Auckland Council website.
This website has changed
This is the former Auckland City Council website, which has some of the information and services you need if you live or do business in the area. Go to the main Auckland Council website to access the complete range of council services.
Skip navigation
Plans, policies and reports
Plans, policies and reports

District Plan Hauraki Gulf Islands Section - Proposed 2006

(Notified version 2006)

Street index | Planning maps | Text | Appendices | Annexures | Section 32 material | Plan modifications | Help | Notified - Home | Decision - Home

Hearing reports index

Report on submissions to the Auckland City District Plan: Hauraki Gulf Islands Section - Proposed 2006

Topic: Part 1 - Introduction
Report to: The Hearing Panel
Author: Katherine Dorofaeff, senior planner
Date: 12 July 2007
Group file: 314/274004

1.0 Introduction

This report considers submissions and further submissions ('submissions') that were received by the council in relation to part 1 - Introduction of the Auckland City District Plan: Hauraki Gulf Islands Section - Proposed 2006 ('the Plan'). The Plan was publicly notified on 18 September 2006. The closing date for lodging submissions was 11 December 2006. The submissions and summary of decisions requested were publicly notified for further submission on 29 April 2007. The closing date for lodging further submissions was 28 May 2007.

This report has been prepared under section 42A of the Resource Management Act 1991 ('the RMA'), to assist the hearings panel to consider the submissions on part 1 - Introduction. This report discusses the submissions (grouped by subject matter or individually) and includes recommendations from the planner who prepared this report. The recommendations identify whether each submission should be accepted or rejected (in full or in part) and what amendments (if any) should be made to the Plan to address matters raised in submissions. Further submissions are not specifically addressed but are dealt with in conjunction with the submissions to which they relate.

The recommendations contained in this report are not decisions of the council. The council will issue its decisions following consideration of the submissions, further submissions, any supporting evidence presented at the hearing, and this report. The council's decisions will be released after all the hearings to the Plan have been completed.

2.0 Statutory framework

This section of the report briefly sets out the statutory framework within which the council must consider the submissions. In preparing this report the submissions and, in particular, the decisions requested in the submissions, have been considered in light of the relevant statutory matters. These were summarised by the Environment Court in Eldamos Investments Limited v Gisborne District Council W047/05 where the court set out the following measures for evaluating objectives, policies, rules and other methods in district plans:

  1. The objectives of the Plan are to be evaluated by the extent to which they:
    1. Are the most appropriate way to achieve the purpose of the RMA (s32(3)(a)); and
    2. Assist the council to carry out its functions in order to achieve the purpose of the RMA (s72); and
    3. Are in accordance with the provisions of part 2 of the RMA (s74(1).
  2. The policies, rules, or other methods in the Plan are to be evaluated by the extent to which they:
    1. Are the most appropriate way to achieve the objectives of the Plan (s32(3)(b)); and
    2. Assist the council to carry out its functions in order to achieve the purpose of the RMA (s72); and
    3. Are in accordance with the provisions of part 2 of the RMA (s74(1)); and
    4. (If a rule) achieve the objectives and policies of the Plan (s76(1)(b)).

The purpose of the RMA is "to promote the sustainable management of natural and physical resources", and "sustainable management" is defined in section 5(2) as meaning:

"... managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety while-

  1. Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and
  2. Safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and
  3. Avoiding, remedying, or mitigating any adverse effects of activities on the environment."

Along with section 5, part 2 of the RMA includes sections 6 (matters of national importance), 7 (other matters) and 8 (Treaty of Waitangi), which set out a range of matters that the council needs to recognise and provide for in achieving the purpose of the RMA. Those matters are also relevant when considering submissions.

The Plan must assist the council to carry out its functions under section 31 of the RMA. These functions are:

  1. "The establishment, implementation, and review of objectives, policies, and methods to achieve integrated management of the effects of the use, development, or protection of land and associated natural and physical resources of the district:
  2. the control of any actual or potential effects of the use, development, or protection of land, including for the purpose of-
    1. the avoidance or mitigation of natural hazards; and
    2. the prevention or mitigation of any adverse effects of the storage, use, disposal, or transportation of hazardous substances; and
      (iia) the prevention or mitigation of any adverse effects of the development, subdivision, or use of contaminated land:
    3.  the maintenance of indigenous biological diversity:
  3. ...
  4. The control of the emission of noise and the mitigation of the effects of noise:
  5. The control of any actual or potential effects of activities in relation to the surface of water in rivers and lakes."

In addition to the matters listed above from the Eldamos decision:

  1. The Plan must "give effect to" any national policy statement and any New Zealand coastal policy statement (s75(3)(a) and (b)).
  2. The Plan must "give effect to" the regional policy statement (made operative after 10 August 2005) (s75(3)(c)).
  3. The Plan must be "not inconsistent with" any regional plan (s75(4)).
  4. The council must ensure that that the Plan does not conflict with sections 7 and 8 of the Hauraki Gulf Marine Park Act 2000 ("the HGMPA").  Section 10 of the HGMPA requires that sections 7 and 8 of that Act be treated as a New Zealand coastal policy statement under the RMA.

3.0 Background

This section of the report sets out background information about the topic under consideration. It overviews the contents and approach of part 1.

Part 1 of the Plan is the introductory chapter and contains no objectives, policies or rules. It contains introductory information about:

  • the geographic area covered by the Plan
  • the Plan content and layout
  • the development of the Plan
  • the structure of the Plan
  • monitoring
  • procedural information.

Part 1 has intentionally been kept brief and factual.

4.0 Analysis of submissions

4.1 Introduction

This section of the report discusses the decisions requested in submissions about part 1 and recommends how the panel could respond to the matters raised and decisions requested in submissions. The submissions are addressed under subject headings. While the relevant statutory matters (identified in section 2.0 of this report) will not necessarily be referred to directly, the discussion and recommendations have given appropriate consideration to these and any other relevant matters.

A list of the submissions which raise issues about part 1 together with the related further submissions is contained in appendix 1 . Appendix 2 contains the summaries of the decisions requested by the submissions considered in this report. Any amendments to the Plan recommended in response to submissions are identified in this section of the report and are further detailed in appendix 3 .

The list of submissions contained in appendix 1 may include some submissions and further submissions which were received 'late', ie they were received after the closing date for lodging submissions (11 December 2006) or further submissions (28 May 2007).  All late submissions will be considered by the council at the start of the hearing process and for the purposes of this report it is assumed that they have been accepted as provided for under sections 37 and 37A of the RMA.

4.2 Submissions about clause 1.3

Submissions dealt with in this section: 618/1, 1101/45, 1286/7, 1287/69, 1288/3, 1289/52, 2878/8

4.2.1 Decisions requested

These submissions state that clause 1.3 should describe the manner in which the proposed Plan has monitored the implementation of the operative Plan, analysed the outcomes arising, identify any deficiencies and what they are and should clearly establish and define the current context of the natural and built environment. 

4.2.2 Planner's analysis and recommendations

Section 75(1) and (2) of the RMA addresses the contents of district plans as follows:

  1. "A district plan must state-
    1. the objectives for the district; and
    2. the policies to implement the objectives; and
    3. the rules (if any) to implement the policies.
  2. A district plan may state-
    1. the significant resource management issues for the district; and
    2. the methods, other than rules, for implementing the policies for the district; and
    3. the principal reasons for adopting the policies and methods; and
    4. the environmental results expected from the policies and methods; and
    5. the procedures for monitoring the efficiency and effectiveness of the policies and methods; and
    6. the processes for dealing with issues that cross territorial authority boundaries; and
    7. the information to be included with an application for a resource consent; and
    8. any other information required for the purpose of the territorial authority's functions, powers, and duties under this Act."

The RMA does not require the council to include in its district plan the type of background information sought in these submissions. In drafting the Plan, the council has focussed on objectives, policies and rules. Issues have been included as they provide a starting point for the objectives. Explanatory text is included where it provides necessary context or assists with the application of an objective, policy or rule. The council has sought to keep the Plan to a more manageable size by avoiding unnecessary background information such as that sought in these submissions. Information of this nature is often little referred to by users of the Plan, and it becomes outdated during the life of the Plan. It is recommended that these submissions be rejected.

The council is well aware of the strengths and weaknesses of the operative Plan having administered it in some form since it was first notified in 1992. Once a district plan has statutory effect it is constantly subject to critique and criticism from those who use it or are affected by it. During the phase of formulating the Plan, the council has received information from a range of sources about what has and hasn't worked with the current Plan. Feedback has been received from residents and ratepayers, developers, council officers, landowners, interest groups, elected representatives (councillors and community board members), iwi, Ministry for the Environment, Auckland Regional Council, and the Department of Conservation. It is considered that the issues and options paper released by council in May 2005 for public feedback, shows a sound understanding of the strengths and weaknesses of the operative Plan.

It is noted that the current context of the natural and built environment is broadly addressed in part 3 - Strategic management areas.

Planner's recommendations for submissions about clause 1.3
That submissions 618/1, 1101/45, 1286/7, 1287/69, 1288/3, 1289/52, 2878/8 be rejected.

4.3 Submission about clause 1.3.1

Submission dealt with in this section: 3715/6

4.3.1 Decision requested

Submission 3715/6 asks for reference to be made at clause 1.3.1 to:

  • The 2005 changes to section 75 of the RMA, and the implications of this for the role of the HGMPA
  • The recent and evolving international and national reprioritisation of sustainability matters.
  • The evolving role of community involvement and buy-in in making pragmatic sustainability matters.

4.3.2 Planner's analysis and recommendations

4.3.2.1 Changes to section 75 of the RMA

As noted in section 2.0 of this report, the Plan must 'give effect to' any national policy statement, any New Zealand coastal policy statement, and any regional policy statement (made operative after 10 August 2005). It must be 'not inconsistent with' any regional plan. The council must ensure that that the Plan does not conflict with sections 7 and 8 of the HGMPA. Sections 7 and 8 of that Act must be treated as a New Zealand coastal policy statement under the RMA.

The 2005 amendments to section 75 of the RMA raised the status of regional policy statements so that the district plan now must 'give effect to' rather than 'not be inconsistent with' the regional policy statement. However, the 2005 amendments did not change the status of sections 7 and 8 of the HGMPA. The requirement to 'give effect to' any New Zealand coastal policy statement existed prior to 2005.

Clause 2.3.3 of the Plan correctly records the status of national policy statements, New Zealand coastal policy statements, regional policy statements, and regional plans. Clause 2.3.2 addresses the HGMPA, and section 7, 8 and 9 of that Act form appendix 10 of the Plan. There are some other submissions specific to clause 2.3.2 and they will be considered in the hearing report for part 2 of the Plan. 

The request in submission 3715/6 that clause 1.3.1 be amended to refer to the 2005 changes to section 75 and its implications for the role of the HGMPA should be rejected. The 2005 changes have not affected the role of the HGMPA.

4.3.2.2 Sustainable management

Clause 2.3.1 correctly records the purpose of the RMA and includes the RMA definition of 'sustainable management'. Sustainable management is further addressed in clause 2.4 and 2.5.2. Minimal value would be added to the Plan by including reference at clause 1.3.1 to the recent and evolving international and national reprioritisation of sustainability matters or the evolving role of community involvement and buy-in in making pragmatic sustainability matters. It is therefore recommended that this aspect of 3715/6 be rejected.

Planner's recommendations for submission about clause 1.3.1
That submission 3715/6 be rejected.

4.4 Submissions about clause 1.3.3

Submissions dealt with in this section: 618/2, 1101/46, 1286/8, 1287/70, 1288/4, 1289/53, 2878/9, 3715/7

4.4.1 Decisions requested

Clause 1.3.3 briefly addresses the relationship of the Plan with the council's strategic and annual plans. Submissions 618/2, 1101/46, 1286/8, 1287/70, 1288/4, 1289/53 and 2878/9 state that clause 1.3.3 1 should more explicitly set out the relationship between the Plan, the LTCCP and part 6 - Financial contributions. Submission 3715/7 states that clause 1.3.3 should refer to HGI community outcomes as a desired part of the long-term council community plan ('LTCCP'), and to Essentially Waiheke and other surveys as a basis for such community outcomes on Waiheke.

4.4.2 Planner's analysis and recommendations

It is not clear what amendments the submissions seek for clause 1.3.3 in order to more explicitly set out the relationship between the Plan, the LTCCP and part 6 Financial contributions. While both the Plan and the LTTCP are developed by the council, they are developed under different pieces of legislation, and for different purposes. The LTCCP is prepared under the Local Government Act 2002 ('LGA') for the purposes set out in section 93(6) of that Act as follows

  1. The purpose of a long-term council community plan is to -
    1. describe the activities of the local authority; and
    2. describe the community outcomes of the local authority's district or region; and
    3. provide integrated decision-making and co-ordination of the resources of the local authority; and
    4. provide a long-term focus for the decisions and activities of the local authority; and
    5. provide a basis for accountability of the local authority to the community; and
    6. provide an opportunity for participation by the public in decision-making processes on activities to be undertaken by the local authority.

The LTCCP both records the outcomes identified by the community and identifies how the council will contribute to these. The district plan is prepared under the RMA for the purpose of carrying out the council's functions in order to achieve the purpose of that Act (which is to promote the sustainable management of natural and physical resources). The district plan is part of an hierarchy of documents established under the RMA from national instruments, to regional policy statements, and regional and district plans. Because the LTCCP records the outcomes identified by the community and identifies how the council will contribute to these, it is appropriate for the council to use these to inform the district plan.

In terms of the relationship between part 6 - Financial contributions and the LTCCP, the LTCCP includes the council's policy for development contributions taken under the LGA and includes, for information purposes only, a summary of the operative provisions in the Auckland City's District Plan that relate to financial contributions taken under the RMA. The council has not yet extended its development contributions policy to cover the Hauraki Gulf islands. Clause 6.1 signals that the council will be investigating the feasibility of development contributions for the islands. Part 6 - Financial contributions also includes appropriate references to the role of the LTCCP in clauses 6.3.2(1) and (2), 6.6.1(1) and (5), 6.6.2.2(1) and (2), 6.7.1(1) and 6.7.2.2.

Submissions 618/2, 1101/46, 1286/8, 1287/70, 1288/4, 1289/53 and 2878/9 should be rejected.

With regard to submission 3715/2, it is not appropriate for the district plan, which is prepared under the RMA, to include statements about how the LTCCP, which is prepared under the LGA,  should determine community outcomes. This submission should also be rejected.

Clause 16(2) alteration

The last sentence of clause 1.3.3 in referring to the LTCCP states that the current document is called Focus on the Future 2004-2014. It is recommended that this sentence be deleted as it is no longer correct - the current document is called Auckland City's Long-term Plan 2006-2016. A new LTCCP document will be produced every three years so it is best if these documents are not identified by name in the Plan. This correction can be made under clause 16(2) of the first schedule to the RMA. Clause 16(2) enables the council to make an amendment, without further formality, to its proposed plan to alter any information, which such an alteration is of minor effect, or may correct any minor errors.

Planner's recommendations for submissions about clause 1.3.3
That submissions 618/2, 1101/46, 1286/8, 1287/70, 1288/4, 1289/53, 2878/9 and 3715/7 be rejected.
Planner's recommendation under clause 16(2)
That, under clause 16(2) of the first schedule of the RMA, the final sentence of the first paragraph of clause 1.3.3 be deleted as follows:

" The current document is called Focus on the Future 2004-2014. "

4.5 Submission about clause 1.3.4

Submission dealt with in this section: 3715/8

4.5.1 Decision  requested

Submission 3715/8 states that clause 1.3.4 should refer to signalled national policy statements on sustainability matters especially including climate change, integrated waters and catchment management, biodiversity and energy management.

4.5.2 Planner's analysis and recommendations

National policy statements are issued under section 52 of the RMA. Their purpose is to state objectives and policies for matters of national significance that are relevant to achieving the purpose of RMA. There are currently no completed national policy statements though there is a NZ coastal policy statement (issued under section 57 of the RMA). On 16 May 2007, a proposed national policy statement on electricity transmission 2 was publicly notified for submission. No other national policy statements have been publicly notified.

If there were any approved national policy statements, then they would be taken into account in the section 32 material as the Plan would need to give effect to them. If these documents currently existed, it may also be appropriate to specifically refer to them in clause 1.3.4 or clause 2.3.3. However it would be premature to refer to them in the Plan at this time.

It is noted that there are large number of non-statutory publications produced by the Ministry for the Environment ('MfE') on various resource management issues, including on climate change, biodiversity, energy and sustainability. The council has referred to these documents, where appropriate, during the formulation of the Plan.

Planner's recommendations for submission about clause 1.3.4
That submission 3715/8 be rejected.

4.6 Submission about clause 1.3.5.1

Submission dealt with in this section: 1243/4

4.6.1 Decision requested

Submission 1243/4 asks that the first sentence of clause 1.3.5.1 be amended as follows:

"The council acknowledges Ngati Rehua as maintaining their ahi kaa status over parts of the land in the islands and in particular Aotea (Great Barrier)."

(insertions shown with underlining)

The submission further states that as much of land on the islands is in private ownership, and has been for several generations, the ahi kaa status of Ngati Rehua in relation to this land has been lost.

4.6.2 Planner's analysis and recommendations

Ahi kaa is a term used in relation to land to indicate continuous occupation of land by an iwi or hapu 3 . Its literal meaning is 'to keep home fires burning'. Ahi kaa is the local term used instead of mana whenua. The maori term 'ahi kaa' does not mean the same as European term 'ownership'. The proposed amendment would inappropriately alter the cultural context of the term 'ahi kaa' and it is therefore recommended that the submission be rejected. It is noted that "the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga" is a matter of national importance under section 6(b) of the RMA.

Planner's recommendations for submission about clause 1.3.5.1
That submission 1243/4 be rejected

4.7 Submissions about clause 1.3.6

Submissions dealt with in this section: 3061/2, 3079/1, 3521/1, 3715/9

4.7.1 Decisions requested

Submissions 3061/2 and 3521/1 seek to amend clause 1.3.6 to recognise that all areas covered by the Plan are subject to the HGMPA.

Submission 3079/1 asks that the provisions in clause 1.3.6 in relation to recognition of the HGMPA be retained.

Submission 3715/9 states that reference should be made to HGMPA and the management of the Gulf (sections 7 and 8 and so by implication its purposes, section 32), must now be given effect to, for coastal environments, and so must be a foundational and thoroughly integrated priority of the Plan. The submission continues on to state that this means:

  • In relation to Waiheke, the protection and where appropriate the enhancement of:
    • The social, economic, recreational, and cultural well-being of people and communities
    • The natural, historic, and physical resources
    • Community values, village communities (and their land unit 20 separations), walkways, coastal amenities, visual amenities, fauna and flora, heritage, landscapes, and wetlands and catchments.
  • The introduction of more appropriate planning tools especially those that enhance catchment management and landscape protection (such as Ramsar 4 and IUCN 5 protocols and others), and social and cultural well-being (such as Waiheke having its own LTCCP community outcomes and a Waiheke Island Gulf Design Panel), and especially 'community scale' development codes.
  • The integration into the Plan of Essentially Waiheke values and strategies.
  • That where appropriate Waiheke should not be governed by isthmus design codes inappropriate to a community in the gulf (for lighting / noise / traffic management / wastewater management and other utilities management / infrastructure design / property development design codes eg for Vision Matiatia).
  • That Waiheke be governed as a more devolved and sustainable island community in the gulf rather than as an undifferentiated suburb of the isthmus, and with more delegated powers being given to the Waiheke Community Board.
  • That all consultants instructed by the council for consultation on Waiheke matters should be so briefed.

4.7.2 Planner's analysis and recommendations

4.7.2.1 Area subject to the HGMPA

It is appropriate to amend clause 1.3.6 to recognise that all of the area covered by the Plan is subject to the HGMPA. Clause 1.2 6 of the operative Plan states that "the district includes considerable areas which are subject to the provisions of the Hauraki Gulf Marine Park Act 2000". The term 'district' (which refers to the whole of the Auckland City jurisdiction) has not be used at all in the proposed Plan, and in the case of clause 1.3.6, it has been replaced by the term 'Plan'. However this change of terminology means that further amendment is now required to clarify that the entire area covered by the Plan is subject to the HGMPA. It is therefore recommended that submissions 3061/2 and 3521/1 be accepted.

4.7.2.2 Support for clause 1.3.6

Given the recommendation under section 4.7.2.1 that clause 1.3.6 be amended, submission 3029/1 which supports the existing clause 1.3.6 should be accepted in part.

4.7.2.3 Submission 3715/9

Submission 3715/9 does not clearly identify what changes are sought to clause 1.3.6. The reference to the HGMPA in clause 1.3.6 is intended to be a brief acknowledgment of the Act, with more detail given in clause 2.3.2. Other subparts of submission 3715 (in particular 3715/22, 3715/23 and 3715/24)seek specific wording changes to clause 2.3.2 and will be considered in the hearing report for part 2 of the Plan.

As noted in section 2.0 of this report, the council must ensure that that the Plan does not conflict with sections 7 and 8 of the HGMPA. Section 10 of the HGMPA requires that sections 7 and 8 of that Act be treated as a New Zealand coastal policy statement under the RMA. The Plan must 'give effect to' any New Zealand coastal policy statement.

Submission 3715/9 also raises some issues about planning tools, governance, Essentially Waiheke, design codes, and briefing of consultants. These are briefly responded to under headings below.

Planning tools

It is not clear what amendments submission 3715/9 seeks to clause 1.3.6, or to other parts of the Plan, in order to introduce the more appropriate planning tools referred to in the submission.

It is not appropriate for the Plan, which is prepared under the RMA, to comment on whether Waiheke should have its own LTCCP (prepared under the LGA) with its own community outcomes.

Submission 3715/9 seeks, as a planning tool, a Waiheke Island design panel. The council does convene a specialist design panel for the Hauraki Gulf islands, known as the environmental design panel.  Panel members are selected for their knowledge of, and professional experience in, the gulf islands and have been briefed on council policies and strategies on Waiheke and the gulf.  The panel is convened on an 'as required' basis.  Its purview extends to all island developments that are:

  • multiple residential or mixed use developments
  • large scale visitor facility developments, commercial and entertainment facilities
  • ridgeline developments (determined on a case by case basis)
  • large scale development in rural areas, for example land units 20, 21 and 22 (now rural 1 and 2)
  • large scale developments, including all new buildings and major alterations to buildings within the commercial and retail zones within policy areas (now settlement areas)
  • developments which have the potential to impact on significant landscape features, for example coastal cliffs or significant coastal headlands
  • any major council development projects
  • large scale development adjacent to reserve areas.

Governance

It is not appropriate for the Plan to comment on governance issues such as whether the council should delegate more or less power to the community board. In terms of council's functions, powers or duties under the RMA, section 34(3) permits a council to delegate to a community board power to do anything before a final decision on the approval of a district plan or any change to a district plan. Decisions about the delegations of powers to committees, community boards and officers are made by a resolution of the full council, usually at the commencement of each new term of council.

Essentially Waiheke

The role of Essentially Waiheke in relation to the Plan is set out in clause 3.3.2 of the Plan as follows:

" Essentially Waiheke

Essentially Waiheke - A Village and Rural Communities Strategy is a non-statutory strategic document which sets out a community approved framework for Waiheke's development. It was adopted by council in 2000 after extensive consultation with the Waiheke community.

The five central principles of Essentially Waiheke are:

  • Principles of environmental protection.
  • Principles of economic development and employment.
  • Principles of strong communities.
  • Principles to protect and enhance Waiheke's character.
  • Principles of location.

These five central principles are reflected within the Waiheke strategic management area and within other parts of the Plan."

It is considered that the Essentially Waiheke strategy has been adequately and appropriately acknowledged and integrated into the Plan.

Design codes

Submission 3715/9 expresses concern about Isthmus design codes being inappropriately applied to communities in the Gulf. The Plan does not rely on any design codes developed for the Isthmus. It does use national and international standards where relevant eg for the measurement of noise and vibration.

Briefing of consultants

It is good practice for the council to brief any of its consultants undertaking consultation on Waiheke of any matters of particular relevance to that community. However it is not appropriate to address this matter in the Plan.

Planner's recommendations for submissions about clause 1.3.6
  1. That submissions 3061/2 and 3521/1 be accepted, and clause 1.3.6 be amended accordingly to state:
    " 1.3.6 The Hauraki Gulf Marine Park Act 2000

The entire area covered by the Plan covers considerable areas which are is subject to the provisions of the Hauraki Gulf Marine Park Act 2000 (the 'HGMPA'). The role of the HGMPA is further described in part 2 - Resource management overview ."

  1. That submission 3079/1 be accepted in part.
  2. That submission 3715/9 be rejected.

4.8 Submissions about clause 1.3.7

Submissions dealt with in this section: 2762/8, 2763/2, 2763/3, 2763/4, 2763/5, 2763/6, 2763/9, 2765/2, 2765/4, 2766/7, 2766/12, 2766/13, 2766/14, 2971/2, 3024/2, 3396/2, 3422/5, 3726/5

4.8.1 Decisions requested

The submissions considered in this section of the report are about consultation in general rather than about clause 1.3.7 specifically. As a group, the content of the submissions can be summarised as follows:

  • Emphasis on the importance of consultation and community involvement in the preparation of the Plan
  • Assertions that the consultation undertaken is inadequate
  • Requests for links between the consultation and the contents of the Plan to be demonstrated
  • Suggestions about how consultation and community participation should be conducted.

4.8.2 Planner's analysis and recommendations

The consultation undertaken by the council during the preparation of the Plan is outlined in clause 1.3.7 of the Plan and further information is available on the council's website. The panel can be satisfied that the level of consultation meets, and at times exceeds, the requirements of the RMA and of the LGA. In terms of public participation, the submission and hearing process provides a further opportunity for public involvement. As the panel can be satisfied with the level of consultation, there is no need for a new review process with a revised timeline. It is recommended that these submissions be rejected.

It is noted that it is not always possible to clearly show links between consultation and the content of the Plan as a variety of diverse, and at times conflicting, views were presented during consultation. In addition, as well as considering matters raised in consultation, the council must also consider the requirements of the RMA and advice provided by technical experts employed by the council.

Planner's recommendations for submissions about consultation (clause 1.3.7)
That submissions 2762/8, 2763/2, 2763/3, 2763/4, 2763/5, 2763/6, 2763/9, 2765/2, 2765/4, 2766/7, 2766/12, 2766/13, 2766/14, 2971/2, 3024/2, 3396/2, 3422/5, 3726/5 be rejected.

4.9 Submissions about clause 1.4

Submissions dealt with in this section: 618/3, 1101/47, 1286/9, 1287/71, 1288/5, 1289/54, 2878/10, 3715/10, 3715/11, 3715/12, 3715/13, 3715/14, 3715/15, 3715/16, 3715/17, 3715/18

4.9.1 Decisions requested

Submissions 618/3, 1101/47, 1286/9, 1287/71, 1288/5, 1289/54 and 2878/10 seek consequential amendments to clause 1.4 to follow through on other matters raised in these submissions as a whole about the structure of the Plan.

Submissions 3715/10 to 3715/18 seek additional paragraphs at clause 1.4 to give reference to the following:

  • available, and considered and chosen planning tools (including operational management protocols to give better effect to integrated wastewater, waters and catchment management and to wetlands enhancement, and landscape protection and enhancement, and community scale design codes and protocols, and sustainability design codes and protocols, and community outcomes assessments)
  • Essentially Waiheke and other appropriately established and/or revalidated community outcomes documents/surveys as per the LGA section 91, and/or by way of the giving of effect to the HGMPA
  • the proposed Waiheke Island Gulf Design Panel
  • the planning interface with the Auckland Regional Council ('ARC') and the Auckland Regional Transport Authority ('ARTA') (especially for wastewaters and waters management and planning, traffic management and planning, and the boundary interface of responsibility for seashore ecosystem well-being and moored vessels discharge policing and recreational boat safety issues policing)
  • the role of the regional policy statement and regional plan
  • the establishment and role of the Hauraki Gulf Forum
  • the role of the conservation management strategy ('CMS') review
  • the role of relevant existing and evolving national policy statements
  • the inclusion of a part 15 into the Plan regarding 'Sustainable management issues and methodologies'.

4.9.2 Planner's analysis and recommendations

4.9.2.1 Requested consequential amendments

With regard to submissions 618/3, 1101/47, 1286/9, 1287/71, 1288/5, 1289/54 and 2878/10, it is premature to identify any consequential amendments to clause 1.4 in advance of considering the decisions requested in other subparts of these submissions. If consequential amendments are required to clause 1.4, they will be addressed in the hearing reports which consider the substantive requests.

4.9.2.2 Submissions 3715/10 to 3715/18

Planning tools

It is not necessary or helpful for clause 1.4 to include any further information about available and considered and chosen planning tools. The clause appropriately introduces and briefly describes the main components of the Plan ie:

  •  strategic management areas, land units, and settlement areas
  •  issues, objectives, policies, and rules.

It also identifies the use of other regulatory and non-regulatory methods.

It is recommended that submission 3715/10 be rejected.

Essentially Waiheke etc

As has been noted in section 4.7.2.3 of this report, the Essentially Waiheke strategy has been adequately and appropriately acknowledged and integrated into the Plan. The relationship between the council's strategic and annual plans is appropriately referred to in clause 1.3.3 of the Plan. It is recommended that submission 3715/11 be rejected.

Design panel

As is noted in section 4.7.2.3 of this report, the council does convene a specialist design panel for the islands. This is a process matter, and does not need to be referred to in the Plan - particularly not in clause 1.4 which deals with the structure of the Plan. It is therefore recommended that submission 3715/12 be rejected.

Interface with ARC / ARTA

There is no need to include information in clause 1.4 (particularly as this clause is about the structure of the Plan) about the planning interface between the council and ARC and ARTA. Process issues of this nature are better dealt with outside the Plan, though for particular rules it may be appropriate to signal ARC requirements. For instance, for the earthworks controls, clause 10c.5.6.6 draws attention to the possible need for ARC consents.  

It is recommended that submission 3715/13 be rejected.

Regional documents

The role of regional policy statements and the regional plan is appropriately outlined in clause 2.3.3. There is no value in including similar information in clause 1.4, particularly as this clause is about the structure of the Plan. It is therefore recommended that submission 3715/14 be rejected.

Hauraki Gulf forum

The Hauraki Gulf forum was established by the HGMPA and has the functions and powers set out in sections 17 and 18 of that Act. It is appropriate for the Plan to acknowledge the existence and status of the HGMPA. However there is no need to refer to the establishment and role of the forum, particularly not in clause 1.4, which is about the structure of the Plan. It is recommended that submission 3715/15 be rejected.

Conservation management strategy review

The conservation management strategy is prepared by the Department of Conservation ('DOC') under the Conservation Act 1987 for the management of public conservation land and waters, and species for which DOC has responsibility. The current strategy for the Auckland Conservancy is dated 1995-2005, but has been extended by the Minister of Conservation until July 2010. DOC have commenced pre-draft consultation with its key partners - regional and local councils, iwi and conservation boards.

The role of that document is appropriately referred to under clause 2.3.3 and clause 10a.25.1 of the Plan. The council has also taken the conservation management strategy into account in developing the Plan provisions for the DOC estate. Given that the conservation management strategy has been adequately addressed in other more appropriate places within the Plan, there is no value including similar information about the strategy in clause 1.4, particularly as this clause is about the structure of the Plan. Neither is there any need to refer to the pending review of the strategy. It is therefore recommended that submission 3715/14 be rejected.

DOC has lodged comprehensive submissions to the Plan on matters of concern to them (submissions 2501-2506, 2514-2523). DOC has not asked for any additional information about the conservation management strategy to be included in the Plan.

National policy statements

The role of national policy statements is appropriately outlined in clause 2.3.3. There is no advantage in including similar information in clause 1.4, particularly as this clause is about the structure of the Plan. It is therefore recommended that submission 3715/17 be rejected.

As noted in section 4.5.2 of this report, there are currently no completed national policy statements.

Proposed part 15

Other submissions ask that the Plan be amended to include a new part 15 - Sustainable management issues and methodologies. Those submissions will be considered in the hearing report that addresses general text submissions. Even if these submissions are accepted, it would not be necessary or helpful to refer to part 15 in clause 1.4. However clause 1.2.1 would need to be consequentially amended to include part 15 in the table of plan contents. Any amendments to clause 1.2.1 would be dealt with in the hearing report that considers the submissions seeking the introduction of part 15. It is therefore recommended that clause 3715/18 be rejected.

Planner's recommendations for submissions about clause 1.4
That submissions 618/3, 1101/47, 1286/9, 1287/71, 1288/5, 1289/54, 2878/10, 3715/10, 3715/11, 3715/12, 3715/13, 3715/14, 3715/15, 3715/16, 3715/17, 3715/18 be rejected.  

4.10Submissions about clause 1.4.1.3

Submissions dealt with in this section: 618/4, 618/5, 1101/48, 1101/49, 1286/10, 1286/11, 1287/72, 1287/73, 1288/6, 1288/7, 1289/55, 1289/56, 2878/11, 2878/12

4.10.1 Decisions requested

Submissions 618/4, 1101/48, 1286/10, 1287/72, 1288/6, 1289/55 and 2878/11 asks that clause 1.4.1.3 be amended to delete the reference to only parts of Great Barrier requiring 'a more integrated approach' as all parts of the district require a fully integrated approach.

Submissions 618/5, 1101/49, 1286/11, 1287/73, 1288/7, 1289/56 and 2878/12 state that the rationale for settlement area techniques needs an appropriate justification - there is no apparent difference between settlement areas and land units as a technique and the Plan should be amended to clearly distinguish that separation if it can be substantiated.

4.10.2 Planner's analysis and recommendations

4.10.2.1Integrated approach

It is acknowledged that all parts of the district do require an integrated approach, and the use of the term 'more integrated management approach' in clause 1.4.1.3 is not particularly meaningful. It is therefore recommended that the submissions about this be accepted in part and that the words 'more integrated' be replaced with the word 'different'.

4.10.2.2Settlement areas

The submissions noted above seek justification for the settlement area techniques. The settlement area approach is used (instead of land units) in those parts of Great Barrier which due to their location, topography, and historical subdivision patterns have a more intensive built development and in some cases, a greater mix of activities. It recognises the value of consolidating development in the existing areas both for the benefit of those areas and so that the natural landscape and features of the island are protected. The settlement area approach is consistent with the objective, policies and strategy set out in clauses 3.2.3 and 3.2.4 for the Great Barrier strategic management area.

Some of the settlement areas (Tryphena, Medlands, Claris, and Port Fitzroy) were identified as 'policy areas' in the operative Plan. The policy area approach added a layer of controls over and above the underlying land units. This layering of controls was confusing and lacked coherency. It has been refined into the settlement area approach, and has been extended to five additional areas - Okupu, Whangaparapara, Awana, Okiwi, and Aotea.

It is recommended that submissions 618/5, 1101/49, 1286/11, 1287/73, 1288/7, 1289/56 and 2878/12 be rejected as the Plan does provide appropriate justification for the settlement area approach.

Planner's recommendations for submissions about clause 1.4.1.3
  1. That submissions 618/4, 1101/48, 1286/10, 1287/72, 1288/6, 1289/55, 2878/11 be accepted in part and that clause 1.4.1.3 be amended accordingly to state:
    " 1.4.1.3 Settlement areas

Some specific locations on Great Barrier, which require a more integrated different management approach, are allocated to settlement areas rather than land units."

  1. That submissions 618/5, 1101/49, 1286/11, 1287/73, 1288/7, 1289/56, 2878/12 be rejected.

4.11Submissions about clause 1.4.2

Submissions dealt with in this section: 618/6, 1101/50, 1286/12, 1287/74, 1288/8, 1289/57, 2878/13

4.11.1 Decisions requested

These submissions state that clause 1.4.2 should reference the development controls as part of the rules: ie "the rules including development controls and standards".

4.11.2 Planner's analysis and recommendations

Including a reference to 'development controls and standards' in clause 1.4.2.4 may assist some users of the Plan. It is therefore recommended that the submissions be accepted in part and that an additional sentence be added to the final paragraph as follows:

"The type, form and scale of different activities are controlled by rules. Rules include development controls and standards. All rules in the Plan have the force of statutory regulation."

Planner's recommendations for submissions about clause 1.4.2
That submissions 618/6, 1101/50, 1286/12, 1287/74, 1288/8, 1289/57, 2878/13 be accepted in part and that the final paragraph of clause 1.4.2.4 be amended as follows:

"The type, form and scale of different activities are controlled by rules. Rules include development controls and standards. All rules in the Plan have the force of statutory regulation."

4.12Submissions about clause 1.4.2.1

Submissions dealt with in this section: 2766/1, 2766/2, 2766/3, 2766/8

4.12.1 Decisions requested

Submission 2766/1 states that clause 1.4.2.1 and all following and associated clauses should be amended to state correctly the objectives of the Plan for the district as required by the RMA and LGA. The submission suggests that, after due consultation, clause 1.4.2.1 might read:

"Principles and directions: the identified and accepted priorities of the people and communities of the Hauraki Gulf islands to advance their well-being through the sustainable management of their resources, as identified and expressed by them in consultation facilitated by council, in the following respects:

  1. Social well-being: the good of society, including well-integrated and generally accepted organisation of communities and people, good relationships amongst individuals, groups and neighbourhoods, recognition and proportion of accepted customs, and the advancement of a spirit of co-operation and good will.
  2. Economic well-being: The prosperity of the residents of the Hauraki Gulf islands as individuals, groups, and neighbourhoods, including the need to balance financial interests with other social responsibilities, and the planning of general economic advancement.
  3. Cultural well-being: the advancement of intellectual, creative and spiritual standards; the protection of positive customary values and traditions; the preservation and evolution of the character of communities and lifestyles; promotion of a spirit of personal freedom, resourcefulness, independence and acceptance of diversity; the avoidance of authoritarian and undemocratic political systems and processes; avoiding the negative consequences of unnecessary or intrusive intervention by local government into people's lives; and any other such positive cultural values identified in consultation.
  4. Environmental well-being: the protection and management of the natural and physical environment according to the views and preferences of people and communities, in a balanced manner which respects personal rights, freedoms and other well-being.
  5. The safety and health of the community, including physical, emotional and psychological concerns.

The new District Plan will attempt to incorporate in a balanced and comprehensive manner the social, economic, environmental, cultural, health and safety needs and aspirations of the residents of the Hauraki Gulf islands."

Submission 2766/2 states that such amendment (to clause 1.4.2.1) must be based on an investigation of the actual cultural, social and economic needs of the affected community and individuals as required by the RMA and the LGA.

Submission 2766/3 states that (for clause 1.4.2.1) the statement of principles, directions and values in the three respects (cultural, social and economic) is to be derived only from full and due consultation with people and communities, in terms of part 6 of the LGA.

Submission 2766/8 states that  to contribute to the well-being of people and communities in the future, council's plans must attempt to give clear meaning to the principles (suggested for clause 1.4.2.1) and the Plan must articulate the feelings and preferences of the people.

4.12.2 Planner's analysis and recommendations

The purpose of clause 1.4.2 is to:

  • state that the Plan includes issues, objectives, policies and rules
  • briefly outline how the terms issues, objectives, policies and rules have been used in the Plan
  • explain the relationship between issues, objectives, policies and rules.

Submissions 2766/1, 2766/2, 2766/3, 2766/8 comment particularly on clause 1.4.2.1 which deals with issues. Submission 2766/1 seeks to include a statement of 'principles and directions' in clause 1.4.2.1. Submissions 2766/2, 2766/3, 2766/8 emphasis that the statement must be derived from consultation with the people and communities and must express their views.

As outlined in section 4.2.2 of this report, under section 75(1) of the RMA, the Plan must states the objectives for the district, the policies to implement the objectives, and the rules (if any) to implement the policies. The RMA does not define the terms 'issue', 'objective', or 'policy'. However the way in which the council has used these terms in the Plan is consistent with Ministry for the Environment guidance material 7. Submission 2766/1 is therefore incorrect when it implies that the Plan does not correctly state the objectives for the district as required by the RMA and LGA. Neither the RMA or the LGA require the council to state the objectives of the Plan in the manner sought by the submissions. As outlined in section 4.8.1 of this report, the council has undertaken consultation and this has been taken into account when identifying the issues, objectives, policies and rules. It is recommended that these submissions be rejected.

Planner's recommendations for submissions about clause 1.4.2.1
That submissions 2766/1, 2766/2, 2766/3, 2766/8 be rejected.

4.13Submissions about clause 1.4.3

Submissions dealt with in this section: 2714/2, 3104/10

4.13.1 Decisions requested

These submissions do not directly address clause 1.4.3 but they do raise issues about other regulatory and non-regulatory methods. Submission 2714/2 seeks economic encouragement  in the form of incentives and initiatives for Great Barrier. Submission 3104/10 asks the council to charge less fees and encourage the community to covenant areas and provide rate rebates to recognise the gifting for future generations.

4.13.2 Planner's analysis and recommendations

Council policies about economic incentives (including rates rebates) and fees are part of the council's general financial policies and are not contained in the Plan. The LTCCP sets out the council's policies on revenue and financing, rating, fees and charges.

One incentive included in the Plan is to provide for subdivision in association with the protection of significant environmental features (see clauses 12.9.3 and 12.9.4). The council also does, where appropriate, place conditions on resource consents requiring land to be protected through covenanting.

It is recommended that 2714/2 and 3104/10 be rejected. The matters they raise about economic incentives and initiatives, including fees and rates rebates, are beyond the scope of the Plan.  In terms of what can be achieved through the Plan, it is considered that the subdivision provisions in clauses 12.9.3 and 12.9.4, and the use of resource consent conditions, adequately encourage covenanting or protection of land.

Planner's recommendations for submissions about incentives and fees (clause 1.4.3)
That submissions 2714/2 and 3104/10 be rejected.

4.14Submissions about clause 1.5

Submissions dealt with in this section: 563/5, 658/5, 864/5, 865/5, 927/5, 1018/5, 1022/5, 1048/4, 1167/5, 3220/5

4.14.1 Decisions requested

These submissions do not specifically address clause 1.5, but do raise issues about monitoring and enforcement. Submissions 563/5, 658/5, 864/5, 865/5, 927/5, 1018/5, 1048/4, 1167/5 and 3220/5 ask the council to carry out more effectively its responsibility to implement, monitor and enforce all relevant erosion and sediment controls. Submission 1048/4 also refers to evaluating expert evidence. Submission 1022/5 states that spot monitoring checks should be undertaken on construction sites to ensure that those involved are abiding by the allowable hours.

4.14.2 Planner's analysis and recommendations

These submissions raise process and administration issues that are not directly dealt with in the Plan. It is therefore recommended that they be rejected. The council is aware of its duty under section 35 of the RMA to gather information, monitor and keep records. This includes a requirement 'to monitor the exercise of the resource consents that have effect ... in its district...'. The council employs compliance staff to monitor resource consents, enforce conditions, and respond to complaints.

It is noted that under section 75 a district plan may (but is no longer required to) state 'the procedures for monitoring the efficiency and effectiveness of the policies and methods'. Clause 1.5 sets out the types of monitoring which will be undertaken by the council.

Planner's recommendations for submissions about monitoring and enforcement (clause 1.5)
That submissions 563/5, 658/5, 864/5, 865/5, 927/5, 1018/5, 1022/5, 1048/4, 1167/5, 3220/5  be rejected

4.15Submissions about clause 1.6.2

Submissions dealt with in this section: 560/2, 618/7, 1093/1, 1094/1, 1101/51, 1102/1, 1286/13, 1287/75, 1288/9, 1289/58, 2878/14

4.15.1 Decisions requested

Submissions 560/2, 1093/1, 1094/1 and 1102/1 seek to introduce a controlled activity status in the Plan, where appropriate. The remaining submissions state that clause 1.6.2 needs amending to include controlled activities.

4.15.2 Planner's analysis and recommendations

Continuum of activities

Section 77B of the RMA sets out the continuum of activities that may be used in a district plan as follows: permitted activity, controlled activity, restricted discretionary activity, discretionary activity, non-complying activity, prohibited activity. The Plan uses all of these statuses except for that of controlled activity. The differences between permitted, controlled, and restricted discretionary activities are briefly set out below:

Activity type Explanation
Permitted activity No resource consent required.

Must comply with the standards, terms or conditions, if any specified in the Plan.

Controlled activity Resource consent required.

Council must grant the resource consent.

The council must specify in the Plan the matters over which it has reserved control.

The council may impose conditions on the resource consent, but only with respect to the matters specified in the Plan.

Must comply with the standards, terms or conditions, if any specified in the Plan.

Restricted discretionary activity Resource consent required

The council must specify in the Plan the matters over which it has restricted its discretion.

The council may decline a resource consent or approve and impose conditions, but only with respect to the matters specified in the Plan.

Must comply with the standards, terms or conditions, if any specified in the Plan.

Issues with controlled status

During the formulation of the Plan, the council reached the view that the controlled activity status was not appropriate for any of the activities identified in the Plan. In the past, the council has used the controlled activity status in the Isthmus Plan, the Central Area Plan and in the operative Hauraki Gulf Islands Plan. Considerable experience in administering these Plans, together with the development of case law, has led council to the view that, in the main, the use of the controlled activity status does not provide the council with sufficient discretion to address the adverse effects associated with particular proposals. The council cannot decline an application for a controlled activity. While the council may impose reasonable conditions that relate to the matters over which it has reserved control, it cannot impose conditions which require such significant modification as to fundamentally alter the proposal. To do so would effectively negate the consent granted and prevent the activity from taking place. Not all proposals which warrant assessment through the resource consent process can be adequately mitigated by the use of conditions. Some proposals need to be declined or substantially modified. The controlled activity status should be reserved for situations where the council is confident that every proposal should be consented to and that adverse effects can be adequately addressed via conditions without substantial modification to the original proposal. While the controlled activity approach does provide greater certainty to applicants, this needs to be balanced against the need to ensure good environmental outcomes.

Comparison of proposed and operative Plans

There has been a well considered change in approach between the proposed and the operative Plans in terms of the activity status applied to the construction of buildings (including alterations and additions) in the more sensitive land units. The operative Plan relies on the controlled activity status for dealing with construction of buildings (including alteration and additions) in some land units ie land units 11, 12, 17, 18, 19, 20, 21, 22, 23, 24 and 25. The proposed Plan instead applies the restricted discretionary status to the construction of buildings (including alterations and additions) in some land units and parts of settlement areas. This is consistent with policies in the Plan about ensuring that the scale, form (design and materials), colour and location of buildings do not have adverse effects on the character and amenity values of the more sensitive land units and settlement areas. It is considered that continuing with the approach in the operative Plan of relying on a controlled activity status would not give the council sufficient certainty that these critical policies could be achieved. At times it may be necessary to require considerable modifications to a building or decline a particular building in a particular location. For this reason the restricted discretionary status is preferred and is considered to be more consistent with achieving the purpose of the RMA.

Not all activities which were controlled in the operative Plan have been moved into the restricted discretionary status in the proposed Plan. In some cases, building work which was identified as a controlled activity in the operative Plan is now a permitted activity in the proposed Plan. This has occurred for properties which are within the Tryphena or Claris policy areas in the operative Plan and are within the residential amenity part of the Tryphena or Claris settlement areas or within the light industry part of the Claris settlement area in the proposed Plan.

Conclusion

Other hearing reports will consider other submissions that seek a controlled activity status for specific activities. If, as a result of the these submissions, the council is persuaded that a controlled activity status provides an appropriate level of control for a particular activity, then it will be necessary at that time to consequentially amend clause 1.6.2 to include controlled activities. However at this time for the reasons outlined above it is recommended that the submissions seeking a controlled activity status, be rejected.

Planner's recommendations for submissions about clause 1.6.2
That submissions 560/2, 618/7, 1093/1, 1094/1, 1101/51, 1102/1, 1286/13, 1287/75, 1288/9, 1289/58, 2878/14 be rejected

4.16Submissions about clause 1.6.2.2

Submissions dealt with in this section: 618/8, 1101/52, 1286/14, 1287/76, 1288/10, 1289/59, 2878/15

4.16.1 Decisions requested

These submissions state that clause 1.6.2.2 needs to reference and describe discretionary activities which fall into neither of the two categories set out in clause 1.6.2.2 - there will be activities that are discretionary rather than non-complying where they are not specifically listed as prohibited or discretionary uses.

4.16.2 Planner's analysis and recommendations

Clause 1.6.2.2 identifies two types of discretionary activities provided for in the Plan - listed discretionary activities, and development control modifications. The submissions state that there will be other types of discretionary activity. However under clause 4.2, activities not specifically provided for as permitted, controlled, restricted discretionary or discretionary (and which are not located on a road) default to a non-complying status. There are submissions which oppose clause 4.2, and seek that activities default to a permitted or discretionary status rather than non-complying. Other subparts of submissions 618, 1101, 1286, 1287, 1288, 1289, and 2878 oppose clause 4.2.

If, as a result of submissions considered in other hearing reports, clause 4.2 is altered to provide for another type of discretionary activity, then it will be appropriate to undertake consequential amendments to clause 1.6.2.2. However at this time it is recommended that submissions 618/8, 1101/52, 1286/14, 1287/76, 1288/10, 1289/59 and 2878/15 be rejected.

Planner's recommendations for submissions about clause 1.6.2.2
That submissions 618/8, 1101/52, 1286/14, 1287/76, 1288/10, 1289/59, 2878/15 be rejected

4.17Submission about clause 1.6.3

Submission dealt with in this section: 2725/3

4.17.1 Decisions requested

Submission 2725/3 seeks a cheaper consent process (with specific reference to vegetation clearance).

4.17.2 Planner's analysis and recommendations

The RMA does provide for the council to recover its actual and reasonable costs associated with carrying out its functions in relation to receiving, processing, granting, and monitoring of resource consents. Fees for resource consents are not specified in the Plan but are part of council's financial policy contained in its LTCCP. The council's policy is to recover the full cost of the private benefit associated with the council's statutory functions such as providing resource consents. Where there is a also a public benefit aspect to the service, then that component is normally met from rates. It is acknowledged that consent fees are a significant issue for the community but it would be inappropriate to deal with this matter in the district plan. It is therefore recommended that this submission be rejected.

Planner's recommendations for submission about consent costs (clause 1.6.3)
That submission 2725/3 be rejected

4.18Submissions about clause 1.6.3.2

Submissions dealt with in this section: 2718/1, 3422/1

4.18.1 Decisions requested

Both these submissions are about existing use rights. Submission 2718/1 states that there needs to be a paragraph defining the existing use right for normal farming practice on marginal farms (particularly on Great Barrier) which may or may not have significant environmental factors. The submission asks the council to proclaim its view on farming existing use rights, timeframes, etc.  Submission 3422/1 requires existing uses rights under section 10 of the RMA (with specific reference to personal domestic firewood harvesting and vegetation clearance to reduce fire hazards).

4.18.2 Planner's analysis and recommendations

Section 10 of the RMA permits certain existing uses which were lawfully established to continue despite contravening a rule of a proposed or operative district plan which subsequently comes into force. Section 10(1) to (3) states:

  1. "Land may be used in a manner that contravenes a rule in a district plan or proposed district plan if-
    1. Either-
      1. The use was lawfully established before the rule became operative or the proposed plan was notified; and
      2. The effects of the use are the same or similar in character, intensity, and scale to those which existed before the rule became operative or the proposed plan was notified:
    2. Or-
      1. The use was lawfully established by way of a designation; and
      2. The effects of the use are the same or similar in character, intensity, and scale to those which existed before the designation was removed.
  2. Subject to sections 357 to 358, this section does not apply when a use of land that contravenes a rule in a district plan or a proposed district plan has been discontinued for a continuous period of more than 12 months after the rule in the plan became operative or the proposed plan was notified unless-
    1. An application has been made to the territorial authority within 2 years of the activity first being discontinued; and
    2. The territorial authority has granted an extension upon being satisfied that-
      1. The effect of the extension will not be contrary to the objectives and policies of the district plan; and
      2. The applicant has obtained approval from every person who may be adversely affected by the granting of the extension, unless in the authority's opinion it is unreasonable in all the circumstances to require the obtaining of every such approval.
  3. This section does not apply if reconstruction or alteration of, or extension to, any building to which this section applies increases the degree to which the building fails to comply with any rule in a district plan or proposed district plan."

The four legal tests which need to be considered in order to establish existing use rights under section 10 can be summarised as follows:

  • The use must have been legally established
  • The effects of the use must be the same or similar in character, intensity and scale to those which existed before the rule which it infringes became operative or the proposed plan was notified
  • The use must not have been discontinued for a continuous period of more than 12 months
  • In relation to a building, the building must not be altered in a manner which increases the degree to which the building fails to comply with any rule in the district plan

Section 10A provides for certain existing use of the surface of water and lakes to continue and section 10B deals with certain existing building works.

Any assertion of existing use rights must be assessed and determined on a case by case basis. It is not appropriate for the council to define or confer existing use rights in the Plan. Submissions 2718/1 and 3422/1 should therefore be rejected.

Under section 139A of the RMA, a person can apply to the council for an existing use certificate. The council may require the applicant provide any further information that it needs to determine whether it can issue the certificate.

Existing land use was one of the factors that was taken into account when developing the objectives, policies and rules in the Plan. It is not the only factor - under section 31 of the RMA the council has the function of 'the control of any actual or potential effects of the use, development or protection of land'.

Planner's recommendations for submissions about clause 1.6.3.2
That submissions 2718/1 and 3422/1 be rejected

4.19Submissions about clause 1.6.3.3

Submissions dealt with in this section:

Group 1: 301/2, 375/2, 566/2, 574/2, 591/2, 627/2, 632/2, 701/2, 710/2, 730/2, 738/2, 875/2, 887/2, 906/2, 936/2, 963/2, 1020/2, 1055/32, 1151/2, 1209/2, 1685/2, 1686/2, 1687/2, 1688/2, 1689/2, 1690/2, 1691/2, 1692/2, 1693/2, 1694/2, 1695/2, 1696/2, 1697/2, 1699/2, 2287/2, 2563/2, 2795/2, 2838/2, 2997/2 3201/2, 3216/2, 3230/2, 3234/2, 3258/2, 3277/2, 3283/233 16/2, 3325/2, 3330/2, 3346/2, 3352/2, 3362/2, 3373/2, 3385/2, 3405/2, 3419/2, 3557/2, 3822/2

Other: 3294/1

4.19.1 Decisions requested

The submissions identified as group 1 seek, in relation to resource consents, inclusion of a requirement for all applicants under the Plan to demonstrate how their application has regard to, and is therefore consistent with, sections 7 and 8 of the HGMPA and the wider context represented by section 32 of HGMPA.

Submission 3294/1 seeks the following action: where appropriate throughout the Plan, make reference to, and explain fully, all matters relating to the notification of discretionary activities. The submission makes specific reference to parts 10a, 10c, 11 and 14.

4.19.2 Planner's analysis and recommendations

4.19.2.1HGMPA

Part 6D of the operative Plan contains notification and information requirements. It sets out how activities for which consent is sought are to be described and assessed in the accompanying application. It includes the following statement (inserted by plan change 39):

"All applications for resource consent shall include an assessment in terms of section 7 and 8 of the Hauraki Gulf Marine Park Act 2000, including an explanatory statement of the way in which the proposal will enable the council to carry out its duty to have regard to those statutory provisions as required by s(9)(4) of that Act."

The group 1 submissions are seeking a similar provision for the proposed Plan.

Part 6D reflects the requirement that existed prior to 2005 for district plans to state the information to be included with a resource consent application. As the result of the 2005 amendments to section 75 of the RMA, the district plan may (but is no longer required to) state the information to be included with a resource consent application. This amendment recognises that such information is not an essential part of a district plan and gives councils the discretion to omit it. The council has chosen to omit it, but as clause 1.6.3.3 advises, additional information can be obtained from the council on resource consent processes. This includes information about what needs to be included with a resource consent application. The council prefers the approach of providing this information in non-statutory material as it can then be readily updated and tailored to the requirements of different users and types and scales of applications. It is also appropriate for the Plan to focus on objectives, policies and rules, rather than attempting to be also an information document about resource consent processes. It is recommended that these submissions be rejected to the extent that they seek amendments to the Plan.

For completeness it is noted that clause 11.2(1) records the requirement (as set out in s9(4) of the HGMPA) for the council, when assessing an application for resource consent for the Hauraki Gulf, its islands and catchments, to have regard to the matters set out in sections 7 and 8 of the HGMPA.

4.19.2.2Notification

The Plan does not address notification issues in relation to discretionary activities (other than restricted discretionary activities). This is appropriate, as notification decisions are part of the resource consent process with each application being assessed on its merits according the criteria set down in the RMA. Sections 93 to 95 of the RMA address notification of applications. Council practice is also influenced by the case law resulting from court decisions.

Clause 1.6.3.3 could be amended to include some explanation about notification decisions. If the panel wishes to do this, it is recommended that a brief statement be added as follows:

Decisions about notification of resource consent applications will be made in accordance with sections 93 to 94D of the RMA.

However such a statement may not satisfy the concerns of submission 3294/1 which asks the Plan to explain fully all matters relating to the notification of discretionary activities. It is more appropriate for such detailed information to be provided outside the Plan, so that it can updated in response to amendments to the RMA and new case law. It is also appropriate for the Plan to focus on objectives, policies and rules, rather than attempting to be also an information document about the RMA. There are other sources which better fulfil this purpose such as the Ministry for the Environment's series 'An Everyday Guide to the RMA'. The council also provides supplementary information about the RMA, including resource consent processes, on its website and in pamphlets. The Environmental Defence Society website 'The RMA Guide' 8 is also useful.

It is recommended that submission 3294/1 be rejected.

Planner's recommendations for submissions about clause 1.6.3.3
  1. That submission 3294/1 be rejected.
  2. That submissions 301/2, 375/2, 566/2, 574/2, 591/2, 627/2, 632/2, 701/2, 710/2, 730/2, 738/2, 875/2, 887/2, 906/2, 936/2, 963/2, 1020/2, 1055/32, 1151/2, 1209/2, 1685/2, 1686/2, 1687/2, 1688/2, 1689/2, 1690/2, 1691/2, 1692/2, 1693/2, 1694/2, 1695/2, 1696/2, 1697/2, 1699/2, 2287/2, 2563/2, 2795/2, 2838/2, 2997/2 3201/2, 3216/2, 3230/2, 3234/2, 3258/2, 3277/2, 3283/2, 3316/2, 3325/2, 3330/2, 3346/2, 3352/2, 3362/2, 3373/2, 3385/2, 3405/2, 3419/2, 3557/2, 3822/2 be rejected to the extent that they seek amendments to the Plan.

4.20Submissions about clause 1.6.4.2

Submissions dealt with in this section: 618/9, 1101/53, 1286/15, 1287/77, 1288/11, 1289/60, 2878/16

4.20.1 Decisions requested

These submissions state that clause 1.6.4.2 could usefully reference the limitations in respect of private plan change applications.

4.20.2 Planner's analysis and recommendations

The submissions do not explain what 'limitations' are being referred to. The council has chosen not to include detailed information about the private plan change process in the Plan.  Rather, as is recorded in clause 1.6.4.2, further information about the plan change process, including the information requirements, and likely costs, can be obtained from the council. The council prefers the approach of providing such information in non-statutory material as it can then be readily updated and tailored to the requirements of different users and types and scales of applications. It is also appropriate for the Plan to focus on objectives, policies and rules, rather than attempting to be also an information document about RMA processes. There are better ways of providing that type of information - the council does have material it gives to people who enquire about the private plan change process, and there is also information on the council's website.

It is recommended that these submissions be rejected.

Planner's recommendations for submissions about clause 1.6.4.2
That submissions 618/9, 1101/53, 1286/15, 1287/77, 1288/11, 1289/60, 2878/16 be rejected

4.21Submission about clause 1.6.7

Submission dealt with in this section: 3715/19

4.21.1 Decisions requested

Submission 3715/19 asks that reference should be made at clause 1.6.7 to give effect to the sections 7, 8 and especially section 7(2)(a)(ii) of the HGMPA. This particularly applies to the excessive noise intrusion of helicopters and from private entertainment and recreation within the coastal environment of the HGMPA.

4.21.2 Planner's analysis and recommendations

Clause 1.6.7 briefly sets out the following RMA requirements:

  • the duty to avoid unreasonable noise (s16)
  • the duty to avoid, remedy, or mitigate adverse effects (s17).

These duties apply whether or not the noise or activity is otherwise authorised under the RMA.

The submission suggests that sections 7 and 8 of the HGMPA should also be referred to. Sections 7 and 8 contain broad high-level statements about the national significance of the Hauraki Gulf and the objectives of the management of the Hauraki Gulf, its islands and its catchments. In contrast, sections 16 and 17 of the RMA are very specific. Including a reference in clause 1.6.7 to broad statements such as those in sections 7 and 8 of the HGMPA does not add any value. It is considered that these sections of the HGMPA are adequately and appropriately referred to in other parts of the Plan. Submission 3715/19 should therefore be rejected.

It is noted that there are other submissions which raise concerns about noise from helicopters and from private entertainment and recreation. Those submissions will be considered in other hearing reports.

Planner's recommendations for submission about 3715/19
That submission 3715/19 be rejected

5.0 Conclusion

This report has considered the decisions requested in submissions lodged regarding part 1 - Introduction, of the Proposed Auckland City District Plan: Hauraki Gulf Islands Section 2006.  The report recommends whether submissions should be accepted or rejected and how associated further submissions should be dealt with, and how the Plan should be modified as a result. These recommendations are made prior to the hearing of submissions and therefore without the benefit of evidence which may be presented at that time.  At this stage before the hearing, it is recommended that this part of the Plan be approved, with minor amendments (as outlined in appendix 3 ), for the reasons outlined in this report.

  Name and title of signatories Signature
Author Katherine Dorofaeff, senior planner: islands  
Reviewer Megan Tyler, Manager: islands  
Approver Penny Pirrit, Manager: City Planning  

Appendix 1

List of submissions and further submissions (90Kb PDF)

Appendix 2

Summary of decisions requested (68Kb PDF)

Appendix 3

Recommended changes to the Plan (71Kb PDF)

PDF icon To view PDFs download Acrobat Reader from the Adobe website . Further help on how to view PDFs .

1. The submission actually refer to clause 1.3.2, but the text of the submissions relate to clause 1.3.3. The planning consultant acting for these submitters has confirmed that clause 1.3.3 is the intended clause.

2. Electricity transmission is the network of pylons, conductors (power wires), and substations of the national grid. It does not include electricity generation or local distribution of electricity to houses and businesses.

3. As defined in the glossary on the website of Te Kooti Whenua Maori (the Maori Land Court). See www.justice.govt.nz/maorilandcourt

4. The Ramsar Convention on Wetlands is an intergovernmental treaty which provides the framework for national action and international cooperation for the conservation and wise use of wetlands and their resources. It was adopted in the Iranian city of Ramsar in 1971 and came into force in 1975. New Zealand is a contracting party. See www.ramsar.org

5. The World Conservation Union (IUCN). See www.icun.org

6. As amended by plan change 39 which became operative on 9 September 2005, following a Environment Court consent order.

7. Drafting issues, objectives, policies and methods in regional policy statements and district plans, MfE, 2003, ME482.

8. www.rma.org.nz