District Plan Hauraki Gulf Islands Section - Proposed 2006

(Notified version 2006)

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

1.0 Introduction

This report considers submissions and further submissions ('submissions') that were received by the council in relation to the Landform 4 (wetland systems) land unit 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 the Landform 4 (wetland systems) land unit. 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 W 047/05 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—

(a) Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and

(b) Safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and

(c) 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:

"(a) 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:

(b) the control of any actual or potential effects of the use, development, or protection of land, including for the purpose of—

(i) the avoidance or mitigation of natural hazards; and

(ii) 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:

(iii) the maintenance of indigenous biological diversity:

(c) ...

(d) The control of the emission of noise and the mitigation of the effects of noise:

(e) 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 identifies how the Plan deals with the Landform 4 (wetland systems) land unit.

Clause 10a.5.1 describes the land units as follows:

"This land unit is applied to fresh water wetlands that drain to rivers, streams or estuaries and to areas of land that support a prevalence of vegetation typically adapted for life in saturated soil conditions.

Wetland systems is characterised by:

• Expansive, largely unmodified wetland systems in low-lying areas.
• Smaller wetland systems, some of which have been modified by land management practices on surrounding areas of land.
• Wildlife and plant habitats, which result in high ecological value in a local, regional and in some cases a national context. This is particularly apparent where the wetland system is unmodified.
• High hydrological importance within water catchments, particularly in terms of flood mitigation and sediment control.
• High natural character, especially where the wetland system is unmodified.

Overall, wetland systems is an important natural environment, with high natural character, ecological and hydrological values."

Clause 10a.5.2 sets out the significant resource management issue for the land unit:

"The significant resource management issue which needs to be addressed in the Plan is how to protect the natural character, ecological and hydrological value of wetland systems from the adverse effects of activities and buildings."

Clause 10a.5.4 sets out the following strategy for the land unit:

"The natural character, ecological and hydrological values of this land unit are so high, that the resource management strategy is to not specifically provide for activities and buildings to occur at all and to require a large minimum site size for subdivision within the land unit."

4.0 Analysis of submissions

4.1 Introduction

This section of the report discusses the decisions requested in submissions about the landform 4 (wetland systems) land unit 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 the landform 4 (wetland systems) land unit together with the related further submissions is contained in appendix 1. Appendix 2 contains the summary 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 were considered by the hearing panel at the start of the hearing process and the panel has already waived the failure to comply with the time limit for any late submissions or further submissions listed in appendix 1. This has been done in accordance with sections 37 and 37A of the RMA.

This report will deal with the text relating to the landform 4 (wetland systems) land unit and the landforms 1-7 (general) report will consider any requests for land to be reclassified from or to landform4.

4.2 General submissions about landform 4 (wetland systems)

Submissions dealt with in this section: 1250/22, 3061/63, 3061/69, 3061/71

4.2.1 Decisions requested

Submission 1250/22 seeks to retain the land unit with no amendments, unless they strengthen the protection measures for the land unit.

Submission 3061/63 seeks that wetlands be given overt and clearly signalled protection and included in all planning considerations at the same level as earthworks, indigenous vegetation and historic sites e.g. reference to sites of ecological significance in clause 10a.5

Submission 3061/69 states there is a lack of critical linkage in the Plan to the HGMPA and protection and enhancement of wetland areas, especially those adjacent to the coast or feeding into the coastal marine area.

Submission 3061/71 is opposed to clause 10a.5 in its present form.

4.2.2 Planner's analysis and recommendations

4.2.2.1 Submission 1250/25 - retain clause 10a.5

The submitter seeks that the landform 4 (wetland systems) land unit is retained unless alterations are made which strengthen the protection measures for the land unit.

It is therefore recommended that this submission be accepted, in that it specifically supports inclusion of clause 10a.5 within the Plan. It noted that there is one change to the clause recommended further on in this report however it is considered that this change strengthens the protection of the land unit.

4.2.2.2 Submission 3061/63 – protection for wetlands

The submitter states wetlands need overt and clearly signalled protection but that landform 4 refers to larger wetlands and that further wetland containing areas are recognised through the sites of ecological significance (SES) (and significant areas on Great Barrier) but that there is no explicit reference in other "wetland-containing areas" to immediately alert and direct planner and users of the Plan to the SES.

As stated in the introductory paragraph of the land unit, landform 4 is applied to fresh water wetlands that drain to rivers, streams or estuaries and to areas of land that support a prevalence of vegetation typically adapted for life in saturated soil conditions. The submission does not identify any specific land to be included within the landform 4 (wetland systems) classification. In terms of natural justice, it would be unreasonable for the council to classify additional land as a site of ecological significance or landform 4 except in response to specific submissions which clearly identify the areas of land and which have been open to further submission.

It is considered that wetlands of particular ecological significance are, as the submitter recognises, protected through the SES provisions. The submitter suggests that there is no explicit reference to direct users of the Plan to SES provisions. SES provisions are provided for within part 7 – Heritage of the Plan and reference to this relationship is stated in clause 10a.5.7 Relationship with rules in other parts of the Plan, as it is done so for all parts of the Plan where a specific relationship is identified. The Plan also specifies protection yards for wetland and water bodies which protects streams and wetlands which are not identified as landform 4 or as being a site of ecological significance.

Planning maps are another important reference which allows users to clearly identify the relevant land unit/s (Map 1) and any scheduled items, natural hazards, roading and other additional limitations (Map 2) which could apply to a property.

It is not practicable for the council to map and identify all watercourses and wetlands or to attempt to show on the planning maps all the minor stream and wetland systems and major ephemeral watercourses that feed into them. This would require a considerable amount of additional mapping work and would affect the legibility of the maps. It is therefore recommended that the submission be rejected.

4.2.2.3 Submission 3061/69 – lack of reference to HGMPA

Section 9(3) of HGMPA requires the council to ensure that:

"...any part of a district plan that applies to the Hauraki Gulf, its island, and catchments, does not conflict with section 7 and 8 of this Act."

Section 10 of the HGMPA requires sections 7 and 8 of this Act to be treated as a New Zealand Coastal Policy Statement ('NZCPS'). Under section 75(3) of the RMA, a district plan must give effect to any NZCPS.

Sections 7 and 8 of HGMPA read as follows:

"7. Recognition of national significance of Hauraki Gulf

(1) The interrelationship between the Hauraki Gulf, its islands, and catchments and the ability of that interrelationship to sustain the life-supporting capacity of the environment of the Hauraki Gulf and its islands are matters of national significance.

(2) The life-supporting capacity of the environment of the Gulf and its islands includes the capacity—

(a) to provide for—

(i) the historic, traditional, cultural, and spiritual relationship of the tangata whenua of the Gulf with the Gulf and its islands; and

(ii) the social, economic, recreational, and cultural well-being of people and communities:

(b) to use the resources of the Gulf by the people and communities of the Gulf and New Zealand for economic activities and recreation:

(c) to maintain the soil, air, water, and ecosystems of the Gulf.

8. Management of Hauraki Gulf

To recognise the national significance of the Hauraki Gulf, its islands, and catchments, the objectives of the management of the Hauraki Gulf, its islands, and catchments are—

(a) the protection and, where appropriate, the enhancement of the life-supporting capacity of the environment of the Hauraki Gulf, its islands, and catchments:

(b) the protection and, where appropriate, the enhancement of the natural, historic, and physical resources of the Hauraki Gulf, its islands, and catchments:

(c) the protection and, where appropriate, the enhancement of those natural, historic, and physical resources (including kaimoana) of the Hauraki Gulf, its islands, and catchments with which tangata whenua have an historic, traditional, cultural, and spiritual relationship:

(d) the protection of the cultural and historic associations of people and communities in and around the Hauraki Gulf with its natural, historic, and physical resources:

(e) the maintenance and, where appropriate, the enhancement of the contribution of the natural, historic, and physical resources of the Hauraki Gulf, its islands, and catchments to the social and economic well-being of the people and communities of the Hauraki Gulf and New Zealand:

(f) the maintenance and, where appropriate, the enhancement of the natural, historic, and physical resources of the Hauraki Gulf, its islands, and catchments, which contribute to the recreation and enjoyment of the Hauraki Gulf for the people and communities of the Hauraki Gulf and New Zealand."

The resource management overview of the Plan, and in particular clause 2.3.2, recognises the importance of HGMPA. It is stated here that the Plan covers considerable areas which are subject to the provisions of HGPMA. It is also considered that the interrelationship between the Hauraki Gulf, its islands, and catchments and the ability of that interrelationship to sustain the life-supporting capacity of the environment of the Gulf and its islands are recognised as matters of national significance by HGMPA and by the Plan.

Although there is no specific mention of HGMPA within the landform 4 (wetland systems) land unit, it is inherent that the principles behind the Act have been addressed and considered in the formation of the land unit.

Clause 10a.5.2 outlines that the significant resource management issue of the land unit is to protect the natural character, ecological and hydrological value of wetland systems from the adverse effects of activities and buildings.

It is considered that protection of the expansive, unmodified character of the land unit through the restrictive, non-complying status of buildings and activities will ensure that amenity values are maintained and enhanced. These restrictions give effect to both the RMA and HGMPA. Therefore it is considered that specific reference to HGMPA is not necessary within the land unit.

The submission also raises concern about a lack of provision for additional protection and enhancement of wetland areas, especially those adjacent to the coast or feeding into the coastal management area

It is considered, as discussed in section 4.2.2.2, sites of ecological significance (SES) and sensitive areas (SA), provide additional protection for wetlands areas where certain areas are considered significant and worthy of protection.

The ecological values contained within these areas includes indigenous plants, the habitat of indigenous fauna, threatened species and their habitat and the protective functions vegetation may have on habitat, soils, steep land or water. Sensitive areas are the more sensitive parts of the indigenous vegetation outside the sites of ecological significance. They include fragile ecosystems and pockets of mature forest.

Therefore, it is considered that specific provision for additional protection and enhancement of wetland areas is unnecessary as this has been adequately addressed within Part 7 of the Plan. It is recommended that the submission be rejected.

4.2.2.4 Submission 3061/71 – opposed to entire land unit

The submitter raises opposition to clause 10a.5[1] landform 4 (wetland systems) land unit in its entirety until the items discussed above in sections 4.2.2.2 and 4.2.2.3 are remedied. The submitter further seeks that all subsections under part 10a - land units include the conservation and wise management of wetlands and that there be consequent protection under part 10c – development controls for land units and settlement areas.

As discussed in 4.2.2.2 and 4.2.2.3, the landform 4 (wetland systems) land unit applies to fresh water wetlands that drain to rivers, streams or estuaries and to areas of land that support a prevalence of vegetation typically adapted for life in saturated soil conditions. It is not practicable for the council to identify all watercourses and wetlands but that there are wetland protection yards (clause 10c.5.7) which provide protection for wetlands which are not classified in the landform 4 land unit. It is also discussed that in addition to the land unit, areas of particular ecological significance are provided for under clause 7.11 – ecologically significant sites. It is therefore not considered necessary to include reference in each land unit to wetland systems.

Without specifics of areas that have been omitted and with recognition that controls such as protection yards and natural hazards in Part 8 add a layer of protection to wetlands and water bodies, it is recommended that the submission be rejected.

4.3 Submission about clause 10a.5.3 - objective

Submission dealt with in this section: 3521/88

4.3.1 Decisions requested

Submission 3521/88 seeks to amend the objective to read:

"To protect the natural character, ecological, and hydrological value and functional integrity of the wetland systems from the adverse effects of activities and buildings."

4.3.2 Planner's analysis and recommendations

The submitter (Auckland Regional Council) states that wetlands systems throughout New Zealand have been significantly reduced to less than 10% of their former extent. The submission also identifies references from the RMA, particularly Part 2 section 6, which requires the recognition, and provision of wetlands (amongst other things) as matters of national importance.

The suggested amendment to clause 10a.5.3 is recommended in order to strengthen the existing objective by including the wording "...functional integrity..." It is considered that this wording recognises that wetland systems are a functioning system and protection of this function should form an important part of the land unit.

It is therefore recommended that the submission be accepted and that clause 10a.5.3 be amended accordingly.

4.4 Submissions about clause 10a.5.5 Rules – activity table

Submissions dealt with in this section: 3083/4, 3408/1

4.4.1 Decisions requested

Submission 3083/4 seeks to provide for rural property management plan in landform 4 as a discretionary activity

Submission 3408/1 seeks that appropriate vehicle crossings and utility buildings should have a discretionary status within landform 4 (wetland systems).

4.4.2 Planner's analysis and recommendations

4.4.2.1 Submission 3083/4 – rural property management plan

Rural property management plan is defined in part 14 of the Plan as follows:

" Rural property management plan means a long term management plan which comprehensively details all land use activities proposed to be undertaken on a site, including the location of buildings and activities, and the mitigation of effects proposed to manage adverse effects from those buildings and activities."

The Plan provides for rural property management plans as a separately listed activity in the following land units:

As discussed in the hearings report for landforms 1-7 (general), rural property management plans are intended to provide a means by which a landowner or occupier can plan comprehensively, and on a long term basis, for the use of a site, and obtain a consent for a range of buildings and activities which may otherwise require a succession of separate consents on an ad hoc basis.

Rural property management plans are not provided for in landform 1 (coastal cliffs and slopes), landform 4 (wetland systems) or in the dune systems area within landform 2 (dune systems and sand flats). Land with these classifications is environmentally sensitive and the only permitted activity listed within the Plan is ecosourced planting.

It is recognised that rural property management plans provide landowners with the opportunity to plan holistically for development on their properties and it is therefore considered that inclusion of the activity in landforms 1, 2 and 4 could facilitate protection and restoration of these environmentally sensitive areas. It is noted however that the Plan would need to incorporate criteria to ensure that protection and restoration occurs and that these sensitive landforms benefit from rural property management plans.

This issue has been raised in previous hearings and officers area still considering the implications of their inclusion in Landforms 1, 2 & 4. It is considered that further work is required on this topic and therefore, no recommendation is made in relation to the submissions at this time.

4.4.2.2 Submission 3408/1 – vehicle crossings and utility buildings

The submitter suggests a need for appropriate vehicle crossings and utility buildings for the purposes of weed eradication, replanting programmes and stock proof fencing within the land unit.

The objectives, policies and rules specifically do not provide for activities and buildings at all within the landform 4 land unit as it is considered that the natural character, ecological and hydrological values of the land unit are very high. The only activity provided for within the land unit that is permitted is ecosourced planting, while all other activities are non-complying.

Whilst it is recognised that land owners may wish to undertake weed eradication and stock proof fencing along with ecosourced planting, it is considered that the largely unmodified nature of the land unit should be maintained and that utility buildings and vehicle access should be provided on land outside the landform 4 land unit.

It is vital that, as wetlands are considered matters of national importance under the RMA, every effort is made to ensure that their high ecological value and hydrological importance be protected.

It is therefore not considered appropriate to provide for either vehicle crossings or utility buildings within the land unit and it is recommended that the submission be rejected.

5.0 Conclusion

This report has considered the decisions requested in submissions lodged regarding Landform 4 (wetland systems) land unit 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 amendments (as outlined in appendix 3), for the reasons outlined in this report.

Appendix 1

List of submissions and further submissions

Summary of decisions requested

Appendix 3

Recommended amendments to the Plan

[1] It is noted that the submission refers to opposition to clause 10a.6, however it is considered that this is an error and that the submission actually intends to refer to clause 10a.5 as the submission discusses matters relating to wetlands which are the topic of clause 10a.5.