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District Plan Hauraki Gulf Islands Section - Proposed 2006

(Notified version 2006)

Hearing reports index

Land unit – Pakatoa

Report to:	The Hearing Panel
Author:	Sarah Smith
Date:	20 August 2008
Group file:	314/274025

1.0 Introduction

This report considers submissions and further submissions ('submissions') that were received by the council in relation to land unit - Pakatoa 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 land unit - Pakatoa 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:

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).
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

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:

(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:

The Plan must "give effect to" any national policy statement and any New Zealand coastal policy statement (s75(3)(a) and (b)).
The Plan must "give effect to" the regional policy statement (made operative after 10 August 2005) (s75(3)(c)).
The Plan must be "not inconsistent with" any regional plan (s75(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 land unit – Pakatoa.

The Plan provisions retain a specific land unit for Pakatoa. However the provisions of the land unit have been amended to provide for the comprehensive redevelopment of the island.

The island provides for a mix of uses that support the potential for a small residential community combined with a tourist complex activity. The objectives, policies and rules for this land unit recognise the sensitive coastal environment and the high visual character and amenity values of the island.

The island is divided into three areas to ensure the land unit provides for the social and economic wellbeing while protecting the environment. These three areas are:

tourist complex area
residential area
landscape protection area.

The reason for this approach is that the island has three distinct areas and by dividing the land unit into sub-areas it provides the opportunity to allow more intense development in the tourist complex area while protecting the coastal slopes.

4.0 Analysis of submissions

4.1 Introduction

This section of the report discusses the decisions requested in submissions about land unit - Pakatoa 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 land unit - Pakatoa 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.

4.2 Submissions about deleting the provisions for Pakatoa

Submissions dealt with in this section: 2001/1

4.2.1 Decisions requested

Submission 2001/1 seeks for the deletion of all relevant provisions in the proposed Plan that apply to Pakatoa Island and their replacement with the provisions set out in the submission but appropriately amended into the structure and context of the proposed Plan. Thus objectives, policies, rules, standards and terms therein including the subdivision provisions should replace the equivalent provisions in the Plan.

4.2.2 Planner's analysis and recommendations

Firstly, the council would like to thank the submitter for the work undertaken to rewrite the land unit. For the reasons set out below, it is considered that the whole re-written land unit cannot be supported, but some individual elements can, and should be supported and changes made to the land unit.

Accordingly, it is not supported that land unit Pakatoa be deleted and replaced with all of the provisions proposed by the submitter for the following reasons:

The description, resource management issues and the resource management strategy proposed by the submitter are essentially the same as the ones in the Plan with minor amendments. These minor amendments only reword the text as notified and the value added to the Plan is questionable.
The submitter has also added a primary strategy for each precinct. The strategy for each precinct is essentially the objectives from the Plan as notified. This is not considered appropriate as the resource management strategy describes how the council is going to achieve the objectives of the land unit and should not include objectives.
The rules section proposed by the submitter is not appropriate for the following reasons:
- The submission proposes to give all activities that are not provided for in the activity table a discretionary activity status. This is not appropriate as there are a vast number of activities that are not provided for in the activity table as they are considered to be inappropriate on the island. Throughout the Plan as notified, activities not specifically provided for in the activity table are a non-complying activity.
- The proposed activity table incorporates rules that are development controls (part 10c) in the Plan as notified. For example the submitter seeks for the removal of any vegetation (excluding indigenous vegetation over 3m in height and/or greater than 600mm in diameter) as a permitted activity. The development controls stipulate the amount of indigenous vegetation that can be removed as of right, i.e. as a permitted activity. Therefore it is not necessary to include vegetation removal in the activity table.
The development controls proposed by the submitter include:
- Unnecessary provisions such as the provisions for wastewater stating that all disposal systems have to be in accordance with the bylaw, the regional plan and technical publication 58. It is not necessary to state all of the other regulations and plans that activities have to be in accordance with.
- The earthworks controls are considered excessive as compared with the rest of the HGI.
- There is repetition of rules that are provided in other parts of the Plan. For example, the artificial lighting provision proposed by the submitter is the same as the lighting provision in part 4 of the Plan.
The assessment criteria proposed by the submitter include:
- Air quality – this issue is outside Auckland City Council's jurisdiction.
- Lack of assessment of other matters such as cumulative effects, intensity and scale, landscaping and sustainable building design.
- Repetitions of the matters in part 11, with minor changes to the wording.

The general assessment criteria in part 11 of the Plan as notified is sufficient for assessing discretionary activities.

The submitter states that the alternative to deleting the provisions and replacing them with the provisions proposed by them is to address the number of changes to the proposed Plan that are sought. It is considered that this is a more productive way of assessing the provisions for Pakatoa and the report will address the alternative relief sought by the submitter in the balance of the report.

For the reasons outlined above and subject to specific assessment of the proposed provisions, submission 2001/1 is rejected.

Planner's recommendations about submission seeking rewrite

That submission 2001/1 be rejected.

4.3 Submissions about clause 10a.26.1

Submissions dealt with in this section: 2001/2

4.3.1 Decisions requested

Submission 2001/2 seeks for amendments to clause 10a.26.1 to include recognition of a wider range of activities on Pakatoa such as entertainment, marine support activities such as a chandlery, educational and recreational activities, functions, wharf activities including the supply of water and food.

4.3.2 Planner's analysis and recommendations

Clause 10a.26.1 is an introduction to the land unit and briefly lists the characteristics of the island. This is not intended to be an extensive list of all of the activities and features on the island. The objectives, policies and in particular rules provide recognition of the wide range of activities that are currently, and can potentially be, on Pakatoa.

It is therefore unnecessary to recognise all of the activities present on Pakatoa in the introduction, and it would add no value to the Plan. It is recommended that this submission be rejected.

Planner's recommendations about submissions seeking amendments to clause 10a.26.1

That submission 2001/2 be rejected.

4.4 Submissions about clause 10a.26.2

Submissions dealt with in this section: 2001/3, 2001/4, 2001/5

4.4.1 Decisions requested

These submissions seek various amendments to the wording in clause 10a.26.2.

4.4.2 Planner's analysis and recommendations

4.4.2.1 Limiting uses

Submission 2001/3 seeks amendments to this clause so that uses on Pakatoa are not described as being limited to residential and tourist activities.

The uses on Pakatoa are not limited to residential and tourist activities by clause 10a.26.2. Issue (3) states:

"How to enable continued use of the island for visitor and residential purposes, while limiting the visual impact of buildings and other structures when seen from the sea and other islands in proximity to Pakatoa and maintaining landscape values."

This issue is about limiting the visual impact of buildings, not limiting the uses on the island. The Plan does not limit uses on the island to just residential and tourist activities as can be seen in clause 10a.26.5 Rules – activity table where this land unit provides for other activities including entertainment, offices and restaurants.

It is therefore recommended that this submission be rejected as the uses on Pakatoa are not limited to only residential and tourist activities.

4.4.2.2 Changing a word

Submission 2001/4 seeks for the removal of the word 'limiting' in clause 10a.26.2(3) and replacement with the word 'managing'.

Clause 10a.26.2(3) states:

"How to enable continued use of the island for visitor and residential purposes, while limiting the visual impact of buildings and other structures when seen from the sea and other islands in proximity to Pakatoa and maintaining landscape values."

A resource management issue is an issue related to the land unit that needs to be addressed in the Plan. It does not say how it will be addressed, but states that it is an issue.

As a resource management issue the Plan seeks to address how to limit the visual impact of buildings and other structures on the island as well as enabling continued use. The Plan addresses this issue by managing the scale, form, height, coverage, design and location of new buildings.

It is considered appropriate for the wording to be amended to be more consistent with other wording in the Plan. It is recommended that clause 10a.26.2(3) be amended to state:

How to enable continued use of the island for visitor and residential purposes, while avoiding, remedying or mitigating adverse ~~limiting the~~ visual impact s of buildings and other structures when seen from the sea and other islands in proximity to Pakatoa and maintaining landscape values.

It is recommended that this submission be accepted in part.

4.4.2.3 Addition of words

Submission 2001/5 seeks for clause 10a.26.2(4) to include at the end of the clause the words 'in tandem with sustainable re-development of the island'.

Clause 10a.26.2(4) states:

"How to enable opportunities for public access to the island and recreational opportunities on the island."

It is considered appropriate to add the wording 'as part of the sustainable development of the island' to the end of clause 10a.26.2(4) as it is important to recognise that Pakatoa is a private island. It is therefore recommended that this submission be accepted in part as the clause be reworded.

Planner's recommendations about submissions seeking changes to wording

That submission 2001/3 be rejected.

That submission 2001/4 be accepted in part and clause 10a.26.2(3) be amended to state:

That submission 2001/5 be accepted in part and clause 10a.26.2(4) be amended to state:

How to enable opportunities for public access ~~to the island~~ and recreational opportunities ~~on the island~~ as part of the sustainable development of the island.

4.5 Submissions about clause 10a.26.3

Submissions dealt with in this section: 2001/6, 2001/7, 2001/8, 2001/9, 2001/10

4.5.1 Decisions requested

The submissions relating to clause 10a.26.3 in general raise the following issues:

removal of negative wording
referencing the diverse range of activities
providing for residential objectives and policies separate to visitor objectives and policies
spatial distribution
amendments to wording.

4.5.2 Planner's analysis and recommendations

4.5.2.1 Wording

Negative words

Submission 2001/6 seeks for amendments to clause 10a.26.3 by refocusing the objectives and polices to remove negative wording such as 'controlling' and replacement with positive wording such as 'managing'.

It is acknowledged that the connotations that each person places on certain words may be different. For instance, a person trying to build a large building may consider the word 'controlling' as negative. Whereas the neighbour to the proposed large building may consider the word as positive as it will be controlling the effects on them.

Words that may be seen as negative in this clause include:

controlling
limited
requiring.

The use of the words limited and requiring are appropriate in this clause. Limited is used in the following sentence "To provide for limited residential and visitor activities...". This is appropriate as the land unit imposes a limit to the number of buildings that can be constructed.

The word controlling is used in the following sentence:

"By controlling the scale, form, colour and location of new buildings or modification or additions to existing buildings in order to maintain or enhance visual amenity and character."

The use of the word controlling is appropriate as the Plan controls the scale, form, colour and location of new buildings through requiring a resource consent. By using the word control we are recognising the sustainable management requirement of the RMA to avoid, remedy or mitigate adverse effects on the environment.

It is therefore recommended that this submission be rejected.

Managing and enhancing

Submission 2001/9 seeks for clause 10a.26.3.3 to be amended to refer to managing and enhancing rather than preserving and to amend related policies accordingly.

What the Plan states (preserving) and what the submitter seeks (managing and enhancing) have quite different meanings. To preserve the coastal margins and rural character of the island is to keep these areas protected from anything that would cause its current quality to change or deteriorate. Whereas to enhance is to improve the quality.

It is not considered that the word "managing" is appropriate as the objective of the landscape protection area is not to manage the coastal margins and rural character. The objective is to preserve the coastal margins and this is achieved by the policies which restrict the activities in this area.

The concept of enhancement is supported and a suggested wording of 10a.26.3.3 could be:

To preserve and enhance the coastal margins and open rural landscape character of the island.

It is recommended that submission 2001/9 be accepted in part.

4.5.2.2 Referencing activities

Submission 2001/7 seeks that policy 10a.26.3.1(2) be amended to refer to a ' diverse range of activities that support the primary visitor and residential activities located on the island.'

The value of adding the words "primary" and "diverse" is not clear and is not supported.

It is recommended that submission 2001/7 be rejected.

4.5.2.3 Separate visitor and residential

Submission 2001/8 seeks for clause 10a.26.3.2 to be amended to reflect clause 10a.26.1 and provide for residential objectives and policies separate to visitor activities objectives and policies.

It is not necessary to separate residential activities from visitors activities in clause 10a.26.3.2 as the objective and the policies for both types of activities in the residential area are the same, and therefore this would add no value to the Plan. The Plan does separate the objectives and policies of the three sub-areas as described in clause 10a.26.1, and visitor activities are also provided for in the tourist complex area.

It would be useful if the submitter clarified what they mean at the hearing.

It is recommended that this submission be rejected.

4.5.2.4 Spatial distribution

Submission 2001/10 seeks for clause 10a.26.3.2(2) to enable flexibility in the spatial distribution of buildings in the residential area including clustering rather then just dispersal or a mix of those options.

Figure 10a.4 shows line AB; cluster development is only provided for northwest of this line due to the undeveloped state of the residential area below this line. It is considered appropriate to provide for cluster development where the environment is already highly modified. It is not possible to provide for both cluster and dispersed developments northwest of line AB, and therefore the request from the submitter to mix these two patterns of developments is not appropriate.

It is therefore recommended that this submission be rejected.

Planner's recommendations about submissions seeking changes to clause 10a.26.3

That submissions 2001/6, 2001/7, 2001/8 and 2001/10 be rejected.

That submission 2001/9 be accepted in part and the clause 10a.26.3.3 be amended accordingly to state:

To preserve and enhance the coastal margins and open rural landscape character of the island.

4.6 Submissions about clause 10a.26.4

Submissions dealt with in this section: 2001/11, 2001/13, 2001/14

4.6.1 Decisions requested

The submissions relating to the resource management strategy in general raise the following issues:

reference to a wider range of activities
delete the subjective statement
include a statement about the existing historical pattern of building and the future of the island.

4.6.2 Planner's analysis and recommendations

4.6.2.1 Wider range of activities

Submission 2001/11 seeks for clause 10a.26.4 to be amended so that it refers to a wider range of activities including entertainment, marine support activities, educational and recreational activities, functions, and wharf activities.

Clause 10a.26.4 sets out the strategic direction for Pakatoa Island, it is not intended to be an extensive list of all of the activities that are provided for on the island. It should also be noted that below in section 4.8.2.3 all of the activities that the submitter has requested to be added to the activity table, and consequently to this strategy, have not been accepted. Therefore it is not appropriate to state all of the activities listed by the submitter in this strategy.

The strategy also states:

"Land use activities relate to those needed to support residential or visitor activities."

This statement embraces all of the activities that are provided for on the island without having an extensive list in the strategy to identify all of the activities.

It is recommended that this submission be rejected.

4.6.2.2 Subjective statement

Submission 2001/13 seeks for the deletion of the subjective statement in clause 10a.26.4 that existing scale and intensity is quite high.

It is considered that this clause could be amended to be more accurate, though it is not supported that this clause be deleted. It is recommended that this submission be accepted in part, in so far as it supports the following amendment:

The strategy recognises ~~that~~ the existing scale and intensity of development ~~is quite high. The strategy recognises this existing use~~ by continuing to provide for a similar scale and intensity of activity.

4.6.2.3 Including a statement

Submission 2001/14 requests clause 10a.26.4 to state a strategy element of building on the existing historical patterns to take Pakatoa forward into the future as a resource that can provide for a range of residents and visitors in association with activities that support the marine environment and the opportunities for special land use activities that benefit from a small island location.

The strategy already recognises the existing housing patterns on Pakatoa by stating that this land unit will continue to provide for a similar scale and intensity of activity. The strategy also provides for residents and visitors by providing for the continued use and development of the island for residential and visitor activities.

It is considered that the strategy adequately deals with these issues and subject to any discussion at the hearing, it is recommended that this submission be rejected.

Planner's recommendations about submissions seeking changes to clause 10a.26.4

That submissions 2001/11 and 2001/14 be rejected.

That submission 2001/13 be accepted in part and clause 10a.26.4 be amended accordingly to state:

4.7 Submissions about figure 10a.4

Submissions dealt with in this section: 2001/26

4.7.1 Decisions requested

Submission 2001/26 seeks for figure 10a.4 to be amended to remove the line shown as AB.

4.7.2 Planner's analysis and recommendations

The line AB is present in figure 10a.4 as it is referred to in clause 10a.26.6.1. The purpose of line AB is to provide guidance to the user of the Plan as to the pattern of development that can occur on the island and its location. Northwest of line AB is where cluster development is permitted. Dispersed development is the only pattern of development permitted southeast of line AB, which is due to the undeveloped nature of this part of the island.

To remove line AB would in essence require changes to clause 10a.26.6.1 to remove the provisions that control the pattern of development that can occur on certain areas of the island. This would allow for cluster development, to occur on the lower reaches of the island. This is considered inappropriate as this southern area is a sensitive environment which is not highly modified.

Currently the area above the AB line is highly modified and therefore it is appropriate to provide for cluster development only in this area to ensure that sprawling at a high density does not occur. It is not possible to provide for both cluster and dispersed developments northwest of line AB, and therefore the request from the submitter to remove the AB line in order to mix these two patterns of developments is not appropriate.

It is considered inappropriate to remove the line as this line provides protection to the southern area of the island from a dominating built environment. It is therefore recommended that this submission be rejected.

Planner's recommendations about submissions seeking removal of line AB

That submission 2001/26 be rejected.

4.8 Submissions about clause 10a.26.5

Submissions dealt with in this section: 2001/15, 2001/16, 2001/17, 2001/18, 2001/19, 2001/20, 2001/21

4.8.1 Decisions requested

These submissions seek relief related to the following:

changes to the status of some activities
changes to the activities provided
defining a trigger size for visitor development
adding new activities to the table.

4.8.2 Planner's analysis and recommendations

4.8.2.1 Change of status – controlled activities

Submissions 2001/19 and 2001/20 seek for all buildings in the tourist complex area to be controlled activities other than those proposed within an application for an integrated visitor development and for all buildings in the residential area to be controlled activities.

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. The 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 activity 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 the 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 potential 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 land unit 24 – Pakatoa. The proposed Plan instead applies the restricted discretionary status to the construction of buildings (including alterations and additions) in land unit – Pakatoa. This is consistent with policies in the Plan about controlling the scale, form (design and materials), colour and location of buildings so they do not have adverse effects on the character and amenity values of Pakatoa.

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.

It is therefore recommended that submission 2001/19 and 2001/20 be rejected.

4.8.2.2 Buildings in landscape protection area

Submission 2001/21 seeks for table 10a.26.5 to be amended so that buildings in the landscape protection area are provided for as restricted discretionary activities up to 20m2 in footprint with a maximum height of 4m.

The objective of the landscape protection area is:

"To preserve the coastal margins and open rural landscape character of the island."

And policy (1) states:

"By protecting open space and natural areas on the island by restricting buildings, indigenous vegetation removal and earthworks in these areas."

To provide for buildings as a restricted discretionary activity in the landscape protection area would not be consistent with the objective and policy above. The coastal margins, open space and natural areas in the landscape protection area would not be preserved and protected if buildings were not restricted.

A restricted discretionary activity status is used in circumstances where it is possible to identify a limited range of effects that need to be assessed. The non-complying status for buildings in the landscape protection area provides a higher level of control as compared to a restricted discretionary status. By giving an activity a restricted discretionary status, in essence, means that the council considers that the activity can be suitable in the area with control over a limited range of effects. This is not the case in this instance as the council has identified that this landscape protection area is to be preserved and protected, rather than be built on and developed.

It is therefore not appropriate to give buildings a restricted discretionary activity status in the landscape protection area. It is recommended that this submission be rejected.

4.8.2.3 Adding activities

Submission 2001/15 seeks for the activity table 10a.26.5 to be amended to include the following:

Activity	Tourist complex area	Residential area	Landscape protection area
Access for pedestrians and boat launching	C	C	P
Residential activities	RD	P	NC
Marine services and allied retail	RD	NC	NC
Educational facilities	RD	NC	NC
Wharf related activities	RD	NC	NC
Cluster development	D	RD	NC
Open air markets	C	NC	NC
Outdoor adventure activities	RD	RD	D

Each of these activities are discussed below.

Access for pedestrians and boat launching

The Plan does not control access for pedestrians. The landowner has control over access to the public and therefore it is not appropriate to have this as an activity in the Plan as it is outside the scope of the Plan.

It is assumed that by boat launching, the submitter is referring to boat launching ramps and jetties. It is not appropriate for boat launching ramps and jetties to be provided for in the residential area and landscape protection area. Firstly, the residential area in this land unit does not abut the coast and therefore it is not possible to have a boat launching ramp or jetty in this area. Secondly, the landscape protection area in this land unit is an area that is to be preserved and protected from built structures. This is a sensitive area that is largely unmodified and therefore it not appropriate to permit such a structure to be constructed in this area as of right.

It is important to provide for such activities in a highly modified area which does not have high visual amenity values, as supported by policy 1.1.1 of the New Zealand Coastal Policy Statement 1994:

"It is a national priority to preserve the natural character of the coastal environment by:

(a) encouraging appropriate subdivision, use or development in areas where the natural character has already been compromised and avoiding sprawling or sporadic subdivision, use or development in the coastal environment."

Therefore, due to its modified environment and location, the tourist complex area should provide for boat launching ramps and jetties. The activity status sought by the submitter is controlled, however this is not appropriate as discussed above in 4.8.2.1 of this report. Due to the modified coastline which includes an existing wharf structure it is considered appropriate to provide for boat launching ramps and jetties as a permitted activity in the tourist complex area.

Residential activities

The submitter does not provide a definition of residential activities, and therefore it is not clear as to what activities this would include.

It is considered that the land unit already provides for the appropriate residential activities in the tourist complex area and residential area such as:

Construction and relocation of buildings, and the alterations and additions to the exterior of existing buildings
Home occupations
Multiple dwellings.

It is recommended that residential activities not be provided for as an activity. The submitter should further elaborate at the hearings if there is a particular residential activity that they feel is not provided for in this land unit.

Marine Services and allied retail

Retail premises are provided for in this land unit, with a permitted status in the tourist complex area and a non-complying status in the residential area and landscape protection area. To add 'allied retail' to the table would be repetitive and unnecessary.

It is considered that marine fuelling services should be provided for as Pakatoa is an island by which the main transport mode is boat. It is recommended that marine fuelling services be a permitted activity in the tourist complex area of this land unit, and non-complying for the other areas. A permitted status is appropriate as there are rules in Part 9 that manage hazardous facilities. The consent status for hazardous facilities is dependent on the properties of the hazardous substance and the quantity stored, used or disposed of. There are also minimum performance standards that apply to all hazardous facilities no matter what their status is. The Hazardous Substances and New Organisms Act 1996 also manages hazardous substances, and therefore there is sufficient control over the potential adverse effects of marine fuelling services.

Educational facilities

The definition of educational facilities includes among others schools and outdoor education centres. There is opportunity for other educational facilities such as an outdoor education centre in the tourist complex area and residential area. Also, the resource management strategy is to provide for activities that are needed to support residential and visitor activities.

It recommended that educational facilities be added to the activity table with a permitted status in the tourist complex area, a discretionary status in the residential area, and a non-complying status in the landscape protection area of the land unit.

Wharf related activities

The submitter does not elaborate on what wharf related activities include. It is considered that wharf related activities relates to a very broad spectrum of activities, such as fuelling services, launching facilities, storage buildings, passenger transport, wharf administration and freight handling activities and car parking.

It is not considered appropriate to lump all of these various activities that are wharf related under the same category and thus status. Each wharf related activity can have different adverse effects and therefore may need to be assessed differently. It has been recommended above that marine fuelling services be permitted in the tourist complex area and that boat launching ramps and jetties be a permitted activity in the tourist complex area. These activities are both wharf related.

It is recommended that wharf administration and freight handling activities be included in the tourist complex area as a permitted activity.

Beyond the above, it is not considered that any other wharf related activities are required on Pakatoa. The submitter may wish to elaborate on what wharf related activities they believe are not provided for in the Plan, beyond the above recommendations.

It is recommended that wharf administration and freight handling activities be added to the tourist complex area.

Cluster development

It is noted that cluster subdivision is controlled in part 12 – Subdivision of the Plan.

The Plan, in general, does not specify the patterns of development that can occur on one site. In this land unit the pattern of development is addressed in clause 10a.21.6.1. This clause permits cluster development northwest of line AB. It is therefore unnecessary to include "cluster development" in the activity table.

The Plan also controls the location of buildings by requiring a resource consent for all new buildings.

Open air markets

The definition of retail premises is:

"means land or buildings where goods, merchandise, equipment or services are sold, displayed, hired or offered for sale or direct hire to the public.

It includes any of the following:

a shop
a takeaway food bar
a market
premises which have an off-license under the Sale of Liquor Act 1989.

It does not include any of the following:

a service station
motor vehicle sales
motor vehicle services
restaurant, cafe and other eating places
an internet cafe (where five or more computer terminals are available for hire and use on the premises for gaming and internet access)."

This definition includes markets, and therefore an open air market is a retail premise. This means that it is permitted in the tourist complex area and non-complying in the residential area and landscape protection area.

It is recommended that open air markets not be added to the activity table as they are already covered as retail premises.

Outdoor adventure activities

Outdoor adventure activities are defined as:

"means an adventure sport undertaken outdoors. It includes paintball, mountain biking and associated tracks, bungy jumping, kayaking, and other outdoor pursuits. It does not include motorised activities such as motorcross or go-karting."

It is recommended that outdoor adventure activities be provided for in the tourist complex area and the residential area as a restricted discretionary activity. It is considered that the council should restrict its discretion to the following matters:

screening
noise

It is recommended that outdoor adventure activities be a non-complying activity in the landscape protection area.

It is therefore recommended that submission 2001/15 be accepted in part.

4.8.2.4 Tourist complex

Submission 2001/16 seeks for the table to be amended to remove the anomaly where within the tourist complex area permitted activities such as restaurants become a discretionary activity. The submission suggests that this is probably best achieved by deleting the 'tourist complex' activity in the table. Alternatively, replace tourist complex with integrated visitor development as a restricted discretionary activity ( 2001/17), and define a trigger size where an application for integrated visitor development applies, so as to distinguish it from smaller scale developments where building and activities will remain at the permitted and controlled activity level ( 2001/18).

The definition of tourist complex is:

"means land or buildings which are used for the day to day accommodation of tourists and short-stay visitors away from their normal place of residence.

It includes visitor accommodation in association with one or more of the following:

function facilities
taverns
restaurants, cafe and other eating places
entertainment facilities

without limiting the use of such facilities to people staying in the complex.

It may include premises licensed under the Sale of Liquor Act 1989.

It does not include:

camping facilities; or
boarding houses or hostels."

It is agreed that there is an inconsistency within the tourist complex area of the activity table. Visitor accommodation and singular activities such as restaurants, function facilities and entertainment facilities are a permitted activity. However, if an applicant was to construct visitor accommodation and a restaurant in association with that accommodation (i.e. a tourist complex) then it becomes a discretionary activity. A person is able to construct accommodation and a restaurant separately as a permitted activity however if they wanted to construct them together they would have to go through a consent process.

The submitter has provided two ways in which this can be resolved:

Delete tourist complex as an activity in the table.
Replace tourist complex with integrated visitor development as a restricted discretionary activity and define a trigger size.

Delete tourist complex

As notified, the table allows visitor accommodation to occur as of right, and other activities such as restaurants to occur as of right. However, if the two were to be proposed together it would then become a discretionary activity.

By deleting tourist complex from the activity table it will ensure that these activities can occur as of right, singly or together. It would also remove the existing inconsistency in the activity table as notified. It is therefore recommended that submission 2001/16 be accepted.

It is noted that the submitter is requesting the removal of tourist complex from the tourist complex area of the island. However, as tourist complex is a non-complying activity in the residential and landscape protection areas it is appropriate to remove the activity from the table entirely; as activities that are not provided for in the activity table are classified as a non-complying activity.

Replace with integrated visitor development

It is not appropriate to replace tourist complex with integrated visitor development. It is considered that this activity would not be used as it would require a developer to undergo a resource consent process as it would be a discretionary activity, when they can just construct all of the activities individually as a permitted activity.

It is recommended that submission 2001/17 be rejected.

Trigger size

Submission 2001/18 requests for a trigger size to be defined to enable small-scale developments to remain as permitted and controlled and for larger scale developments to be defined as an integrated visitor accommodation.

It is recommended above that integrated visitor development be removed from the activity table, and therefore it is not necessary to have a trigger size.

It is recommended that submission 2001/18 be rejected.

Planner's recommendations about submissions seeking changes to clause 10a.26.5

That submissions 2001/17, 2001/18, 2001/19, 2001/20 and 2001/21 be rejected.

That submission 2001/15 be accepted in part and clause 10a.26.5 be amended accordingly to add the following activities to the activity table:

Activity	Tourist complex area	Residential area	Landscape protection area
Boat launching ramps and jetties	P	NC	NC
Marine fuelling services	P	NC	NC
Educational facilities	P	D	NC
Outdoor adventure activities	RD	RD	NC
Wharf administration and freight handling activities	P	NC	NC

That submission 2001/16 be accepted and clause 10a.26.5 be amended accordingly by removing 'tourist complex' from the activity table.

4.9 Submissions about clause 10a.26.6

Submissions dealt with in this section: 2001/25, 2001/27, 2001/28, 2001/29, 2001/30, 2001/31

4.9.1 Decisions requested

The submissions relating to clause 10a.26.6 in general raise the following issues:

the allocation and number of dwellings
the link between residential units and visitor accommodation
define a trigger for visitor accommodation.

4.9.2 Planner's analysis and recommendations

4.9.2.1 Allocating buildings in the residential area

Submission 2001/27 seeks the removal of any references in clause 10a.26.6 that allocate buildings within the residential area.

Clause 10a.26.6.1 (2) states:

"Of the 50 dwellings and/or visitor accommodation units provided for in (1) above, the maximum number that can be located in the residential area of the land unit is either:

a) 30 – where the dwellings and/or visitor accommodation units are clustered to the northwest of line AB (refer to figure 10a.4: Pakatoa); or

b) 15 – where the dwellings and/or visitor accommodation units are located in a dispersed pattern across the entire residential area."

It is important to allocate where buildings can be constructed on the island to ensure that the island does not become a predominantly built environment.

By not allocating buildings within the residential area it would mean that buildings could be constructed anywhere within this area. South east of the AB line (refer to figure 10a.4) there is little to no development. Thus these provisions around buildings below the AB line seek to ensure that buildings are dispersed to avoid adverse visual effects in this sensitive environment.

It is therefore inappropriate to remove references to the allocation of buildings in the residential area, and it is recommended that this submission be rejected.

4.9.2.2 Linking visitor accommodation and residential units

Residential and visitor links

Submission 2001/28 seeks for the removal of the provisions in this clause that link the residential density in the residential area with visitor accommodation units.

Clause 10a.26.6.1 sets out the densities of buildings in the residential area.

If the owner wishes, all or the majority of the buildings in the residential area could be visitor accommodation units, but they still must comply with the densities set out in clause 10a.26.6.1. If visitor accommodation units were not in this provision it would enable these units to be constructed anywhere in the residential area of this land unit. This would not achieve the objective and policies of the residential area and could compromise the small island character and visual amenity.

It is recommended that this submission be rejected.

Separated visitor accommodation and residential units

Submission 2001/29 seeks for clause 10a.26.6 to provide for visitor accommodation and residential units in the tourist complex area separately.

It is unclear what the submitter is seeking and therefore it is recommended that they clarify this at the hearing.

At this stage, it is recommended that submission 2001/29 be rejected.

4.9.2.3 Increasing the maximum number of dwellings or units and pattern

Submission 2001/30 seeks for the tourist complex area to provide for a maximum of 30 residential units and 50 visitor accommodation units.

Submission 2001/25 seeks for clause 10a.26.6.1 to be amended so that a minimum of 50 residential units can be provided in a cluster form and 25 in dispersed form.

These submissions seek for significant increases from what is provided for in the Plan as notified. The Plan states that the maximum number of buildings on the island is 50 in total. Therefore, the request to provide for 80 buildings in the tourist complex area alone far exceeds the provisions of the Plan.

It is considered that there may be benefits to increasing the number of buildings permitted on the island however, as a landscape analysis was not provided in the submission there is no evidence to warrant this change. The council also has not been provided with any analysis on the physical carrying capacity, i.e. infrastructure, of development at this higher density. It is recommended that the submitter present further evidence, including landscape and physical carrying capacity evidence on this matter at the hearing.

Subject to any further discussion in the hearing, it is recommended that these submissions be rejected.

4.9.2.4 Trigger for integrated visitor development

Submission 2001/31 seeks for clause 10a.26.6 to define a trigger that determines through a combination of gross floor area and proposals for other uses in tourist complex areas when those units will fall within the scale such as that an integrated visitor development application is required.

It is noted that above in section 4.8.2.4 of this report it is recommended not to include integrated visitor development as an activity in this land unit and also for no triggers to be defined.

It is therefore recommended that submission 2001/31 be rejected.

Planner's recommendations about submissions seeking changes to clause 10a.26.6

That submissions 2001/25, 2001/27, 2001/28, 2001/30 and 2001/31 be rejected.

4.10 Submissions about landscape protection area and access

Submissions dealt with in this section: 3521/112, 3574/24, 3574/25

4.10.1 Decisions requested

Submission 3521/112 seeks for policy 10a.26.3.3(1) to be amended to read "By protecting, restoring and enhancing open space and natural areas on the island by restricting buildings, indigenous vegetation and earthworks in these areas."

Submission 3574/24 supports the proposal to classify Pakatoa as a landscape protection area.

Submission 3574/25 supports the idea of public access right around Pakatoa but they are concerned that biosecurity measures must be strong to prevent the introduction of animal pests.

4.10.2 Planner's analysis and recommendations

It is recommended that submissions 3574/24 be accepted as it supports the landscape protection area on Pakatoa. It is recommended that submission 3574/25 be accepted as the submission supports the idea of public access right around the island which is stated in the resource management issues.

4.10.2.1 Enhancing and restoring

In relation to adding the word "enhancing" to clause 10a.26.3.3(1) this amendment is supported as enhancement of the environment is appropriate in some circumstances, such as subdivision where a significant environmental feature is to be protected. However, as "enhancement" is not appropriate in every circumstance, it is considered that the words "where appropriate" should also be added to the policy. It is noted that the use of the term "enhancement where appropriate" is consistent with section 8 of the HGMPA.

Adding the word "restoring" to clause 10a.26.3.3(1) is not supported as restoration of a natural feature or area is more likely to be the result of a private initiative rather than the result of the provisions of the Plan. It is also noted that "restoration" is provided for by the term "enhancement" as discussed above.

Planner's recommendations about submissions supporting provisions

That submissions 3574/24 and 3574/25 be rejected, and submission 3521/112 be accepted in part with clause 10a.26.3.3(1) amended to state:

"By protecting, and where appropriate, enhancing open space and natural areas on the island by restricting buildings, indigenous vegetation removal and earthworks in these areas."

4.11 Submissions about consistency of term

Submissions dealt with in this section: 2001/22

4.11.1 Decisions requested

Submission 2001/22 seeks for references to visitor complex and tourist complex to be amended to get consistency of term.

4.11.2 Planner's analysis and recommendations

The term visitor complex is not used in land unit Pakatoa and therefore it is unclear what the submitter seeks to address. Subject to further clarification from the submitter it is recommended that this submission be rejected.

Planner's recommendations about submissions supporting provisions

That submission 2001/22 be rejected.

4.12 Submissions about subdivision

Submissions dealt with in this section: 2001/36, 2001/37, 2001/39, 2001/40, 2001/41, 2001/42, 2001/43, 2001/44, 2001/45, 2001/46, 2001/47, 2001/48, 2001/49, 2001/50, 2001/51, 2001/52

4.12.1 Decisions requested

These submissions raise the following issues in general:

delete standard and terms
delete minimum site sizes
reference density standards
activity status of subdivision
amendments to assessment criteria
delete development code
reference to landscape architect report.

4.12.2 Planner's analysis and recommendations

4.12.2.1 Submissions 2001/36 and 2001/37

Submissions 2001/36 and 2001/37 seek to amend clauses 12.9.1 and 12.9.9 respectively to reflect these submissions.

Comprehensive development is provided for within the Pakatoa land unit (refer to clause 12.9.9). This is largely due to the existing pattern of development that has occurred on the island and the need to achieve a balance between open space and buildings while also preserving the visual character of the land unit as seen from the sea and eastern Waiheke. Future uses are envisaged on the island as outlined in the activity table for this land unit however, the Pakatoa provisions have been written to take into account the limits of the physical and visual carrying capacity for a small island and the sensitive nature of the coastal environment.

Subdivision within this land unit is subject to standards and terms and assessed in accordance with the general assessment criteria (clause 12.11) as well as specific assessment criteria for this land unit (clause 12.12.6). This approach recognises the specific characteristics of Pakatoa and seeks to provide for a more comprehensive and integrated assessment of both subdivision and land use in terms of the design and layout for this island.

More specifically, the subdivision provisions are closely linked to the land use rules and the resource management strategy sought for this island. The standards and terms are as follows:

"1. The existing tourist facility may be subdivided into one title.

2. Minimum site sizes:

(a) A minimum site area of 500m2 per dwelling may be approved where existing and/or proposed buildings are clustered and have an equal undivided share in the balance area of the island. The comprehensive development must incorporate residential and/or visitor accommodation activities to maximum density of 50 dwellings or visitor accommodation units; or

(b) A minimum site size of 0.5ha and median site size of 1.5ha may be approved where a dispersed pattern of buildings is proposed."

The specific densities reflect the existing built development on the island, being a large tourist complex and the clustering of buildings along the northern end of the island and open space to the south.

As outlined above, the provisions seek to recognise the existing pattern of development on the island which comprises three distinct landscape areas. This includes the existing tourist facility, the existing cluster of buildings along the northern end of the island as well as the open landscape to the south. The subdivision provisions therefore provide for the separate titling of the tourist complex with two options available for the residential area. The first option recognises the existing cluster of dwellings on the island and seeks to provide for cluster subdivision which will create free hold titles for each building with 500m ² site sizes. By providing for cluster subdivision in this form, will ensure that the development is contained to one part of the island and mitigated by the protected open space located to the south.

Alternatively, an applicant may chose to re-configure the existing pattern of buildings and disperse buildings throughout the southern portion of the site. This will require larger site sizes to ensure that the landscape values of the island and the coastal environment are not adversely affected.

The subdivision provisions are therefore based upon forming boundaries around the existing development, or dispersing buildings as a mean of reducing the impact on the small island character. The rules also provide some flexibility so that the existing pattern of development on the island can be redesigned. These provisions are also directly linked to the land use rules contained in section 10a.26.6.1 of the Plan.

The submitter seeks the deletion of all relevant provisions in the proposed Plan that apply to Pakatoa Island and their replacement with the provisions set out in the submission but appropriately amended into the structure and context of the proposed Plan. In addition, the submitter seeks to change the spatial distribution of buildings on the island by increasing the number of residential and visitor accommodation units and spreading development more intensively into the lower southern portion of the island. The submitter also requests that development be extended into the landscape protection area.

Many of the decisions sought by the submitter have been analysed above, with most recommendations seeking to reject the decisions sought. This is because the description, resource management issues and the resource management strategy proposed by the submitter are essentially the same as the ones in the Plan with minor amendments. Therefore, for reasons outlined in section 4.2.2 above, it is not considered necessary to make consequential amendments to clauses 12.9.1 and 12.9.9.

In addition and as outlined in section 4.5.2.4 above, the purpose of line AB in figure 10a.4 is to provide guidance to the user of the Plan as to the pattern of development that can occur on the island and its location. Northwest of line AB is where cluster development is permitted. Dispersed development is the only pattern of development permitted southeast of line AB, which is due to the undeveloped nature of this part of the island.

It is considered appropriate to provide for cluster development where the environment is already highly modified as opposed to sprawling at a high density. It is not possible to provide for both cluster and dispersed developments northwest of line AB, and therefore the request from the submitter to mix these two patterns of developments is not appropriate.

To remove line AB would in essence require changes to clause 10a.26.6.1 to remove the provisions that control the pattern of development that can occur on certain areas of the island. This would allow for cluster development, i.e. high density development, to occur on the lower reaches of the island.

Moreover, it is important to allocate where buildings can be constructed on the island to ensure that the island does not become a dominantly built environment. Being one of the smaller inhabited islands in the gulf, Pakatoa is a sensitive island that requires control around the built environment.

By not allocating buildings within the residential area it would mean that buildings could be constructed anywhere within this area, south east of the AB line (refer to figure 10a.4) where there is little to no development. Thus, these provisions which permit buildings provide protection to that area from a dominating built environment below the AB line in a dispersed nature to ensure this sensitive environment does not become dominated.

It is considered that a comprehensive development for Pakatoa will better reflect the objectives, policies and rules for this island and enable the continual use of the existing residential and visitor facilities while ensuring that the natural character of the island, particularly the coast, is not adversely affected.

For these reasons, it is recommended that submissions 2001/36 and 2001/37 are rejected.

In terms of increasing the number of built forms on the island, as stated in section 4.9.2.3, it is considered that there may be benefits to increasing the number of buildings permitted on the island however, as a landscape analysis was not provided in the submission there is no evidence to warrant this change. It is recommended that the submitter present landscape evidence on this matter at the hearing.

Should the panel support an increase in the number of built forms on the island, consequential changes to the subdivision provisions may need to be made.

4.12.2.2 Submissions 2001/39, 2001/40, 2001/41

Submission 2001/39 seeks to delete clause 12.9.9.3(1).

Submission 2001/40 seeks that the minimum site areas as proposed in clause 12.9.9.3 should be deleted in their entirety and replaced by standards that allow for; clustered residential units to have separate title whether or not they have a share in any balance land beyond that land immediately associated with a dwelling which may be a minimum of 350m2 in area.

Submission 2001/41 seeks that the standards for subdivision in clause 12.9.9 for the visitor complex area should reference the density standards proposed by the submitter and also should enable separate title to be created for all existing, approved or permitted land use activities that are neither residential or visitor accommodation units.

As outlined above, the above submissions seek to change the spatial distribution of buildings on the island by increasing the number of residential and visitor accommodation units, spreading development more intensively into the lower southern portion of the island while also enabling development with in the landscape protection area. Indeed, the density standards sought by the submitter are as follows:

"(h) Residential/Visitor Accommodation Density

All proposed residential and/or visitor accommodation density must comply with the following table:

Precinct	Density
1	Maximum of 30 residential units and 50 visitor accommodation units
2	Clustered buildings	Dispersed Buildings
	Maximum of 50 units	Maximum of 25
3	No buildings other than as provided for in Table 1"

As already outlined in the section above, the purpose of figure 10a.4 is to provide guidance to the user of the Plan as to the pattern of development that can occur on the island and its location. Northwest of line AB is where cluster development is permitted. Dispersed development is the only pattern of development permitted southeast of line AB, which is due to the undeveloped nature of this part of the island.

Thus, the provisions provide protection to the southern area from a dominating built environment below the AB line in a dispersed nature to ensure this sensitive environment does not become dominated.

For this reason, it is considered that a discretionary activity comprehensive development is the most appropriate means of achieving the resource management strategy envisaged by the Plan for Pakatoa. Accordingly, submissions 2001/39, 2001/40 and 2001/41 are rejected.

4.12.2.3 Submission 2001/42

Submission 2001/42 seeks that subdivisions that are within the standards proposed by the submitter for visitor complexes should be restricted discretionary activities. Any subdivision beyond that should be discretionary.

For reasons outlined in the section above, it is considered that a discretionary activity for comprehensive development is the most appropriate means of achieving the resource management strategy envisaged by the Plan for Pakatoa. On this basis, it is not considered appropriate to make consequential amendments to clause 12.9.9.3 and it is recommended that submission 2001/42 be rejected.

Notwithstanding this, should the panel accept the decisions sought by the submitter, then consequential amendments to clause 12.9.9.3 may need to be made.

4.12.2.4 Submission 2001/43

Submission 2001/43 seeks that the assessment criteria in clause 12.11 should be amended to reflect other submissions by the submitter in respect of the Pakatoa provisions.

For reasons already outlined in the section above, it is considered that a discretionary activity comprehensive development is the most appropriate and therefore it is inappropriate to amend the assessment criteria.

It is recommended that this submission be rejected.

4.12.2.5 Submissions 2001/44 and 2001/45

Submissions 2001/44 and 2001/45 seek that the reference to the HGI development code in clauses 12.11.2 and 12.11.8 respectively, should be deleted because it is not consistent with TP124 and not relevant to Pakatoa.

As outlined in section 4.45.2.1 and 4.63.2.1 of the Part 12 – subdivision hearing report, the Hauraki Gulf Islands Development Code has been written as a tool for the persons wishing to undertake development in a sustainable manner within the Hauraki Gulf Islands.

Overall, it is considered that while the Hauraki Gulf Island Development Code is a draft document, the information contained within this code is relevant to the community and environment of the Hauraki Gulf Islands (including Pakatoa).

For these reasons, it is recommended that submissions 2001/44 and 2001/45 be rejected.

4.12.2.6 Submission 2001/46

Submission 2001/46 seeks that clause 12.11.5 be amended to reflect the fact that subdivision may follow the erection of building and reflect activities that are consented or proposed.

The rationale of submission 2100/46 is supported as subdivision can follow after the erection of building and activities which have been lawfully established. In particular, a freehold subdivision is often applied for on sites which have lawfully established multiple dwellings and activities. It is considered that such forms of subdivision must still be assessed based on whether there is adequate physical capacity and capability to integrate development impacts. This is because additional development rights such as increased site coverage can occur as a result of creating two freehold sites where previously there was one.

In addition, such forms of subdivision must take into consideration the location of the existing buildings so that the proposal avoids any non-compliance with land use rules. For example, a height in relation to boundary infringement may occur where previously there was none.

It is considered that clause 12.11.5 already takes into account these types of subdivision by way of clauses 12.11.5(4) and 12.11.5(7) as follows:

"4. Locating proposed site boundaries so that they integrate and locate the building platforms in relation to existing buildings and adjoining sites.

7. Avoiding any non-compliance with the rules associated with existing buildings. This includes considering the extent to which subdivision is designed so that any level of non-compliance that already exists is not increased."

The above clauses take into consideration any existing buildings that are already located on the parent site. This is to ensure that boundaries are located around existing structures so that non-compliances with the land use and subdivision rules are not created. In addition, consideration is given to any existing non-compliance with the rules which may be exacerbated.

It is considered that the decision sought by submission 2001/46 is already an assessment matter in clause 12.11.5. On this basis, it is recommended that submission 2001/46 be accepted however, no changes to clause 12.11.5 is recommended.

4.12.2.7 Submission 2001/47

Submission 2001/47 seeks that clause 12.11.6 be amended to reflect the water based access to Pakatoa more explicitly and to support maintenance of wharf access, on land access to the wharf (including provision to delete any Plan requirements for any coastal yards or esplanade reserves that hinder such access) and development that facilitates that access.

Criteria 12.11.6 does not seek to restrict access to sites; instead, the provisions recognise that as part of subdivision, each proposed site must have adequate physical capacity and capability to integrate development impacts. This includes having the capacity to safely accommodate on-site car parking and access which is a requirement of Part 13 (connectivity and linkages).

Assessment criteria in clauses 12.11.6 (Access to sites) and 12.11.15 (Earthworks and land disturbance) seek to ensure that the access to sites is practical, legal and safe while also ensuring that that the natural character and landscape values of each land unit and settlement area are not adversely affected through the modification of the environment.

Policy 3 of objective 12.3.4 (Access roads and tracks) and criterion 12.11.6(2) considers alternative measures such as legal foot access or access by sea. In the event that legal vehicular access to a site(s) is deemed either unnecessary or impractical or where sea access is possible, then these alternative forms of access will be accepted.

It is not considered necessary to provide specific reference to Pakatoa in the criteria as it applies to all forms of discretionary activity subdivision. Should specific reference to this island be required, then this should be included as part of the specific assessment criteria for this island. In addition, the land use provisions are recommended to provide for boat launching ramps and jetties as permitted activities in the tourist complex area. Furthermore, this area is not subject to the landscape protection area which would inhibit water base access.

As stated previously, it is not appropriate for boat launching ramps and jetties to be provided for in the residential area and landscape protection area. Firstly, the residential area in this land unit does not have contact with the sea and therefore it is not possible to have a boat launching ramp or jetty in this area. Secondly, the landscape protection area in this land unit is an area that is to be preserved and protected from built structures. This is a sensitive area that is largely unmodified and therefore it not appropriate to permit such a structure to be constructed in this area as of right.

It is noted that a coastal protection yard has been included in Part 10c of the Plan for Pakatoa however, this is to ensure that should buildings and/or earthworks occur within this setback, then a discretionary activity assessment will ensure that the effects on the coastal environment are avoided, remedied or mitigated.

In terms of the taking of esplanade reserves or strips, it is considered that the provision for continued access will need to be assessed at the time of subdivision. Clause 12.13 (Esplanade reserves) outlines the provisions for the taking of esplanade reserves and/or strips and will take into consideration existing uses on the land.

On this basis, it is recommended that submission 2001/47 be rejected.

4.12.2.8 Submission 2001/48

Submission 2001/48 seeks that clause 12.11.12 be amended to include reference to any circumstances where the provision of coastal reserves, public access and open space as defined in the Plan provisions exceed the requirements of the RMA and how credits may be applied to the calculations of financial contributions.

Clause 12.11.12 (open space, recreation and financial contributions) is outlined as follows:

"1. The extent to which land and/or financial contributions provide for open space and recreation that is consistent with the objectives and policies of the Plan.

2. The extent to which adverse effects generated from the subdivision and associated development can be adequately avoided, remedied, mitigated or off-set by providing works and services on or off the site(s) and/or by paying or providing a financial contribution.

3. The extent to which the subdivision where possible, provides for public access to and alongside the coast, streams, lakes and wetlands.

Notes:

The council may require a report from an appropriately qualified independent person to assess whether any open space or recreational facilities provided as a financial contribution (eg walkways) are in accordance with the consent conditions.
The council's parks officers will be consulted regarding the suitability and practicality of any proposed public reserves or pedestrian linkages.
All proposed reserves must be vested and any easements created before titles are issued."

The submission alludes to the requirement for taking esplanade areas where sites less than 4ha are created. Section 230 of the RMA states that where any site of less than 4ha is created when land is subdivided, an esplanade reserve 20m in width is to be set aside from that site along the mark of mean high water springs of the sea, and along the bank of any river whose bed has an average width of 3m or more, or along the margin of any lake whose bed has an area of 8ha or more. The purpose of this requirement is to facilitate public access to the coast, rivers and lakes.

The provisions for taking esplanade areas is contained in clause 12.13 (Esplanade reserves) of Part 12. Provision is also made to reduce, waive, cancel or vary an esplanade area as well as increase the width of an esplanade area and/or take esplanade areas for sites of 4ha or more.

Guidelines for increasing the width of an esplanade area are outlined in section 12.13.6 of the Plan (Guidelines for increasing the width of an esplanade area). A note is provided below clause 12.13.6(4) which states:

"An esplanade reserve or esplanade strip greater than 20m requires the council to purchase the extra land in accordance with section 237E(2) of the RMA. Alternatively, any esplanade area that requires compensation in accordance with section 237E(2) of the RMA can be used as part of the financial contribution required by part 6 - Financial contributions."

The above note expressly states that for subdivisions which exceed the esplanade requirements of the RMA either compensation will be given to the applicant or the additional land areas can be used as part of the financial contribution requirements.

It is considered that this approach is supported by clause 12.11.12 which considers the extent to which land and/or financial contributions provide for open space and recreation that is consistent with the objectives and policies of the Plan. These objectives and policies, particularly those contained in clause 12.3.3 (public access to and along the coastline), seek to provide for esplanade areas and/or financial contributions to achieve public access to the coast, rivers and lakes.

On this basis, while submission 2001/48 is supported, it is considered that the current provisions already provide for the consideration of "credits" as requested by submission 2001/48. This provision is outlined in several clauses of part 12 which when read in their entirety, provides for subdivisions which exceed the requirements of 230 of the RMA to use the additional land as part of a financial contribution.

For reasons outline above, it is recommended that submission 2001/48 be accepted however, no changes to clause 12.11.12 is recommended.

4.12.2.9 Submission 2001/49

Submission 2001/49 seeks that the specific assessment criteria in clause 12.12.6 be amended to reflect the submitter's concerns and to separate out additional restricted discretionary assessment criteria and associated conditions.

For reasons already outlined in section 4.12.2.3 above, it is considered that a discretionary activity for comprehensive development is the most appropriate means of achieving the resource management strategy envisaged by the Plan for Pakatoa. Therefore it is not appropriate to provide assessment criteria for a restricted discretionary activity. It is recommended that this submission be rejected.

4.12.2.10 Submission 2001/50

Submission 2001/50 states that clause 12.12.6(1) references a report by a landscape architect which isn't in itself a criterion and seeks that it be included as a rule if deemed necessary at all.

Criteria 12.12.6(1) states that the visual landscape assessment can only be undertaken by a landscape architect. The above submission request that this requirement be removed and a determination on the need for such a report is undertaken as part of the section 92 process.

While it is important that the landscape character of the land unit(s) and amenity value of environment are not adversely affected by a subdivision seeking to protection significant environmental features, it is considered that in certain circumstances some applications particularly those which may be notified may require a more comprehensive assessment of landscape effects to be undertaken by a landscape architect.

Notwithstanding this, it is accepted that the Plan should not presume that a landscape architect will be required for the comprehensive development subdivision particularly as a determination for such a report can be made once the reporting officer has assessed the application against section 93 and 94 of the RMA. In the event that the landscape effects on the environmental cannot be adequately determined, then a landscape architect can be requested to undertake the visual assessment pursuant to section 92 of the RMA.

In addition to the above, it is noted that the provision of a landscape report being prepared by a landscape architect could create uncertainty over how the criteria is to be assessed particularly when an applicant may elect to not provide a landscape report prepared by a landscape architect. This could result in confusion over whether the criteria has been met and whether this changes the activity status of the application.

On this basis, it is recommended that submission 2001/50 be accepted and clause 12.12.6(1) be amended as follows:

The extent to which the proposal provides for development that will be visually integrated with the landscape, ~~as supported by a report from a landscape architect~~ . ~~The report~~ This assessment must consider ~~assess~~ the effects of the development in relation to the landscape character and amenity value of the island and wider visual catchment

4.12.2.11 Submission 2001/51

Submission 2001/51 seeks that the criteria in clause 12.12.6 be reworded to more clearly express the relevant matters for consideration and in particular replace the term 'the extent to which' with 'whether the proposal will'.

It is considered that this clause clearly states the matters which council will assess comprehensive development on Pakatoa. It is therefore recommended that this submission be rejected.

4.12.2.12 Submission 2001/52

Submission 2001/52 seeks for clause 12.12.6(3) to be reworded or amended to reference the extent to which protection and public good outcomes exceed Plan requirements and constitute a financial contribution.

Submission 2001/52 requests a decision similar to that which was considered in section 4.63.2.15 of the part 12 - subdivision hearing report.

As outlined in section 4.63.2.15, it is considered that the current provisions in clause 12.13 (Esplanade reserves) already provide for the consideration of financial contributions where good outcomes exceed Plan requirements. This provision is outlined in several clauses of part 12 which, when read in their entirety, provides for subdivisions which exceed the requirements of 230 of the RMA to use the additional land greater than 20 metres in width as part of a financial contribution.

In addition, as outlined in clause 6.5.2.2 (level and form of contribution – subdivision consents) of the proposed Plan, financial contributions may be taken in the form of money, land or both. Therefore, alternative forms of financial contribution can be given depending on the merits of the application. Moreover, under clause 6.5.2.4, the council must consider whether a maximum financial contribution is payable particularly if the subdivision will be of benefit either to the physical and/or natural environment or the local and/or wider community, having regard to the extent to which the proposal protects environmental and heritage features as part of the overall development.

Additional assessment criteria for reducing financial contributions also considers the extent to which any adverse effect of subdivision have been or will be avoided, remedied or mitigated through mechanisms other than a financial contribution such as a works and services conditions under section 108(2)(c) of the RMA.

On this basis, while submission 2001/52 is supported, it is considered that the current provisions already provide for alternative forms of financial contributions where a subdivision benefits the environment and proposed mitigation measures are in excess of that required to mitigate adverse effects.

For reasons outline above, it is recommended that submission 2001/52 be accepted however, no changes to clause 12.12.6(3) is recommended.

Planner's recommendations about submissions relating to subdivision

That submissions 2001/36, 2001/37, 2001/39, 2001/40, 2001/41, 2001/42, 2001/43, 2001/44, 2001/45, 2001/47, 2001/49, 2001/51, be rejected.

That submissions 2001/46, 2001/48 and 2001/52 be accepted with no amendments to the Plan.

That submission 2001/50 be accepted and clause 12.12.6(1) be amended accordingly to state:

5.0 Conclusion

This report has considered the decisions requested in submissions lodged regarding Pakatoa 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.

	Name and title of signatories	Signature
Author	Sarah Smith, assistant planner
Reviewer	Megan Tyler, Manager: Islands
Approver	Penny Pirrit, Manager: City Planning

Appendix 1

List of submissions and further submissions

Appendix 2

Summary of decisions requested

Appendix 3

Recommended amendments to the Plan

Amendment to Part 12 – Subdivision of the Plan

Clause 12.12.6(1) to be amended accordingly to state:

The extent to which the proposal provides for development that will be visually integrated with the landscape., ~~as supported by a report from a landscape architect. The report~~ This assessment must consider ~~assess~~ the effects of the development in relation to the landscape character and amenity value of the island and wider visual catchment.

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