some state highways and excluded SH 38 (Murupara to Rotorua) and he stated that in order to control adverse effects, it was important that the reverse sensitivity controls applied to land by all state highways in the district. Dr Chiles stated that the Proposed Whakatāne District Plan placed reverse sensitivity controls based on zoning rather than state highway characteristics (i.e. speed). Dr Chiles stated that the application of reverse sensitivity controls should be based on the speed limit directly and that limiting the rule to only the rural and residential zones did not allow it to

A486437 Page 12 of 33 be applied to the range of noise sensitive activities provided for in other zones. This would ensure that all noise sensitive activities would be effectively managed regardless of zoning. In response to questioning regarding the drop in noise levels from 100 kph to 70 kph, Dr Chiles stated that there was generally a drop of 3-4 decibels. Dr Chiles stated that ideally noise maps would be generated for each section of the state highway, however, the network could be carved into simple steps where the zoning and speed limits tied up so that there would not, for example, be a residential area on the outskirts of town with a 100 kph speed limit. Dr Chiles stated that the rule in Table 11.2 that required dwellings and habitable spaces to be acoustically treated when located in a non-Residential or Rural zone was not sufficient as the rule did not require consideration of noise from the state highway or other noise sensitive activities. Ms Swan when queried as to why she had not considered it appropriate to apply the rules to noise sensitive activities in all zones (not just residential and rural), stated that the rules in Table 11.2 already required dwellings located in zones other than Residential or Rural, such as Business, Commercial and Mixed Use, to achieve an internal design level of 35 dBLAEQ and she considered it appropriate to only focus on management of dwellings as opposed to all noise sensitive activities. Ms Swan acknowledged that while acoustic treatment would enhance the amenity of users of the noise sensitive activities, these facilities were not permanently used like a dwelling. Mr Bell-Booth commented that the difference between the zonal limit and the road noise was unlikely to create significant adverse effects on inhabitants. Dr Chiles stated that NZTA believed that getting people to spend money on noise mitigation was a practical way forward. He believed that this should apply to the Council’s main roads, not just to state highways, and he would advise the Council to protect its main roads. In response to questioning Ms Swan advised that the term strategic roads was not defined in the Proposed Whakatāne District Plan and she would recommend that the Committee, if it was considering introducing such a rule, would need to do so through a variation process . Ms Swan stated that her concern about using speed limits was that these could change without an RMA process and therefore the application of the rules could change. Dr Chiles agreed that a plan change would be required to add or remove speed limits to the District Plan maps.

1.4.3 Graham Millar, Whakatāne Mill Limited: 118 Refer to tabled document 334BM-BP. Mr Millar, Mill Manager, read his tabled submission on behalf of the Whakatāne Mill Limited (refer to tabled document 334BM-BP). He stated that the Planner’s report appropriately outlined the effect of the changes sought by the Whakatāne Mill. He stated that the noise limits proposed were appropriate and consistent with the Planner’s report and these should be adopted without further amendment. Mr Millar was asked if the Whakatāne Mill had considered the option of proceeding to formalise existing use rights through noise contours, as in the example of Fonterra, and he stated that the Whakatāne Mill had done work in the past with the Whakatāne District Council regarding noise surveys and he stated that there was so much variation depending on factors such as wind direction and temperature. He believed that the noise envelope of the business was stable however the perception of that noise was variable.

1.4.4 Richard Harkness and Dudley Clemens, Awakeri Quarries Limited: 68 Refer to tabled document 334BQ-DF.

A486437 Page 13 of 33 Richard Harkness, Consultant Planner, read his tabled statement of evidence on behalf of Awakeri Quarries Limited (AQL) (refer to tabled document 334BQ-DF). Mr Harkness stated that his statement of evidence addressed each of the AQL submission points relating to Phase Two of the Proposed Whakatāne District Plan hearings which included the following chapters - General Provisions, Rural, Subdivision and Activity Status, Definitions and Planning maps. He stated that there were a number of appendices to his evidence including: • Curriculum Vitae – Richard Harkness (Appendix A) • A statement of evidence by Gillian Cockerill, AECOM to Chapter 15 indigenous biodiversity Chapter on behalf of AQL (Appendix B) • AQL submission to the Proposed Whakatāne District Plan (Appendix C) • Summary details for AQL and Quarry Operations – Dudley Clemens – November 2014 (Appendix D) • Planning Map 509A (Appendix E) Mr Harkness stated that the District Plan Hearings Committee had already heard from J Swap Contractors Ltd (Swaps) in August 2014 when the topic of indigenous biodiversity was considered and expert planning evidence was presented by Gillian Cockerill of AECOM on behalf of AQL. He stated that the issues raised at the hearing were followed up by a subsequent site visit with Whakatāne District Council staff and further discussions with representatives from Swaps. He stated that Gillian Cockerill was no longer with AECOM and he had been engage to assist with these further discussions. He stated that a copy of Gillian Cockerill’s evidence was attached as Appendix B. He stated that this evidence identified that a sustained supply of mineral and aggregates was essential for the continued development of the Whakatāne District and the region for building, construction and roading projects associated with growth and to maintain and redevelop existing infrastructure. The evidence also identified a number of significant factors that would enhance a favourable situation for any quarry to operate efficiently and at its optimum level. In effect Mr Harkness stated that any planning provisions should be enhancing, rather than restrictive on such a critical operation. Mr Harkness stated that under the RMA the consented AQL quarry operations enjoyed existing use rights, however, any future expansion would trigger the need for resource consent as a discretionary activity. He stated that consent was also triggered by the clearance of indigenous vegetation rule within scheduled sites which had immediate legal effect. Mr Harkness stated that it was a priority for AQL to address the policy matters and avoid a possible situation where a future resource consent would be difficult to obtain due to restrictive policy provisions, or complications arising where there were expectations for environmental protection or preservation that cannot be provided within the future expansion area for the AQL quarry.

1.4.4.1 Activity Status, Definitions, Planning Maps Mr Harkness stated that as previously addressed by Gillian Cockerill at the August 2014 hearing, AQL sought the deletion of Significant Indigenous Biodiversity Sites (SIBs) BS100B from Planning Map 509A which was shown over the AQL quarry site. He noted that after the August 2014 hearing representatives for Swaps, Dudley Clemens and himself, met with Council staff members, Shane McGhie and Penny Doorman, to consider if there was any alternative way forward to address the conflict between SIBs Site BS 100B and the consented quarry operations. He stated that it was recognised that there was an inescapable conflict as both the existing quarry and the SIB site sought to occupy the same area.

A486437 Page 14 of 33 Mr Harkness stated that given the policy direction under the RMA and the Regional Policy Statement, once an area’s indigenous vegetation was confirmed as being significant and of national importance, the future for AQL becomes uncertain and likely to be highly restrictive. Mr Harkness stated that in his opinion, if a wider planning approach was adopted, not purely from an ecological aspect, then all such matters under Part 2 of the RMA can be given due consideration, including economic, social and cultural well-being factors. This included recognition of the AQL operation having a long history of supplying the local community, the removal of vegetation and overburden from the consented quarry area and ongoing modification to the site for access and stockpiling. Mr Harkness stated that this approach would enable the quarry operations to continue and expand in the future. This approach was recognised under Part 2 of the RMA, excluding minerals from s5 (2) (a) in terms of sustaining the potential of natural and physical resources, because of their finite qualities. Mr Harkness stated that to assist the Committee with understanding the wider benefits of the quarry operations and AQL in particular, Dudley Clemens had provided further details on 20 November 2014 which was attached in Appendix D. Dudley Clemens, J Swap Ltd, stated that following the hearing in August 2014, a site visit was conducted with staff to discuss the conflict between the proposed SIB site BS 100B and the AQL operation in order to establish potential solutions that would suit both parties interests. The Senior Policy Planner in response to questioning regarding the boundary of the SIB in tabled document 334DF advised that the original boundary line was drawn from a desk top exercise. However it was recognised that this was an imperfect boundary and staff have worked with AQL, following a site visit, to redefine the boundary. In response to questioning as to whether the redefined boundaries represented a practical boundary for the next 10 years, Ms Clemens stated that, if the economy carried on in the same manner and developers continued to want material, the life of the quarry would be restricted significantly by the current SIB boundaries and he gave the example of the recent programme of stopbank works carried out by the Bay of Plenty Regional Council that used significant amounts of material from the quarry. He stated that, assuming resource consent could be obtained and the SIB was not a barrier to production, the quarry could have a long economically viable life of 50 years or more given the volume of material available. Mr Clemens stated that the land was Māori Freehold land which was leased from the landowners and the location of sites of value to the owners had been identified and none of those sites were located in the SIB. In response to questioning regarding the struggle the Committee would have if it chose to ignore the evidence presented by Wildlands, given the fact the Committee had no ability to challenge their ecological expertise, Mr Harkness stated that while AQL may have reservations about the label “significant” they were not challenging the ecological expertise of Wildlands, and did not believe that bringing in another ecologist to challenge the findings would help in this situation. Therefore AQL were recommending the Committee adopt another approach, which was to consider the wider perspective and overall judgement under Part 2 of the RMA. The Chairperson queried whether the overall broad judgement approach to balance economic benefits against environmental effects was able to be imposed in situations where SIBs were considered to be matters of national importance. Mr Harkness stated that the expansion of the quarry would require a resource consent in the future. Either at that time, or now through the District Plan process, the question of the importance of the SIB, and whether there was room to move the boundaries of the SIB to enable expansion, would need to be determined.

A486437 Page 15 of 33 In response to questioning as to how much of the SIB was needed in the future, Mr Clemens referred to the buffer areas as set out on the maps in Appendix D (refer to tabled document 334DB-DC) and stated that the area was largely drawn out in a radial fashion from the existing pit which had burrowed into the hill. He stated that the area was defined by the streams in the gullies and took into account the edge effects. He stated that the previous operator had not carried out the stripping and had burrowed into the hill, however, as a result of the Pike River tragedy, there was a need to widen the site to create a safer environment which would involve pushing into the SIB to get down to the good material. Mr Clemens stated that the operation of the quarry would close if it had restrictions to the edge of the pit as AQL needed to strip the material from the surface to get to the high quality material below. He stated that the maps in Appendix D largely represented the area needed for the future, which roughly represented a 50 year timeframe. In response to questioning Mr Clemens stated that AQL relied on geologists to accurately estimate the volumes of material within a hill, although the quality could be subjective, there was generally a correlation between the existing pit face and the geology of the site and as this was a greywacke quarry there was a greater degree of accuracy. In response to questioning as to whether the quarry could operate from a different location, Mr Clemens stated that the economics of setting up a new hard quarry in New Zealand were prohibitive, even with a willing land owner, given the large capital commitment required and the length of time it took from obtaining consents to extracting material for sale. The economic benefits to the community could be quantified, however, the information on exhaustion of existing supplies from quarry operators was extremely commercially sensitive information and he doubted whether it would be made publicly available. Mr Clemens stated that AQL was committed to working at this site for a long period of time. Mr Clemens requested that the extent of the SIB BS 100B should only apply to those areas not required for both current and future quarry activities. Mr Clemens stated that Swaps did not have any other quarries in the Whakatāne District.

1.4.4.2 Rural Character Definition – Chapter 21 Mr Harkness requested that the Rural Character definition be amended to recognise that rural activities such as quarrying and mining were legitimate land use activities in the Rural zones and form part of the rural character. He requested that the following wording be added: (j) infrequently occurring rural based industry

1.4.4.3 Rural – Exploration, Quarrying and Mining in Rural – Chapter 7 Mr Harkness requested that rules 7.2.9.2 and 7.2.9.3 be deleted as these rules provided standards relating to mining activities which were discretionary activities in the Rural zones therefore those specific standards were not required. He stated that rather assessment should be on a case by case basis.

1.4.4.4 Rural – set back distances for sensitive activities – Chapter 7 Mr Harkness requested that Rule 7.2.3 include a requirement for a 500 m setback from dwellings or other similar sensitive land uses from the boundary of a mineral extraction and process site (including the associated access). Non-compliance with the setback to be assessed as a restricted discretionary activity. In response to questioning as to the rationale for the 500 m distance, Mr Harkness stated that this distance provided a good degree of noise reduction. In response to questioning as to whether he would consider it beneficial if the rule required written consent from the quarry operator, Mr Harkness stated that if the house was proposed close to the quarry then conditions relating not just to noise but to visual effects and dust nuisance would also

A486437 Page 16 of 33 need to be imposed. He stated that the quarry operator needed to be kept aware of what land use was proposed and limited notification provisions would be useful. Mr Clemens advised that AQL did not receive complaints about the operation of the quarry from neighbours.

1.4.4.5 Subdivision – Chapter 12 Mr Harkness stated that AQL opposed the provisions of Rule 12.4.4 and sought that it be amended to include new provisions with respect to the subdivision of property that was located within 500 m of mining and activities and that the creation of additional lots within 500 m of established mining activities be treated as a restricted discretionary activity with appropriate assessment criteria to assess potential reverse sensitivity effects. Mr Harkness stated that the objectives and policies were in place to deal with reverse sensitivity, however, this needed to flow through to the rules.

1.4.4.6 General Provisions – Chapter 11 Mr Harkness stated that AQL opposed the specific activity limits proposed for prospecting and exploration in Rule 11.2.3.2 associated with blasting. He stated that the setting of vibration standards for prospecting and exploration were considered to be more appropriate as conditions of resource consent than a rule in the District Plan given that the use of explosives requires resource consent. He stated that the requirement for residents within a 2 km range to be advised in writing no less than 5 working days prior to the blasting occurring was considered to be onerous, unreasonable and impractical. Ms Swan stated that she understood the correct public notification process was followed to notify the list of documents incorporated into the Proposed Whakatāne District Plan. Mr Bell-Booth explained that the standard Din 4150-2:1999 and Part 3: 1999 provided the standard for structural damage to property at extreme levels of vibration. He stated that while there could be a human perception of acute vibration which could be annoying, it did not translate into structural damage. The standard was developed to ensure that people’s houses did not fall down through inappropriate blasting. Mr Harkness was asked if he believed the standard would provide useful guidance to the applicant about the information that would be assessed. If the applicant did not comply with the District Plan resource consent would be required. Mr Harkness stated that the logic was good as long as it was not restrictive.

1.4.5 Fraser Graafhuis and Tim Fergusson, Mighty River Power Limited: 67 Refer to tabled document 334DG-EF. Mr Fergusson read his statement of evidence on behalf of Mighty River Power Limited (refer to tabled document 334DG-DO) and stated that Mighty River Power’s assets, operations and interests were presented at an earlier hearing on the Strategic Chapter of the Proposed Whakatāne District Plan and Fraser Graafhuis was available to answer any questions. In summary Mighty River Power’s interests related to the Kawerau Geothermal system and the assets and activities associated with Mighty River Power’s Kawerau Geothermal Power Station. Although the power station itself was within the Kawerau District, the production and reinjection wells, wellheads, pipelines and geothermal drilling activities extended into the Whakatāne District. He stated that the geothermal system included areas of Rural Foothills and Rural Plains zones, and the establishment of additional dwellings and other noise sensitive activities in the vicinity of the Kawerau Geothermal System had the potential to create reverse sensitivity effects that may restrict the operation of existing and consented geothermal electricity generation activities.

A486437 Page 17 of 33 Mr Fergusson stated that the objectives and policies contained in Chapter 11 were generally consistent with the National Policy Statement on renewable electricity generation (NPS REG and the submission points were mostly focused around structural changes and removing duplication and overlap for plan efficiency, supporting provisions that give effect to the NPS REG and requesting relatively minor changes to rules and standards for clarity. Mr Fergusson stated that Mighty River Power requested that “any geothermal electricity generation plan, including associated well heads and geothermal piping” be added to the list of specified activities in Rule 11.2.7.1 (now renumbered 11.2.11) Odour and other residential effects, to ensure that no dwellings were to be sited closer than 300 m. Ms Swan advised that the drilling of new wells was covered under the construction noise standard. Ms Swan asked if there was a boundary to the geothermal field that could be definable and Mr Fergusson referred to the current resource consents held by Mighty River Power, which included a plan of the potential injection zones and land covered by the consent (refer to tabled document 334DP-EF) that showed the potential injection areas and exploration areas that extended into the Whakatāne District. He stated that he was not sure if this plan was suitable to establish the extent of the area. Mr Graafhuis stated that the Regional Policy Statement included a defined area of the geothermal resource. Mr Graafhuis stated that while Mighty River Power had agreements with existing owners, he queried what their obligations would be if the land was subdivided and new dwellings were built. In response to questioning as to the nature of the restricted discretion Mighty River Power was asking for, Mr Fergusson stated that it would be consistent with NZTA requirements for noise, vibration and glare and he agreed that it could be a permitted activity.

1.5 James Bell-Booth, Marshall Day Acoustics Refer to tabled document 334EG-GP Mr Bell-Booth through a power point presentation (refer to tabled document 334EG-GP) discussed noise technology and spoke about community annoyance towards noise. He stated that an acoustics engineer identified objectively the subjective response to noise and stated that the annoyance quantity was influenced by many factors including mood, community context, a person’s thoughts and attitudes and therefore there was a personal response to noise levels and he stated that some people were more sensitive to noise than others. Mr Bell-Booth stated that while he was not professing that noise measurement was absolute, it did have some structure that covered the vast majority of people. The current noise standards set out the methodology of measuring sound. He referred to NZS 6801:2008 “Acoustics – Measurement of Environmental Sound” and NZS 6802:2008 “Acoustics – Environmental Noise” which set the daytime, evening and night time upper limits. Mr Bell- Booth advised that the standards were also based on the World Health Organisation’s (WHO) Guidelines. He was recommending 50 dBLAEQ in rural zones during the day and 40 dBLAEQ and 70 dBLAmax at night as these reflected these standards and WHO guidelines. He stated that a maximum limit was set during the night to protect against sleep disturbance. Mr Bell-Booth stated that he was not saying that the 50 dBLAEQ was acceptable to everyone, however, for most people it was an acceptable level of annoyance and provided for a certain level of amenity. Ms Swan advised that the proposed limit of 50 dBLAEQ was consistent with the rural limit contained in the Rotorua, Western Bay and Waikato district plans. In response to questioning as to how noise from bird scarers was mitigated Mr Bell-Booth advised that the mitigation came from limiting the number of events that could generate

A486437 Page 18 of 33 that peak noise during a period of time, generally no more than 3 in one minute and 12 in an hour. Ms Swan stated that as the rule was currently worded it applied to each individual device and did not stop a person being affected by up to six devices, each limited to 12 blasts in an hour, generating 72 potential blasts in total. She stated that the rule provided for a person to have up to six devices. Mr Bell-Booth stated it was improbable that each blast would occur at the same time. He stated that as the blasts were not happening simultaneously they were not considered cumulative. Mr Bell-Booth stated that the level of effect has to be determined and he stated that for some people just hearing the bird scaring device was an effect, but, from an acoustic engineering perspective when assessing the effects, the audibility in itself did not cause the activity to be non-complying. Mr Bell-Booth was questioned on the science behind setting the limits of the number of events per hour and the effectiveness of scaring away birds and he stated that there had been no peer review study of the effectiveness of scaring birds. In terms of cumulative effect Mr Bell-Booth stated that the common rule of thumb was that two noise sources of the same level increased the noise by 3 dB, three sources by 5 dB and 10 sources by 10 dB. Mr Bell-Booth stated that under section 16 of the Resource Management Act there was a duty to avoid unreasonable noise and every occupier of land “shall adopt the best practicable option to ensure that the emission of noise from that land…does not exceed a reasonable level”. He noted that the best practicable option was defined in section 2 of the RMA. He stated that the duty to adopt the best practicable option was in addition to the duty to comply with any district plan noise limits. This was confirmed by the Environment Court that held that a duty in section 16 was not necessarily avoided by compliance with a district plan rule on noise control. Mr Bell-Booth advised that he did not support the setback option for frost fans and bird scaring devices as suggested by submitters, although he could understand the attractiveness of the simplicity of this methodology, but he believed that it did not accurately reflect the noise effects on properties which were determined by a complex set of factors including topography of the land and the nature of the different devices. He stated that the balance lay in providing a level of protection that was suitable for receivers of the noise but afforded a reasonable opportunity for orchardists to protect their crops. In regard to helicopter noise Mr Bell-Booth stated that he did not believe helicopter use for frost protection was acceptable. He stated that helicopters were used less frequently these days for frost protection as they were not seen as effective as other methods. Mr Bell-Booth stated that the technology kept changing and the rule needed to deal with this quick changing technology. Mr Bell-Booth in response to questioning clarified that the notional boundary was 20 m from the façade of a house in a rural area. In response to questioning regarding the difference between train and road noise Mr Bell- Booth advised that there was a more general acceptance of train noise than road noise and it was considered less annoying than road noise and there was also less train traffic.

1.6 Tabled submissions from submitters who did not appear at the hearing

1.6.1 Stuart Ryan, New Zealand Heavy Haulage Association Inc (NZHHA): 82 Refer to tabled documents 334GQ-HL. The following tabled submissions from New Zealand Heavy Haulage Association Inc were received in support of the Consultant Planner’s recommended amendments to delete Rule 11.2.15 for the re-siting and relocation of a building for use as a dwelling and to modify

A486437 Page 19 of 33 Rules 4.4.1.2.5 and 4.2.1.2.6 to ensure the activity status was the same as for dwellings under Rule 4.4.1.2.1. • Letter from Stuart Ryan, Barrister, dated 29 January 2015 advising the NZHHA accepted the Consultant Planner’s recommendations to accept NZHAA’s submission and would not be appearing at the hearing (refer to tabled document 334GQ) • Submission of Rowan Ashton, Counsel for NZHHA (refer to tabled document 334GR-GZ) which set out the Environment Court decision NZHHA v the Central Otago District Council where the court found that, in terms of environmental effects under the RMA, there was no real difference between in situ construction of a dwelling and relocation of a second-hand dwelling and rejected the need for a bond when it was not imposed as a requirement for a newly constructed in situ building. Mr Aston stated that relocated buildings should be subject to the same controls as new buildings. He supported the Consultant Planner’s recommendation that relocation be a permitted activity subject to performance standards based on the Central Otago decision as this approach provided an appropriate degree of regulation while enabling the relocation of buildings. • Statement of evidence of Roger Vincent, House Transporters Ltd, a local operator based in Te Puke (refer to tabled document 334HA-HL). Mr Vincent attached photographs of relocations carried out by his company. He supported the Consultant Planner’s recommendations and stated that in his view there was no good reason why management through performance standards as a permitted activity cannot address potential problems. THE MEETING ADJOURNED AT 4:00 PM AND RESUMED AT 9:30 AM ON THURSDAY, 5 FEBRUARY 2015 IN THE COUNCIL CHAMBERS, CIVIC CENTRE, COMMERCE STREET, WHAKATĀNE

Present: Councillors R N Orr (Chairperson), D W Sheaff, J A Turner and G F van Beek

In Attendance: L Swan (Consultant Planner), P Doorman (Senior Policy Planner) and C B Hair (Administration Officer Policy)

Apologies: None

1.7 Submissions and Further Submissions continued

1.7.1 Gwyn Morgan, Federated Farmers of New Zealand: FS133 Refer to tabled document 334HM-HS. Mr Morgan read his tabled submission on behalf of Federated Farmers of New Zealand (Federated Farmers) (refer to tabled document 334HM-HS). Mr Morgan stated that Federated Farmers generally supported the intent and approach taken by the Council staff to simplify and clarify the earthwork rules, however, they believed further relief was required. Mr Morgan stated that Federated Farmers agreed with the averaging over a five year period, which solved the problem of large projects being undertaken in any one year, such as moving or altering races, however, they did question if the 10,000 m3 over a 5 year timefame was sufficient with farms getting larger over time. Mr Morgan stated that a new raceway could use up to 2500 m3 of bedrock for every 1 km. He noted that farmers were taking the opportunity when fencing off waterways to restructure their farms and develop new raceways. He stated that the replacement of gravel outside cowsheds could potentially use up the allocation. Mr Morgan stated that Federated Farmers supported the farming exclusions for earthworks associated with a farm building platform or access track and accepted the Consultant

A486437 Page 20 of 33 Planner’s recommendations to delete the words “within a riparian margin”, however, they sought further clarification on the permitted activity status of the maintenance of stock raceways/farm tracks. Mr Morgan stated that rewording the definition of earthworks slightly would provide greater certainty and be consistent with the Western Bay of Plenty District Council definition. He asked that the exclusions in (a) and (b) read “a. stock grazing or movement, farm raceways or farm stock tracks; b. normal agricultural and horticultural practices such as cultivation, ploughing and harvesting;” Ms Swan stated that what was intended was to separate out mining and quarrying from earthworks activities so the 10,000 m3 over 5 years related to the removal of rock and pumice from quarrying and there were no earthworks limits in the Rural Plains or Rural Foothills zones unless in an Outstanding Natural Feature and Landscape or Significant Amenity Landscape area. In regard to noise limits Mr Morgan requested that the rural noise limits be raised to 55 dBLAEQ 24 hours a day, seven days a week in all four rural zones. He stated that most farmers started milking before 7 am and traditional milking times were now more variable. He stated that farmers operate outside the 7 am to 10 pm noise limit. Mr Morgan stated that Federated Farmers were concerned about the issue of reverse sensitivity and the potential of subdivision to circumvent existing use rights. Mr Morgan also requested that table 11.2 be amended to add to the exemption list the following wording: “Activities required for primary production activities, for example dairy milking machines or packing facilities, harvesting, spraying and planting machinery.” In regard to bird scaring devises Mr Morgan stated that Federated Farmers did not believe this rule could be policed or enforced easily. He stated that while Federated Farmers supported the deletion of the 420 m set back advice note. He requested that Rule 11.2.3.2. be amended to be consistent with the Western Bay of Plenty District Council performance standard as follows: “…Where audible sound is used over a short or variable time duration, no event may result in a sound level greater than 50 db AEL 65 dB AESL. Mr Morgan stated that for Federated Farmers the issue was related to maintaining consistency with cross boundary matters. He stated that he had been involved with the Western Bay of Plenty reverse sensitivity issues and this had been the result of that process.

1.7.2 Lynne Wharfe, Horticulture New Zealand and New Zealand Kiwifruit Growers Inc: 126 Refer to tabled document 334HT-IE. Ms Wharfe read her tabled submission on behalf of Horticulture New Zealand (Horticulture NZ) and New Zealand Kiwifruit Growers Inc (NZKGI) (refer to tabled document 334HT-IE). She stated that with her today were the following growers: • Mark Hudson (also a Director of Eastpack and the NZKGI Elected Representative for Edgecumbe) • Grant Luscombe • Sjoerd Overdevest • Craig Julian

1.7.2.1 Objectives and policies Ms Wharfe stated that the general provisions of interest to Horticulture NZ and NZKGI related to noise and earthworks. She agreed with the Consultant Planner’s comments that

A486437 Page 21 of 33 some of the mechanisms to address noise related issues were through the subdivision and setback provisions of the District Plan and agreed that noise should not be isolated from these provisions. Ms Wharfe stated that it was recognised that some of the activities that were carried out as part of horticultural operations can be noisy. However, the use of vehicles, machinery, bird scarers and frost protection devices were critical to the ability to produce high value horticultural products and it was important that the District Plan provided an appropriate framework to enable horticultural operations to undertake activities in the rural environment that were essential to production. Ms Wharfe stated that the management of the potential for reverse sensitivity effects was a critical issue that the District Plan needed to address, particularly in respect to the potential for complaints from noise generated as part of production activities. Ms Wharf stated that it appeared that their submission on Objective Gen 1 Policy 4, requesting that the words “rural production activities” be added to the Policy had not been considered as the Consultant Planner’s comments related to the Edgecumbe Dairy Manufacturing Site only. In response to questioning Ms Wharfe stated that she did consider that the words “lawfully established activities” were sufficient and she requested that the Policy clearly state “rural production activities”.

1.7.2.2 Earthworks Ms Wharfe stated that Horticulture NZ and NZGI were concerned with the recommendation that all earthworks in the Rural Coastal and Rural Ōhiwa Zones would require resource consent. She stated that there were some growers located within these zones and the need for resource consent would increase their compliance costs. She stated that while many orchard earthwork activities would be covered by the exclusion from the definition of earthworks, Horticulture NZ and NZGI sought that root ripping in orchards be included in the exclusion as this was a common orchard activity that disturbed the soil. Ms Wharfe stated that the Consultant Planner’s recommendation to delete “within a riparian margin” was supported, as was the change to add “new” in respect of construction of roads, tracks and drainage channels. Ms Wharfe stated that they were concerned that the removal of trees and stumps could be caught by the current definition in the Rural Coastal and Rural Ōhiwa Zones and Horticulture NZ and NZGI were requesting that the definition exclusions also included the removal of trees and stumps.

1.7.2.3 Noise provisions Ms Wharfe stated that the Consultant Planner’s recommendation to apply daytime noise limits across all days of the week was supported as rural production activities were a 7 day a week operation and the same noise limits should apply across all days. Ms Wharfe stated that the daytime noise limit for the Rural Zones at 50 dBLAEQ was considered too restrictive and at the lower end of the recommended range for rural areas. Ms Wharfe stated that the Consultant Planner’s recommendation was determined following advice from Marshall Day Acoustics (MDA). However Ms Wharfe stated that MDA recently recommended a daytime noise limit of 55 dBLAEQ in the rural zones for the Whangarei District Council and stated that this limit would be appropriate and consistent with the guidelines in NZS6802:2008. Ms Wharfe noted that this was a different recommendation for a similar type district. Ms Wharfe stated that the advice provided by MDA to the Whangarei District Council was equally applicable to the Whakatāne District and would ensure that rural production activities were adequately provided for and she referred to the web link to access this report.

A486437 Page 22 of 33 Ms Wharfe stated that Horticulture NZ and NZKGI supported the inclusion of the exemptions from Table 11.1 and the recommendations of the Consultant Planner to delete the reference to 3 months and include “limited duration of seasonal in nature” as this would adequately provide for mobile plant. However she stated that the noise limits needed to be amended as set out in her previous statement, to ensure that there was adequate provision for fixed plant. Ms Wharfe noted that the MDA report to Whangarei identified that a 55 dBLAEQ limit would enable permanent rural activities to operate with relatively few restrictions. Ms Wharfe stated that there was no definition in the plan for a notional boundary. She stated that it was important to be clear as to how and where noise measurements were to be taken. Given that the Consultant Planner was recommending a range of changes relating to the notional boundary, she considered it would be appropriate to include a definition of a notional boundary in the Plan which related to the NZ Standards for noise as follows: “Means a line 20 metres from the façade of any noise sensitive activity, or the legal boundary, where this is closer to the noise sensitive activity”

1.7.2.4 Helicopters Ms Wharfe stated that she had been involved in work with the Agricultural Association and had written guidance notes that would soon be available on the website relating to the extent of councils’ controls regarding helicopters. She stated that on pages 6-7 of her submission she had set out a summary of these guidelines. Ms Wharfe stated that the RMA governed the noise emitted by airports (including intermittently used rural landing spaces) and required that this noise be reasonable and not excessive. The ”noise emitted by airports” did not include the noise of an aircraft once it was airborne and “excessive noise” did not include the noise emitted by an aircraft during flight or immediately before or after flight. Ms Wharfe stated that where a rural aircraft activity was necessary for farming, flying at a height legitimate for its activity, and obeying the duties and controls regulating on the ground noise emission and adverse effects, the activity should be provided for. The effects of airborne aircraft, even below 500 feet, cannot be considered or controlled by the RMA. She stated that the 500 feet rule was a height for safety, not a distance for noise control. She referred to the decision of the High Court in relation to the Dome Valley Resident’s Society Inc v Rodney District Council [2008] 3 NZLR 821 which was the leading case in respect of interpretation of the RMA and the use of aircraft and it clearly considered that aircraft in flight was not an issue to be addressed by the RMA. Ms Wharfe stated that there was potential for people to object to noise from aircraft, particularly where aircraft were operating at low levels near sensitive activities. She stated that the District Plan could manage the potential adverse effects of such complaints by ensuring that the Plan recognised the activity as a legitimate part of the farming or rural production activity in the rural area and included an appropriate policy framework to address such complaints. Ms Wharfe stated that the extent of the Council’s control was limited to the use of the land for the activity in relation to airports, including repairs and maintenance of aircraft and the construction of hangars, fuel storage facilities and other ancillary structures. In respect of overflying aircraft, control was limited to the noise associated with take-off and landing of the aircraft, not when they were in flight. Ms Wharfe stated that the two standards that refer to aircraft noise were intended to apply to infrequently used airports or landing areas and were not designed to be applied to operations such as agricultural aviation. Ms Wharfe supported the Consultant Planner’s recommendation that “rotary wing aircraft’ be added to list of exclusions in Table 11.2.

A486437 Page 23 of 33 In regard to helicopter landing areas, Ms Wharfe requested that Table 11.2 be amended to provide an exemption for helicopter landings when undertaking rural production activities on an intermittent and infrequent basis. She stated that the intent of the rule appears to be to manage where helicopters or aircraft were landing on a regular basis such as heliports or bases and this approach was supported and it was agreed that these did need to be controlled. However the intermittent use by farming activities was quite different because of the intermittent and infrequent use and so should not be captured by such provisions.

1.7.2.5 Helicopters for Frost Protection Ms Wharf stated that Horticulture NZ had been involved in a number of district plans and Environment Court cases where frost protections mechanisms have been the subject of debate. She stated that no council has sought to include controls on helicopters in-flight for frost protection within their plans and she thought that the recommended change was precedent setting. Ms Wharfe stated that Horticulture NZ did not support the addition of helicopters to the provision for frost fans as it considered that the Council did not have the jurisdiction to manage the noise from aircraft when they were in flight. Ms Wharfe stated that the recommendation to include helicopters in the provisions for frost fans appeared to be on the basis that the helicopter was less than 500 feet and the Civil Aviation Authority (CAA) requirement was that aircraft operate above 500 feet. However CAA provided an exemption for agricultural aircraft, so applying the 500 feet as a benchmark to agricultural aviation operations was not relevant or appropriate. Ms Wharfe highlighted that, as previously stated, the Council was limited to managing noise from overflying aircraft to take-off and landing of the aircraft, not in flight and “in flight” included agricultural aviation aircraft as low flying was provided for by the CAA.

1.7.2.6 Frost protection Ms Wharfe stated that apart from the issue relating to the use of helicopters, Horticulture NZ and NZKGI sought changes to the provisions for frost fans to increase to 60 dBLAEQ 10 mins. She stated that the Consultant Planner rejected this submission on the basis that there were frost fans that could comply with the 55 dBLAEQ 10 mins. and that the Western Bay of Plenty District Council had the same limit. Ms Wharfe stated that the Western Bay of Plenty District Council had a 55 dBLAEQ and a 65 dBA max limit as well as having a restricted discretionary rule where the standards cannot be met. She stated that it appeared that the default in the Proposed Whakatāne District Plan would be a discretionary activity as it was not specifically provided for in the Activity Table in Chapter 4. Ms Wharfe stated that Horticulture NZ and NZKGI sought that a controlled activity be included where the noise controls in 11.2.3.2 cannot be met and that the matters of control include the location of the frost fan and noise levels at the notional boundary of the adjoining properties. Ms Wharfe stated that recent Environment Court cases in Hurunui and Marlborough provided for new dwellings located near a frost fan to be noise insulated so that the potential for reverse sensitivity effects was avoided. She stated that Horticulture NZ and NZGI endorsed this approach and sought that the Proposed Whakatāne District Plan provide that noise insulation be required for new dwellings seeking to be built in an area where frost fans were already located. She stated that the Plan included provisions for noise sensitive activities and their submission sought that frost fans be added to those provisions. In response to questioning regarding the outcome of the Marlborough appeal, Ms Wharfe stated that while noise insulation was accepted, the debate focused around special audible characteristics i.e. the “slap” of frost fans. In response to questioning regarding alternative frost control methods, Ms Wharfe stated that the use of water over crops for frost

A486437 Page 24 of 33 protection was going out of fashion given the issues with the spread of PSA and the availability of water and stated that most growers would be using frost fans.

1.7.2.7 Bird scaring devices Ms Wharfe stated that Horticulture NZ and NZKGI sought amendments to the provisions for audible bird scarers to be consistent with the Western Bay of Plenty District Council. She stated that they supported the recommendation from the Consultant Planner that a setback distance not be included as the distance required can vary according to a range of circumstances. Ms Wharfe stated that Horticulture NZ and NZKGI sought an alternative rule, in particular, that the time be half an hour before sunrise to half an hour after sunset as this was the time when birds were most active. A specific limitation to use bird scarers to protect crops from bird strike was also sought to ensure that bird scarers were not used inappropriately. In response to questioning as to how a grower would define when bird scarers were appropriate to be used, Ms Wharfe stated that there were certain times of the growth cycle of crops that were more exposed to bird damage than others. Ms Wharfe requested that if the standards could not be met then the default was currently a discretionary activity as it was not provided for in the Activity Table in Chapter 4. She stated that the Western Bay of Plenty District Council was a restricted discretionary activity and they were seeking the same approach in the Whakatāne District. Ms Wharfe stated that the current rule was a bit uncertain and she stated that it needed to be clearly stated that different parts of the rule applied to different mechanisms. She referred to the Gisborne Council’s rule around avian sounds. Mr Julian stated that in his berry growing business he had tried different types of bird scaring devices as they tended to work only for short periods of time and needed to be changed frequently. In response to questioning as to what was the best industry practice, Ms Wharfe stated that Horowhenua District was developing guidelines for growers to quantify best practice and the industry was progressing. Ms Wharfe stated that the biggest issue was people locating in the rural area and she had already described the reverse sensitivity issue in her submission and would be addressing this further in the hearings on the Rural and Subdivision Chapters. In response to questioning as to future proofing the rules to enable future bird scaring devices to be used, such as drones, Ms Wharfe stated that there was concern about the use of drones as these were unregulated and posed safety issues for low flying aircraft. In response to questioning as to whether she considered the Western Bay of Plenty District Council dBL max limit more limiting than the provisions recommended in the Proposed Whakatāne District Plan, Ms Wharfe stated that the dBL max limit measured sharp incursions and may not be relevant as frost fans were a more consistent noise. In response to questioning regarding the ability to vary the location of frost fans within an orchard, Ms Wharfe stated that they were generally located in the middle of the orchard to get maximum coverage although it depended on the contour of the orchard, but they would not be located on the edge of an orchard. Ms Wharfe was asked if she had included a definition of audible bird scaring devices in her submission and she stated that she had not specifically sought it but it could be consequential. In response to questioning as to whether the rule could describe the outcome sought by a bird scaring device rather than define the techniques, in order to future proof the rule and allow technology to change, Ms Wharfe stated that it would help if the rule was clearer about different devices and she would be happy to discuss this in more detail.

A486437 Page 25 of 33 1.7.3 Mark Fort and Linda Conning: 96 Refer to tabled document 334IF-IP. Mr Fort advised that Linda Conning was here as an advisor. Mr Fort read his tabled submission (refer to tabled document 334IF-IP) and he stated that he was an orchardist with 30 years’ experience on the Rangitāiki Plains producing and packing around 10% of the NZ Nashi crop.

1.7.3.1 Helicopters Mr Fort requested that helicopters be treated separately from other production machinery because of the level of noise generated. Mr Fort believed that the Proposed Whakatāne District Plan as notified had a very weak approach to helicopters. He stated that the commercial helicopters should use the Whakatāne airport as a base and only be permitted in urban areas for emergency, search and rescue and special events. He stated that in the rural area, the regular use of land for helicopter landings should be closely regulated. He stated that those living in a rural area should not expect a helicopter base to be a permitted activity near their houses. He stated that occasional use of a helicopter for crop spraying and heavy lifting and pest control was not a problem. Mr Fort described his experience of overwhelming and intrusive noise from the use of helicopters for a horticultural use where the noise outside was unbearable and inside he could not concentrate on work or talk on the phone. He believed that provisions in the Plan were required so that sustained operations next to dwellings had to meet maximum noise levels and at a minimum, notification of neighbours in advance. Mr Fort stated that the Plan needed to clarify the definition of helicopter landing areas and that he believed a case by case assessment was needed to determine whether the location was suitable and whether the adverse effects should be further mitigated or avoided. He believed that the activity should be a discretionary activity as it was in the Western Bay of Plenty District. Mr Fort questioned the reliance on NZ Standard 6807:1994 and stated that residents could not rely on the noise standards as these were averaged. Mr Fort referred to the appendices which related to the USS FAA helicopter noise rule and responsible flying guidelines from Christchurch City. Mr Fort stated that aviation noise issues and public health had been considered in some detail as it was recognised that noise emitted by helicopters severely affects people. Mr Fort tabled an extract titled “Noise Case Law” (refer to tabled document 334IO-IP) which set out the reason that noise standards alone cannot be relied upon. Mr Fort sought the following relief. (a) Define helicopter operating base and require this as a Discretionary activity in all zones (b) Define helicopter landing areas as a location infrequently or intermittently used for casual helicopter landings permitted subject to: • 300 m from a dwelling or public place • Hovering less than 10 minutes • No more frequently than 20 times per year • Only during daylight hours • Noise levels comply with NZS 6807:1994 (c) Seasonal agricultural and horticultural use of helicopters in a rural zone not provided for in (a) and (b) above • delete (e) helipads from definition of farming

A486437 Page 26 of 33 • One operation per location per month (an operation may involve multiple movements) • Notify residents within 200 m unless noise levels comply with NZS 6807:1994 In response to questioning as to whether he believed that helicopters for frost protection was an issue for him as it was not included in his original submission, Mr Fort stated that they do wake up the neighbours and this was discussed by the USA FAA. Ms Conning stated that when helicopters were used for frost protection every night for a week depending on the climatic conditions, that could affect people’s ability to sleep at night, and this was captured in Mr Fort’s submission relating to the effect of helicopter noise on people. The Chairperson advised that Horticulture NZ and NZKGI had stated that the Council had no jurisdiction over aircraft in flight and that CAA was concerned with safety, not noise. Ms Conning stated that while Ms Wharfe would be well versed in the legal position regarding helicopters, she would suggest that the Committee get legal advice on the jurisdiction issue and be clear on what the Council can and cannot regulate. Ms Conning commented that there were now helicopters that operated much more quietly and she understood that the Department of Conservation favoured these quieter helicopters so perhaps specifying these types of machines may be a possibility. In response to questioning as to whether his negative experience would have been different had he been given notification of the helicopter use next to his property, Mr Fort responded that if he would have appreciated receiving notification so he could have made arrangements. In response to questioning Ms Conning clarified that crop spreading would be included in category (c) and all transient and intermittent use should come under (b). Helicopter use for frost protection would be separate, however, as pointed out by Horticulture NZ the Council may not have jurisdiction.

1.7.3.2 Bird scaring devices Mr Fort stated that he could not operate his business without bird scaring devices and he had brought examples of nashi pears that showed the effects of bird strike so the Committee could see the damage that was done to the fruit. Mr Fort stated that there were four introduced birds that were the most troublesome – blackbirds, thrushes, mynas and starlings. He stated that these birds could devastate a crop and make it uneconomic to produce. Mr Fort spoke about the different alternatives to bird scaring devices such as sprays and bird netting but stated that these had proved to be ineffective, and, in the case of bird netting, they excluded the good birds that ate the pest caterpillars and insects. Mr Fort spoke about gas powered bangers and stated that these could be set to a lower power or noise by reducing the gas pressure and could be set to fire at a range of frequencies and they did not need to be closer than 100 + m from a house as they were effective over a 200 m radius distance. He stated that the sound produced was like a shot gun and they were very effective. Mr Fort stated that most of the problem with bird scarers came from their automatic use by absentee landowners. He was concerned that inappropriate use by some growers may jeopardise his use of these devices. Mr Fort stated that the activity should be a restricted discretionary activity to apply when the standard cannot be met. He did not agree with the Horticulture NZ submission that the activity should be a controlled activity as a controlled activity could not be declined and he believed there were some small blocks close to existing dwellings where these devices were not suitable. Mr Fort stated that while he accepted the Horticulture NZ submission he requested that it should be amended to read “half an hour after sunrise and half an hour before sunset as birds do not feed at first or last

A486437 Page 27 of 33 light. He requested that the minimum distance from a dwelling be set at 100 m and he requested that there be a person resident on the property in control of the device.

1.7.3.3 Frost Fans Mr Fort stated that Horticulture NZ sought to raise the noise level for frost fans from 55 to 60 decibels and while their submission mentioned reverse sensitivity of new dwellings it did not consider the reverse sensitivity of new frost fans adjacent to existing dwellings. Mr Fort recommended that there should be a standard buffer distance between new frost fans and existing dwellings.

1.7.3.4 Daytime operating hours Mr Fort stated that he believed the proposal for daytime operating hours to be extended to 7 days a week was not acceptable to rural residents who were entitled to have one day a week to relax. He stated that exceptions could be made for seasonal activities of limited duration, such as crop harvesting, but he did not agree with a blanket standard across all rural zones 7 days a week. He requested that the separate noise levels for Sunday and Public Holidays be retained.

1.7.3.5 Well drilling and well testing Mr Fort requested that there be a standard for noise from this activity. Mr Fort was advised that well drilling and testing fell within the construction noise standard. When asked if he was suggesting a higher or lower standard than provided for in the zone, Mr Fort stated that it was up to the Council to discuss this with the organisation taking out the consent in order to avoid excessive noise.

1.7.3.6 Agricultural machinery Mr Fort stated that most mobile machinery was temporary and was not a nuisance, however, some types required additional controls, namely portable de-barkers. He believed there was a problem with the definition because, while they were portable, they could operate in a fixed location. Mr Fort requested that portable de-barkers and industrial wood chipping machines be excluded form Table 11.2 and that these retain the provision in the current operative plan (Rule 4.3.15.1 (a) (viii)). Ms Conning stated Mr Fort was concerned that the machines, when used near Murupara and Kawerau, were significantly affecting residential amenity. She stated that the Whakatāne District Council had received complaints and the forestry operators had then moved the machines to where they did not create complaints. She stated that obviously the rule would not apply if the machines were working in the middle of a forest block. She stated that this rule was appealed during the development of the Operative District Plan and a compromise was reached. Ms Swan stated that the intent of the rule was to use the zone noise limits, e.g. a notional boundary would apply in a rural zone and a residential noise limit would apply in a location close to a residential zone. Ms Conning stated that the way the noise was measured meant it would met the standard but still continue to be a nuisance and she suggested that time limits should be included for residential areas.

1.7.3.7 Odour Mr Fort stated that the spray of wastewater could be a significant nuisance and controls were needed on buffer areas, times of spraying etc. He stated that the trucking and spreading of dairy waste can create smells like a sewerage pond for several days and should only be permitted subject to limits on the hours of operation and frequency and that there be no ponding. Mr Fort stated that while he supported Fonterra’s submission to restrict sensitive activities within a 150 m buffer, as a landowner affected by the disposal of waste,

A486437 Page 28 of 33 he questioned whether the 150 m buffer was sufficient and he requested that the Committee impose distance rules. He queried whether the distance should be set at 300 m given that at times the putrid odours from whey were unacceptable to his staff. Mr Fort was asked to clarify whether what he was suggesting was in fact opposite to what Fonterra was saying, Mr Fort stated that he was suggesting that there needed to be a separation of this activity from dwellings given the stench could hang around for days. Ms Conning stated that there were no land use controls on trucks spraying whey and they could operate all night. Mr Fort stated that Fonterra hired operators as farmers did not operate the spray waste water machinery any more given the risk of discharge to waterways. The Senior Policy Planner stated that the reverse sensitivity issue was highlighted in this instance where Fonterra were seeking a setback from new dwellings of 150 m whereas Mr Fort was suggesting that Fonterra should setback their activity from existing dwellings. The issue was who would be taking responsibility for the buffer area.

1.8 Further Information Sought by the Committee The Committee requested the following be provided: 1. A response from Marshall Day Acoustics regarding the different recommendations for the Whakatāne and Whangarei noise limits for rural zones as noted by the Horticulture NZ submission. 2. Legal advice on the Council’s jurisdiction over helicopters. 3. Information on the outcome of the Environment Court decision in Marlborough on the issue of helicopters for frost protection and in particular information on how this issue was addressed through their variation. 4. Audible bird scaring devices rule – feedback on restructuring the rule to provide clarity as sought by submitters. 5. Reverse sensitivity related submissions – the Committee advised that they would not deliberate on submissions relating to this in the General Provisions Chapter until submissions had been heard for the Rural and Subdivision Chapters and a holistic approach to reverse sensitivity was sought. 6. Clarify the overlap with Chapters 1-3 Strategic in relation to the definition of “rural production activities”. 7. The outcome of the appeal to the Environment Court decision relating to the refusal of consent for a subdivision application by G R Cheak and L F Carter at 59 MacDonald Road, Te Teko in November 2014. Note: Please refer to tabled document 334IQ-JL for the information requested by the Committee. THE MEETING ADJOURNED AT 2:12 PM AND RESUMED AT 9:25 AM ON TUESDAY, 17 FEBRUARY 2015 IN THE COUNCIL CHAMBERS, CIVIC CENTRE, COMMERCE STREET, WHAKATĀNE.

Present: Councillors R N Orr (Chairperson), J A Turner and G F van Beek

In Attendance: P Doorman (Senior Policy Planner) and C B Hair (Administration Officer Policy)

Apologies: Apologies were received and sustained on behalf of Councillor D W Sheaff and L Swan (Consultant Planner)

A486437 Page 29 of 33 1.9 Supplementary evidence by Consultant Planner The Senior Policy Planner stated that Ms Swan, Consultant Planner, was unable to attend the hearing due to illness, however, Ms Swan had provided a document setting out her supplementary evidence and amended recommendations in brief note form in relation to the tabled written and verbal submissions heard during the Chapter 11 General Provisions hearings on 2-5 February 2015. Please note that a more comprehensive and detailed version of this evidence and amended recommendations was tabled on 3 March 2015 (refer to tabled document 334IQ-JL).

1.10 Public Excluded Business

1.10.1 Resolution to Exclude the Public RESOLVED: THAT the public be excluded from the following parts of the proceedings of this meeting, namely: Proposed Whakatāne District Plan – To Hear Submissions and Further Submissions and Consider the Section 42A Hearing Report on Chapter 11 – General Provisions The general subject of each matter to be considered while the public is excluded, the reason for passing this resolution in relation to each matter, and the specific grounds under section 48(1) of the Local Government Official Information and Meetings Act 1987 for the passing of this resolution are as follows:

General subject of each Reason for passing this Ground(s) under section 48(1) for the matter to be resolution in relation passing of this resolution considered to each matter

1 To enable the That the exclusion of the public from Proposed Whakatāne Committee to consider the whole or the relevant part of the District Plan – To Hear the submissions and proceedings of the meeting is Submissions and further submissions to necessary to enable the Committee to Further Submissions the Proposed deliberate in private on its decision or and Consider the Whakatāne District recommendation in any proceedings Section 42A Hearing Plan. where a right of appeal lies to any Report on Chapter 11 Court or tribunal against the final General Provisions decision of the Committee in those proceedings Section 48(1)(d).

Turner/Orr CARRIED

1.10.2 Resumption of Open Meeting After the above items had been considered, the public were readmitted to the meeting. THE MEETING ADJOURNED AT 3:45 PM AND RESUMED AT 9:15 AM ON TUESDAY, 3 MARCH 2015 IN THE COUNCIL CHAMBERS, CIVIC CENTRE, COMMERCE STREET, WHAKATĀNE

A486437 Page 30 of 33 Present: Councillors R N Orr (Chairperson), D W Sheaff J A Turner and G F van Beek

In Attendance: L Swan (Consultant Planner), P Doorman (Senior Policy Planner) and C B Hair (Administration Officer Policy)

Apologies: None

1.11 Supplementary evidence and amended recommendations by Consultant Planner Refer to tabled documents 334IQ-334JN. Ms Swan, Consultant Planner, tabled a document setting out her supplementary evidence and amended recommendations in relation to the tabled written and verbal submissions heard during the Chapter 11 General Provisions hearings on 2-5 February 2015 and which included the information requested by the Committee (refer to tabled document 334IQ-JL). She noted that the Committee had considered a version of this document, albeit less comprehensive and in note form, during their deliberations. Ms Swan tabled an email received from Matt Stulen, New Zealand Transport Agency, who had attached a proposed new revised rule 11.2.6 incorporating the new provisions for ventilation systems (refer to tabled document 334JM-JN).

1.12 Public Excluded Business

1.12.1 Resolution to Exclude the Public RESOLVED: THAT the public be excluded from the following parts of the proceedings of this meeting, namely: Proposed Whakatāne District Plan – To Hear Submissions and Further Submissions and Consider the Section 42A Hearing Report on Chapter 11 – General Provisions The general subject of each matter to be considered while the public is excluded, the reason for passing this resolution in relation to each matter, and the specific grounds under section 48(1) of the Local Government Official Information and Meetings Act 1987 for the passing of this resolution are as follows:

General subject of each Reason for passing this Ground(s) under section 48(1) for the matter to be resolution in relation passing of this resolution considered to each matter

1 To enable the That the exclusion of the public from Proposed Whakatāne Committee to consider the whole or the relevant part of the District Plan – To Hear the submissions and proceedings of the meeting is Submissions and further submissions to necessary to enable the Committee to Further Submissions the Proposed deliberate in private on its decision or and Consider the Whakatāne District recommendation in any proceedings Section 42A Hearing Plan. where a right of appeal lies to any Report on Chapter 11 Court or tribunal against the final General Provisions decision of the Committee in those proceedings Section 48(1)(d).

Turner/Orr CARRIED

A486437 Page 31 of 33 1.12.2 Resumption of Open Meeting After the above items had been considered, the public were readmitted to the meeting. THE MEETING ADJOURNED AT 3:23 PM AND RESUMED AT 9:00 AM ON TUESDAY, 14 APRIL 2015 IN THE COUNCIL CHAMBERS, CIVIC CENTRE, COMMERCE STREET, WHAKATĀNE

Present: Councillors R N Orr (Chairperson), D W Sheaff J A Turner and G F van Beek

In Attendance: L Swan (Consultant Planner), P Doorman (Senior Policy Planner) and C B Hair (Administration Officer Policy)

Apologies: None

1.13 Supplementary evidence and amended recommendations by Consultant Planner Refer to tabled documents 334JO-JS. Ms Swan, Consultant Planner, tabled a document setting out her recommending wording in relation to Helicopters and their Landing Areas (refer to tabled document 334JO-JP). She also tabled the response from Kathryn McKay, Professionals and her sales team on the proposed signage provisions (refer to tabled document 334JQ-S).

1.14 Public Excluded Business

1.14.1 Resolution to Exclude the Public RESOLVED: THAT the public be excluded from the following parts of the proceedings of this meeting, namely: Proposed Whakatāne District Plan – To Hear Submissions and Further Submissions and Consider the Section 42A Hearing Report on Chapter 11 – General Provisions The general subject of each matter to be considered while the public is excluded, the reason for passing this resolution in relation to each matter, and the specific grounds under section 48(1) of the Local Government Official Information and Meetings Act 1987 for the passing of this resolution are as follows:

General subject of each Reason for passing this Ground(s) under section 48(1) for the matter to be resolution in relation passing of this resolution considered to each matter

1 To enable the That the exclusion of the public from Proposed Whakatāne Committee to consider the whole or the relevant part of the District Plan – To Hear the submissions and proceedings of the meeting is Submissions and further submissions to necessary to enable the Committee to Further Submissions the Proposed deliberate in private on its decision or and Consider the Whakatāne District recommendation in any proceedings Section 42A Hearing Plan. where a right of appeal lies to any Report on Chapter 11 Court or tribunal against the final General Provisions decision of the Committee in those proceedings Section 48(1)(d).

Turner/Orr CARRIED

A486437 Page 32 of 33 1.14.2 Resumption of Open Meeting After the above items had been considered, the public were readmitted to the meeting.

1.15 Supplementary evidence and amended recommendations by Consultant Planner Refer to tabled documents 334JT-JW. Documents were tabled during deliberations setting out the Consultant Planner’s supplementary evidence and amended recommendations in relation to the noise rules on temporary military activities in response to the submission from the New Zealand Defence Force (refer to tabled document 334JT-JU) and the report from James Bell-Booth, Marshall Day Acoustics (refer to tabled document 334JT-JU).

1.16 Decisions The decisions made by the District Plan Hearings Committee are shown as tracked changes to the notified Proposed Whakatāne District Plan. The Committee has released a decision document. In addition to this decision document, each submission point has been addressed individually by the District Plan Hearings Committee with either accept/accept in part or reject and the reasons for the decision. These documents are available on the Council’s website www.whakatane.govt.nz

THE MEETING CLOSED AT 1:58 PM ON WEDNESDAY, 19 AUGUST 2015

Confirmed this day of

CHAIRPERSON

A486437 Page 33 of 33