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District Plan Hauraki Gulf Islands Section - Proposed 2006

(Notified version 2006)

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Hearing reports index

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

Topic:	Part 9 – Hazardous facilities and contaminated land and Appendix 8 – Lists for hazardous facilities and contaminated land
Report to:	The Hearing Panel
Author:	Deborah Kissick
Date:	25 September 2008
Group file:	314/274012

1.0 Introduction

This report considers submissions and further submissions ('submissions') that were received by the council in relation to Part 9 – Hazardous facilities and contaminated land and Appendix 8 – Lists for hazardous facilities and contaminated land 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 were publicly notified for further submission on 29 April 2007. The closing date for lodging further submissions was 28 May 2007.

This report has been prepared under section 42A of the Resource Management Act 1991 ('the RMA'), to assist the hearings panel to consider the submissions on Part 9 – Hazardous facilities and contaminated land and Appendix 8 – Lists for hazardous facilities and contaminated land. 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 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 hazardous facilities and contaminated land.

3.1 Part 9 - Hazardous facilities and contaminated land

Part 9 of the Plan introduces specific controls consisting of three elements:

• The Hazardous Facilities Consent Status Table ('HFCST') which prescribes maximum quantities of hazardous substances which can be used or stored within each land unit without a consent so long as the minimum performance standards are met.
• Minimum performance standards that apply to any facility using, storing or otherwise handling hazardous substances. These standards address:
  • Site drainage systems
  • Spill containment systems
  • Washdown areas
  • Underground storage tanks
  • Signage
• Controls on the remediation and redevelopment of contaminated and potentially contaminated land as a way of minimising the effects of site contamination and preventing further off site effects as a result of remediation.

3.2 Appendix 8 – Lists for hazardous facilities and contaminated land

Appendix 8 of the Plan supplements part 9 of the Plan by providing, a list of contaminated and potentially contaminated sites, the Ministry for the Environments Hazardous Activities and Industries List ('HAIL'), and a list of common substances and their hazard classifications.

The list of contaminated and potentially contaminated sites identifies those sites for which, based on the information available at the time of the Plan's development, the council believes a precautionary approach caution should be exercised in their remediation and redevelopment. As such, where testing has either not been undertaken, or has been undertaken and has identified contaminants in land, a resource consent will be required for redevelopment.

The HAIL is a compilation of activities and industries that are considered likely to cause land contamination resulting from hazardous substance use, storage or disposal. The fact that an activity or industry appears on the list does not mean that hazardous substances were used or stored on all sites occupied by that activity or industry, nor that a site of this sort will have hazardous substances present in the land. The list merely indicates that such activities and industries are more likely to use or store hazardous substances and therefore there is a greater probability of site contamination occurring than other uses or activities. Conversely, an activity or industry that does not appear on the list does not guarantee such a site will not be contaminated. The HAIL is therefore considered useful guidance material which in conjunction with site investigation aids in the identification of contaminated or potentially contaminated land. It also assists in identifying whether it would be prudent to carry out a site investigation to confirm the presence or absence of contamination prior to lodging an application to subdivide, redevelop or remediate the land.

The list of common substances and their hazard classification is included in Appendix 8 in order to make the assessment of activity status using the Hazardous Facilities Consent Status Table as easy as possible. The HFCST is based on the hazard classification, rather than the substances itself. This best practice approach has been made easier for the user by providing the hazard classifications for common substances as an appendix to the Plan rather than requiring users to refer to the regulations of the Hazardous Substances and New Organisms Act 2004.

4.0 Analysis of submissions

4.1 Introduction

This section of the report discusses the decisions requested in submissions about hazardous facilities and contaminated land 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 hazardous facilities and contaminated land 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', i.e. 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 General submissions about Part 9 – Hazardous facilities and contaminated land

Submissions dealt with in this section: 1596/11, 1596/12, 3061/56, 3061/57, 3061/58

4.2.1 Decisions requested

Submissions 1596/11 and 1596/12 are concerned with agrichemical trespass, or the travel of agrichemicals off target during the application or use. The submissions request two things:

• The inclusion of standards for the applications of agrichemicals
• A requirement for vegetative buffer zones for high intensity agricultural uses.

Submission 3061/56 is not entirely clear as to what decision is being requested or as to what it regards as cultural contamination. It is assumed that in intent it requests provisions which control the development and use of land which has been subject to such cultural and/or spiritual contamination

Submission 3061/57 seeks that consideration be given to the potential to improve the sustainability of existing activities and the undertaking of a sustainable management audit of such existing activities.

Submission 3061/58 opposes part 9 in its entirety until the matters raised by submissions 3061/56 and 3061/57 and addressed in 4.2.2.2and 4.2.2.3of this report have been adequately addressed. The submission does not request a particular decision.

4.2.2 Planner's analysis and recommendations

4.2.2.1 Submissions 1596/11 and 1596/12 - Controls on the application of agrichemicals

The provisions of part 9 do not deal with agrichemical trespass or seepage resulting from the application of agrichemicals which appears to be the primary concern of these submissions. Part 9 restricts its controls on agrichemicals primarily to their storage, mixing and disposal though controls which amongst other matters address:

• storage of hazardous substances
• site drainage systems
• spill containment systems; and
• washdown areas.

In contrast to the above, the application of agrichemicals is considered to be a discharge of contaminants and is therefore controlled by the Auckland Regional Council. The Proposed Auckland Regional Plan: Air Land and Water 'the regional plan', part 4A deals comprehensively with agrichemical application. The approach of the regional plan is:

"to permit the use of agrichemicals subject to conditions, including no drift beyond the boundary of the premises where application is occurring, and notification of potentially affected parties."

The regional plan acknowledges the importance of, and puts in place a number of requirements to ensure, best practice in agrichemical application. With regard to agrichemical spray drift, the regional plan requires an application for a discharge consent where there are significant adverse effects beyond the boundary of the premises where the discharge of agrichemicals to air is being undertaken including:

• noxious, dangerous, offensive or objectionable odour, dust, vapour, droplets, visible emissions or particulate;
• hazardous air pollutants that cause, or are likely to cause, significant adverse effects on human health ecosystems or property.

The use of a vegetative buffer zone where this is considered to be an appropriate way to avoid, remedy or mitigate the adverse effect arising from the discharge of agrichemicals is not obstructed by the regional plan requirements.

The controls under the regional plan are considered adequate. It is not considered necessary or appropriate to impose further controls in the district plan. Additional controls through the Plan would create potential for inconsistency between the Plan and regional plan as well as potential confusion for the public as to the responsibilities of the respective agencies and their obligations for monitoring and enforcement.

It may be appropriate for part 9 to include a reference to the provisions of the regional plan and its role with regard to the application of agrichemicals to ensure that the people referring to the district plan are aware of these controls. It is considered that this reference is best included in Clause 9.5.1.1 (explanation of the hazardous facilities consent table).

It is therefore recommended that the submissions be accepted in part.

4.2.2.2 Submission 3061/56 - cultural and/or spiritual contamination.

The hazardous facilities and contaminated land provisions contained in part 9 of the Plan do not attempt to deal with matters of cultural and spiritual contamination. Their primary purpose is to give effect to council's function as prescribed under section 31 of the Resource Management Act 1991 (RMA) of controlling the use, development or protection of land, including for the purpose of:

"(ii) the prevention or mitigation of any adverse effects of the storage, use disposal, or transportation of hazardous substances; and

(iia) the prevention to mitigation of any adverse effects of the development,  subdivision or use of contaminated land."

The RMA defines contaminant (in Section 2) as:

"Contaminant includes any substance (including gases, odorous compounds, liquids, solids and micro-organisms) or energy (excluding noise) or heat, that either by itself or in combination with the same, similar, or other substances, energy, or heat –

a. When discharged into water, changes or is likely to change the physical, chemical, or biological condition of water; or

b. When discharged onto or into land or into air, changes or is likely to change the physical, chemical, or biological condition of the land or air onto or into which it is discharged"

The RMA defines contaminated land as meaning land of one of the following kinds:

"(a) if there is an applicable national environmental standard on contaminants in soil, the land is more contaminated than the standard allows; or

(b) if there is no applicable national environmental standard on contaminants in soil, the land has a hazardous substance in or on it that—

(i) has significant adverse effects on the environment; or

(ii) is reasonably likely to have significant adverse effects on the environment"

It is clear from the above definitions that they do not cover cultural or spiritual contamination and therefore it is not considered appropriate for part 9 to address cultural or spiritual contamination. It is acknowledged that sites of particular cultural significance may warrant protection. These matters are dealt with under "Part 7 – heritage" of the Plan.

It is therefore recommended that the submission be rejected.

4.2.2.3 Submission 3061/57 - the requirement for a sustainable management audit of existing activities

The Plan cannot address existing activities where they have been legally established even if under the new provisions they would require a consent.

The council has limited ability to impose controls upon existing activities where their effects remain the same or similar in character, intensity, and scale as the effects that existed before the rule become operative. The council can, through non-statutory means (outside of the scope of the Plan) promote and encourage existing activities to engage in a process of improving their environmental performance and sustainability.

It is therefore recommended that the submission be rejected.

4.2.2.4 Submission 3061/58 – opposition to the Part 9 in its entirety

The matters raised in submissions 3061/56 and 3061/57 have been adequately addressed in sections 4.2.2.2and 4.2.2.3of this report.

It is therefore recommended that the submission be rejected.

Planner's recommendations about submissions relating to part 9 in general. That submissions 1596/11 and 1596/12 be accepted in part to the extent that they are met by amending the Plan to include reference to the regional plan's control of the application of agrichemicals by adding the following explanation to the explanation of clause 9.5.1.1 "... The cubic metre measures are at standard atmospheric temperature and pressure (STP). The application of agrichemicals is a discharge of contaminants and is controlled by the regional plan. Therefore, the regional plan should be referred to for any activity which involves the application of agrichemicals." That submissions 3061/56, 3061/57, 3061/58 be rejected.

4.3 Submission relating to clause 9.1 – Introduction

Submission dealt with in this section: 3521/72

4.3.1 Decisions requested

Submission 3521/72 seeks to amend the first bullet point at the end of clause 9.1 to refer specifically to the Auckland Regional Plan: Air, Land and Water and the Auckland Regional Policy Statement.

4.3.2 Planner's analysis and recommendations

Currently the wording of the first bullet point at the end of clause 9.1 is as follows:

"The relevant rules and provisions of the Regional Plan and Regional Policy Statement, administered by the Auckland Regional Council."

Alteration to the wording of the first bullet point under clause 9.1 of the Plan does not materially affect the provisions of the Plan and could provide clarity as to the particular regional plan which is being referred to. It is noted that there are several plans which could all be referred to as the 'regional plan' including:

• Proposed Auckland Regional Plan: Air, Land and Water
• Auckland Regional Plan: Coastal
• Auckland Regional Plan: Sediment Control
• Auckland Regional Plan: Farm, Dairy Discharges

It is considered unnecessary to specifically list the Auckland Regional Policy Statement, and the Proposed Auckland Regional Plan: Air, Land and Water within clause 9.1 as, over the life of the Plan, other regional documents may be added, and any of the above removed and consequential plan changes or variations would be required to keep the Plan updated. It is also noted that the currently proposed Air, Land and Water plan will change to an operative status also.

As stated in the first bullet point, it is intended that the relevant rules and provisions are adhered to and this provides for sufficient scope should the documents change over the life of the Plan.

It is therefore recommended that submission 3521/72 be rejected.

Planner's recommendations about submissions relating to clause 9.1 - Introduction That submission 3521/72 be rejected

4.4 Submission relating to clause 9.3.1 – Objective for the management of hazardous facilities

Submission dealt with in this section: 3521/73

4.4.1 Decisions requested

The submission seeks to amend the first sentence in the explanation in clause 9.3.1 to include "explosive"

4.4.2 Planner's analysis and recommendations

Reference to the potentially explosive nature of some hazardous substances was omitted in error. Although the risk of explosion can be limited, in some cases the results of an uncontrolled explosive event can be severe. It is considered appropriate and desirable for explicit reference to be made to the explosive potential of some hazardous substances. It is also consistent with the definition of hazardous substance contained in clause 9.7.

It is therefore recommended that the submission be accepted and the Plan be amended accordingly to acknowledge the potentially explosive nature of hazardous substances by amending the wording of the first sentence in the explanation in clause 9.3.1 to include "explosive" as follows:

"Hazardous substances can be toxic, flammable, highly reactive, corrosive, ecotoxic and explosive ."

Planner's recommendations relating to submissions about clause 9.3.1 – Objective for the management of hazardous facilities That submission 3521/73 be accepted and that the explanation of the clause 9.3.1 be amended in accordingly as set out in Appendix 3.

4.5 Submission relating to clause 9.4.1 – Hazardous facilities

Submission dealt with in this section: 3521/74

4.5.1 Decisions requested

Submission 3521/74 seeks to amend clause 9.4.1 to include that "The Plan uses a hazardous facilities consent status table to determine whether a resource consent is required for new or significantly modified hazardous facilities".

4.5.2 Planner's analysis and recommendations

Currently, the phrase referred to in the submission reads:

"The Plan uses a hazardous facilities consent status table to determine whether a resource consent is required for new or significantly increased hazardous facilities."

The submission requests that the word 'modified' replace the word 'increased' in clause 9.4.1 such that it reads: "The Plan uses a hazardous facilities consent status table to determine whether a resource consent is required for new or significantly modified hazardous facilities"

As stated in the submission, the use of the term 'increased' may be misleading in that it is not only the quantity of substances held on the site that is critical, but also the type and use of these substances. This means that use of different substances may result in a facility becoming more hazardous, even if the quantity of the new substance is less.

Quantity is only one factor used to determine whether existing use rights, under section 10a of the RMA, apply to an activity and consequently whether the activity should be subject to the Hazardous Facilities Consent Status Table to determine whether a land use consent will be required.

It is therefore recommended that the submissions be accepted and the Plan be amended accordingly with the word 'modified' replacing the word 'increased' in clause 9.4.1.

Planner's recommendations about submission relating to clause 9.4.1 – Hazardous facilities That submission 3521/74 be accepted and the Plan amended accordingly as set out in Appendix 3.

4.6 Submissions relating to clause 9.4.2 – Contaminated land

Submissions dealt with in this section: 1243/67, 3061/54

4.6.1 Decisions requested

Submission 1243/67 seeks clarification as to what is meant by "land" in clause 9.4.2 i.e. whether it is the whole of a title on which a contaminated site has been identified or whether it is the particular site that is contaminated.

Submission 3061/54 seeks clarification as to whether land, which is contaminated by the presence of asbestos materials, is considered to be contaminated under the Plan. The submission states that such sites should be treated as contaminated.

4.6.2 Planner's analysis and recommendations

4.6.2.1 Submission 1243/67 – clarification of the meaning of "land"

It is noted that land has not been specifically defined in the Plan, however the RMA defines contaminated land as follows:

"Contaminated land means land of one of the following kinds:

1. if there is an applicable national environmental standard on contaminants in soil, the land is more contaminated than the standard allows; or
2. if there is no applicable national environmental standard on contaminants in soil, the land has a hazardous substance in or on it that-
   1. i. has significant adverse effects on the environment; or
   2. ii. is reasonably likely to have significant adverse effects on the environment."

Clause 9.4.2 refers to "contaminated or potentially contaminated land". The use of the term 'land' rather than 'site' was intentional and refers to any portion of land, which is contaminated or potentially contaminated, and not necessarily to the whole of a land parcel (as defined by its certificate of title) on which the contamination or potential contamination has been identified.

It is considered that this approach is appropriate because it would be unreasonable to impose the controls on the entire site where the known extent of any contamination is limited and the contamination is able to be isolated. It is also considered that in order to capture land which escapes the formal definition of a 'site' including, for example, road reserves, this approach is most appropriate.

The use of the term 'land' accurately represents the intention of the Plan with regard to the identification of areas of contamination or potential contamination. It is also consistent with the RMA definition. However, additional wording could be inserted to clarify the use of the term 'land'. It is recommended that the following wording be inserted at the bottom of clause 9.4.2

"The application of these controls on 'land' rather than on a 'site' basis means that where the extent of contamination or potential contamination is known to be limited and able to be isolated, an unfair burden is not placed on the use or redevelopment of uncontaminated parts of the same site."

It is therefore recommended that the submission be accepted and that the above wording be inserted to clarify the intention of the Plan with respect to 'contaminated land'.

4.6.2.2 Submission 3061/54 – land containing asbestos material

The council considers land to be contaminated if site investigation shows that the land meets the definition of contaminated land contained in the RMA. As a guideline for identifying potentially contaminated land, the council uses the hazardous activities and industries list (HAIL) contained in Appendix 8 - Lists for hazardous facilities and contaminated land. The introductory paragraphs of Appendix 8 outline the following:

"The HAIL is a revision of the list of industrial activities first published in the Australian and New Zealand Environment and Conservation Council guidelines (1992). It is intended to identify most situations in New Zealand where hazardous substances could cause and in many cases have caused land contamination."

The HAIL identifies 52 specific land uses that can potentially cause contamination. The HAIL includes:

"6. Asbestos products production, use and disposal. Also sites with buildings containing  asbestos products known to be in a deteriorated condition."

As outlined in 6. of the HAIL above, land is considered contaminated or potentially contaminated if asbestos products are produced, used, or disposed of there. This also applies if the land contains any buildings with asbestos products known to be in a deteriorated condition.

The HAIL does not include the presence of asbestos products as being a reason to classify the land as contaminated or potentially contaminated and therefore a building containing asbestos products in a satisfactory condition does not classify as being contaminated or potentially contaminated.

The HAIL in Appendix 8 is taken directly from the recommendations from Ministry for the Environment (MfE) and it is considered that the guidelines adequately identify when the Plan considers the presence of asbestos material to result in the contamination or potential contamination of the land.

It is anticipated that this report clarifies for the submitter what is intended by this part and it is recommended that this submission be rejected to the extent that it seeks amendments to the Plan.

Planner's recommendations about submissions relating to clause 9.4.2 – contaminated land That submission 1243/67 be accepted and the Plan be amended accordingly as set out in Appendix 3. That submission 3061/54 be rejected.

4.7 Submission relating to clause 9.5 Rules – hazardous facilities

Submissions dealt with in this section: 1243/69, 3521/75

4.7.1 Decisions requested

Submission 1243/69 seeks to ensure that the rules in clause 9.5 for land units and settlement areas used for farming purposes align with the HSNO requirements. The submission raises particular concern regarding the handling of substances, which require "approved handler" certification.

Submission 3521/75 seeks to amend the first sentence in paragraph 2 in clause 9.5.1.1 to "Table 9.1 specifies the cumulative quantities of hazardous substances which can be used and stored for each hazard category. Larger quantities will require the specified type of consent".

4.7.2 Planner's analysis and recommendations

4.7.2.1 Submission 1243/69 – rules in alignment with HSNO requirements

The Hazardous Substances and New Organisms Act (1996) ('HSNO') requires that in order to purchase, transfer or use some hazardous substances, an individual must be certified as  'Approved Handler'. An approved handler is a person who is competent and certified to handle certain hazardous substances.

The requirement for an approved handler is something that is outside the Plan review process and is a requirement of HSNO which is administered by the Environmental Risk Management Authority ('ERMA').

Clause 9.5.1.1 explains:

"Table 9.1 specifies the cumulative quantities of hazardous substances which can be used and stored for each hazard category above which, the specified type of consent is required."

The approved handler certification process under HSNO requires handlers to demonstrate knowledge, experience and competence in handling the substances and preventing harm to people and the environment.

Table 9.1 is consistent with best practice promoted by MfE as it is based on the hazardous facilities screening procedure (HFSP) (Land Use Planning Guide for Hazardous Facilities, Ministry for the Environment, 2002).

It is considered that although there are specific requirements and procedures required under HSNO, such as the approved handler certification, the Plan and in particular Table 9.1 accurately represent and align with the requirements of HSNO.

It is therefore recommended that the submission be rejected to the extent that it seeks amendment to the Plan.

4.7.2.2 Submission 3521/75 – cumulative effects of hazardous substances

Currently, the first sentence of paragraph two in clause 9.5.1.1 reads:

"Table 9.1 specifies the cumulative quantities of hazardous substances which can be used and stored for each hazard category above which the specified type of consent is required."

The submission recommends a change to clarify the meaning of this sentence.

It is recognised that the wording of this sentence could more clearly portray the meaning of Table 9.1.

The submission suggests that the following wording be adopted:

"Table 9.1 specifies the cumulative quantities of hazardous substances which can be used and stored for each hazard category. Larger quantities will require the specified type of consent."

It is recommended that the submission be accepted in part and that the wording of this sentence be altered to read as follows:

"Table 9.1 specifies the cumulative quantities of hazardous substances which can be used and stored for each hazard category and the corresponding activity status."

Planner's recommendations about submissions relating to clause 9.5 Rules – hazardous facilities That submission 3521/75 be accepted in part and the Plan amended accordingly as set out in Appendix 3. That submission 1243/69 be rejected.

4.8 Submission relating to Table 9.1- Hazardous facilities consent status

Submission dealt with in this section: 2106/7, 3521/76, 3521/77, 3521/78

4.8.1 Decisions requested

Submission 2106/7 seeks to amend table 9.1 Hazardous facilities consent status, by amending two entries in the first row of the 'Eco-toxic' category (HSNO subclass 9.1A-9.4A), under the 'Group C' column, to change 't ⁷' to 't ⁴'.

Submission 3521/76 seeks to amend table 9.1 to remove reference to Matiatia from Group A.

Submission 3521/77 seeks to amend the land units under Group C to: Land units: landform 1, 2, 4, 6 and 7; island residential 1 and 2; commercial 4; recreation 1, 2 and 3, conservation, Pakatoa, Rotoroa. Settlement areas: all areas not otherwise listed under group A or B.

Submission 3521/78 seek to amend the quantities in table 9.1 as appropriate, several of the quantities in the table are missing the < or > (i.e 'less than' or 'greater than' symbols)

4.8.2 Planner's analysis and recommendations

4.8.2.1 Submission 2106/7 – amendment to the hazardous facilities consent status

The submission from the Auckland City Council identifies an error in 'Group C' of the table for 'Eco-toxic' substances. The use of the super-script '7' was in error. The correct notation is to include a super-script '4', which refers to note 4 of table 9.1 which reads:

"The second figure is the reduced threshold applying in the following land units and settlement areas:

• landforms 1, 2, 4, 6 and 7, and in the conservation land unit
• Tryphena reserve and coastal margin area, Medland and Claris dune and wetland conservation areas, Okupu reserve and dune protection area."

It is therefore recommended that the submission be accepted and that the table be amended accordingly to remove the 7 and replace it with a 4 for the first row of figures in 'Group C' which are refer to HSNO subclass 9.1A-9.4A

4.8.2.2 Submission 3521/76 – correction of Matiatia group location

Currently, the table refers to Matiatia as part of both Groups A and B. The submission requests that table 9.1 be amended to remove reference to Matiatia from Group A in order to ensure that Matiatia is referred to only in Group B. The reference to Matiatia in both Groups A and B was in error and it is intended that Matiatia be included in Group B.

It is therefore recommended that the submission be accepted and the Plan be amended accordingly such that the reference to Matiatia from as a Group A land unit be removed, so that the description of Group A reads as follows:

"Group A Land units: commercial 5, 6 and 7; Matiatia

Settlement areas: Medlands quarry area"

4.8.2.3 Submission 3521/77 – amendment to 'Group C' definition

The description of Group C currently reads:

" Group C Land units: landform 1, 2, 4, 6, and 7; island residential 1 and 2; commercial  4; recreation 1, 2 and 3, conservation, Pakatoa, Rotoroa

Settlement areas: all areas not otherwise listed under group B or C"

The reference to "all other areas not otherwise listed under group B or C" is an error and should state "All other areas not otherwise listed under group A or B".

It is therefore recommended that this submission be accepted and the Plan be amended such that the description of Group C reads:

" Group C Land units: landform 1, 2, 4, 6, and 7; island residential 1 and 2; commercial 4; recreation 1, 2 and 3, conservation, Pakatoa, Rotoroa

Settlement areas: all areas not otherwise listed under group A or B"

4.8.2.4 Submission 3521/78 – misplaced 'greater than' and 'less than' symbols

The submission highlights the absence of 'less than' (<) and 'greater than' (>) symbols within the table.

The following four instances have been identified:

1. Flammable (gases) (aerosols) (Class 2), permitted activity status for all other non-hazardous substances in Group A currently reads "<5t/10,000m ³" and should read "<5t/ < 10,000m ³­"
2. Flammable (solids) (Class 4.1), permitted activity status for substances in Group A currently reads "3t" and should read " < 3t"
3. Explosive (Class 1.3), discretionary activity level for substances in Group B currently reads "1t" and should read " > 1t"
4. Explosive (Class 1. 2/1.3 with 1.1), discretionary activity status for substances in Group B currently reads "0.04t" and should read " > 0.04t"

These omissions were made in error and it is therefore recommended that the submission be accepted and that the above changes be made to correct table 9.1

Planner's recommendations about submissions relating to Table 9.1 - Hazardous facilities consent status That submissions 2016/7, 3521/76, 3521/77 and 3521/78 be accepted and the Plan be amended accordingly as set out in Appendix 3.

4.9 Submissions relating to clause 9.5.1.3 – Exemptions for facilities for disposing of solids from septic tanks and other wastewater treatment and disposal systems

Submission dealt with in this section: 2649/6, 3061/55, 3521/79, 3521/80,

4.9.1 Decisions requested

Submission 2649/6 seeks alteration of the wording of clause 9.5.1.3 so that it is clear the septic tank wastes are a hazardous substance, and treatment and disposal facilities need to operate to the minimum performance standards laid out in clause 9.5.5.

Submission 3061/55 seeks that septic tank treatment facilities should not be exempt from requiring a consent for hazardous facilities under clause 9.5.1.3.

Submission 3521/79 seeks to amend clause 9.5.1.3 to clearly state whether clause 9.5.1.3(2) refers to on-site septic tanks or not.

Submissions 3521/80 seeks to amend the reference, in clause 9.5.1.3, from HASNO to HSNO.

4.9.2 Planner's analysis and recommendations

4.9.2.1 Submission 2649/6 – clarity of wording for clause 9.5.1.3

Clause 9.5.1.3 exempts the treatment of solids from septic tanks and other wastewater and treatment disposal systems from table 9.1. The explanation in clause 9.5.1.3 acknowledges that such solids may contain substances defined as hazardous under HSNO and the Plan. However, it is not considered necessary to address this under part 9 of the Plan as the council's bylaw and the ARC requirements are sufficient.

The exemption in clause 9.5.1.3(a) is appropriate and it is therefore recommended that submission 2649/6 be rejected.

4.9.2.2 Submission 3061/55 – septic tank treatment facilities

The submitter seeks that septic tank treatment facilities should not be exempt from requiring a consent for hazardous facilities under clause 9.5.1As discussed in section 4.9.2.1above, it is considered that the exemptions are appropriate.

As set out in the 'explanation' section of clause 9.5.1.3, while it is recognised that the solids from septic tanks may contain substances that are defined as hazardous substances, the treatment and disposal of these substances is a matter controlled by the council's bylaw and the Auckland Regional Council. The bylaw and ARC requirements are sufficient to avoid, remedy or mitigate any adverse effects of the treatment and disposal of solids from wastewater systems. It is therefore it is not considered necessary for the part 9 to further address this.

It is therefore recommended that the submission be rejected.

4.9.2.3 Submission 3521/79 – reference to on-site, domestic septic tanks

The submission requests that clarity be given as to whether clause 9.5.1.3(2) applies to on-site septic tanks. It is recognised that as currently worded clause 9.5.1.3(2) could apply to domestic septic tanks as the daily use of a domestic septic tank could be considered to be the storage of septic tank wastes.

It is not intended that the day to day use and function of a septic tank, be subject to the requirements of table 9.1 or clause 9.5.5. It is considered that the Council's Bylaw (Part 29 Waiheke Wastewater) together with the Proposed Auckland Regional Plan Air, Land and Water clearly outline the requirements for the installation, maintenance and cleaning of septic tanks. It is considered necessary however, to clarify clause 9.5.1.3(2) to state that the regular use of septic tanks are considered to be exempt from table 9.1 and clause 9.5.5. The following wording is recommended:

"The storage of septic tank waste is not exempt from table 9.1 and must comply with the minimum performance standards in clause 9.5.5. The day to day, operational use of septic tanks is not considered as storage for the purpose of this clause."

It is recommended that the submission be accepted and that the additional wording recommended above be inserted.

4.9.2.4 Submission 3521/80 – clarification of HASNO to HSNO

The submission correctly identifies an error in the explanation of clause 9.5.1.3 which refers to HASNO. The explanation should read HSNO in reference to the Hazardous Substances and New Organisms Act 1996.

It is therefore recommended that the submission be accepted and the Plan be amended accordingly such that the acronym "...HASNO..." in the first sentence of the explanation of clause 9.5.1.3 be replaced with "... HSNO ..."

Planner's recommendations about submissions relating to clause 9.5.1.3 – Exemptions for facilities for disposing of solids from septic tanks and other wastewater treatment and disposal systems That submissions 3521/79 and 3521/80 be accepted and the Plan be amended accordingly as set out in Appendix 3.   That submissions 2649/6 and 3061/55 be rejected.

4.10 Submission relating to clause 9.5.5 – Minimum performance standards for hazardous facilities

Submission dealt with in this section: 1093/19, 1093/20, 3521/81, 3521/82

4.10.1 Decisions requested

Submission 1093/19 seeks to amend clause 9.5.5.1 to exclude winegrowers certified with current GROWSAFE certificates from the requirements to have an appropriate spill containment system where hazardous substance spill may occur.

Submission 1093/20 seeks to amend clause 9.5.5.3 to exclude winegrowers certified with current GROWSAFE certificates from the requirements relating to washdown areas.

Submission 3521/81 seeks to amend clause 9.5.5 to read:

"The minimum performance standards in clauses 9.5.5.1 to 9.5.5.5 apply to all hazardous facilities in addition to the requirements imposed by the regulations of the HSNO Act".

Submission 3521/82 seeks that to amend clause 9.5.5.1 to add the following wording:

"Adherence to the specifications provided in the Auckland Regional Council Pollution Fact Sheet UPC03 – Chemical Storage is deemed to comply with this requirement."

4.10.2 Planner's analysis and recommendations

4.10.2.1 Submission 3521/81 – performance standards in addition to HSNO regulations

Currently, clause 9.5.5 reads:

"The minimum performance standards in clauses 9.5.5.1 to 9.5.5.5 apply to all hazardous facilities."

The submission requests clause 9.5.5 should be amended to clarify that these performance standards are in addition to the performance standards required in the relevant HSNO regulations. The submission suggests the following additional wording to clause 9.5.5:

"The minimum performance standards in clauses 9.5.5.1 to 9.5.5.5 apply to all hazardous facilities in addition to the requirements imposed by the regulations of the HSNO Act ."

It is recognised that while the Plan may specify additional controls considered necessary to protect the environment from the use, storage or disposal from hazardous substances, this makes no departure from any regulations under HSNO. It is considered that reference to HSNO regulations is advantageous in order to remind Plan users to comply with relevant HSNO regulations. It is therefore recommended that submission 3521/81 be accepted in part and the Plan be amended accordingly such that the clause 9.5.5 reads:

"The minimum performance standards in clauses 9.5.5.1 to 9.5.5.5 apply to all hazardous facilities. Note: Additional requirements may be imposed by the regulations of the Hazardous Substances and New Organisms Act 1996. "

4.10.2.2 Submission 3521/82 – inclusion of the Pollution Fact Sheet UPC03

The submitter, Auckland Regional Council, is concerned that clause 9.5.5.1 relating to spill containment systems does not provide sufficient guidance and may result in non-compliance with the Proposed Auckland Regional Plan: Air, Land and Water. The submitter suggests that reference to the 'Pollution Fact Sheet UPC03 – Chemical Storage' could be incorporated into the clause to provide clarity.

Pollution Fact Sheet UPC03 provides guidance on chemical storage to users of hazardous substances. While the 'fact sheet' could provide useful guidance it is considered that the wording and accuracy of the document are such that it is not suitable reference document for inclusion within the Plan.

It is also noted that there are legal difficulties in using this fact sheet as it has not been 'incorporated by reference' under part 3, schedule 1 of the RMA.

It is therefore recommended that the submission be rejected.

4.10.2.3 Submissions 1093/19 and 1093/20 – wine growers exemptions

The submitter, New Zealand Winegrowers seeks that the winegrowers, certified with current GROWSAFE certificates be excluded from the requirements of clause 9.5.5.1 – spill containment system and clause 9.5.5.3 – washdown areas.

Clauses 9.5.5.1 to 9.5.5.5 of the Plan outline the minimum performance standards which apply to all hazardous facilities. The purpose of the performance standards as outlined in the explanation under clause 9.5.5 is to:

"...reduce contamination with hazardous substances resulting from the accidental or deliberate discharge of such substances to land or water."

The performance standards also provide guidance on the required standard for new facilities, in order to minimise the number of spillages of hazardous substances and to ensure that the impact of spillages that do occur have less severe adverse effects. Clause 9.5.5.1 requires a spill containment system to be in place on any part of a site where the spillage of substances could occur. Clause 9.5.5.3 requires any area where potentially contaminated vehicles, equipment or containers, are washed, to be designed, constructed and managed to prevent any contaminated water discharging into or onto land or water.

The GROWSAFE training programme and certification is based on compliance with the New Zealand Standard Management of Agrichemicals (NZS 8409:2004) which is an approved (by the Environmental Risk Management Agency (ERMA)) Code of Practice pursuant to sections 78 and 79 of the Hazardous Substances and New Organisms Act (1996) (HSNO). GROWSAFE provides practical and specific guidance on the safe, responsible and effective management of agrichemicals.

Although Codes of Practice, which are approved by ERMA, do not have the same effect as legislation, adherence with them can be used as a defence against prosecution under the Hazardous Substances and New Organisms Act 1996.

The submissions requests that GROWSAFE certified winegrowers be excluded from the requirement to provide spill containment systems and wash down areas.

The submissions takes the position that the provisions of the Plan, particularly the requirement for wash-down areas are overly onerous for the viticulture industry which considers itself to be environmentally responsible, has the benefit of a credible industry training programme (GROWSAFE) and suffers some practical restraints such as access to reticulated water for use in 'wash down areas'.

The submissions seeks to grant winegrowers with appropriate industry training (GROWSAFE) special status through their exemption from the minimum performance standards requiring the provision of spill containment systems and wash down areas.

There are three matters for consideration:

• whether it is necessary or desirable to provide exemption for a specific sub-sector of hazardous substance users;
• whether it is necessary or desirable to make reference by proxy to a New Zealand standard (NZS 8409:2004) by reference to an industry training programme (GROWSAFE) based on that standard; and
• whether adherence to the Plan provisions imposes such significant additional costs on winegrowers so as to be unreasonable given the assumption of adherence to NZS 8409:2004 (through GROWSAFE certification).

Provision of exemptions

The provision of exemptions from the minimum performance standards for a specific sub-sector of hazardous substance users has the effect of their operations not being scrutinised against the same standards as other users of hazardous substances. In addition, the complexity created by the provision of exemptions means that council staff would need to be familiar with the alternative standards as well as the provisions of the Plan to ensure that they are being met and the objectives of the Plan are being met. These factors may contribute to additional implementation costs and less clarity in interpretation of the Plan for the public and other sectors not granted such an exemption.

Reference to a standard by proxy

GROWSAFE certification is an endorsement upon completion of a training programme that the certified person has met the assessment requirements of the New Zealand Agrichemical Education Trust including the ability to demonstrate knowledge of the HSNO Act and NZS 8409:2004 for the use of agrichemicals. GROWSAFE certification does not necessarily provide for the on-site inspection or auditing of facilities or practices to ensure compliance with the regulation or standards against which the training programme has been developed.

Direct referral to the NZS8409:2004 would not suffer from this problem. However council officers would then be required to become sufficiently familiar with the contents of the standard such that compliance could be monitored and enforced. Direct reference to a particular standard could result in the requirement for a plan change should the standard change throughout the life of the Plan. It is also noted that this document has not been 'incorporated by reference' in accordance with part 3, schedule 1 of the RMA..

Land use controls are most often applicable at the establishment of a new facility. Where the holding of a training certificate is grounds to exempt an applicant from compliance with any Plan provisions, if this affects the consent status of the activity then the continued holding of such a certificate by any future owner or operator would become essential. However, the council may not necessarily become aware of a change of owner or operator and the potential necessity to apply for a land use consent in the absence of a certificate holder is unlikely to be triggered.

Additional costs to winegrowers

Spill containment

NZS 8409:2004 states under 4.2.2.2 – Specification that:

"agrichemicals shall only be stored in buildings and places suitable for the purpose taking into account:

a) Fire protection;

b) Amounts of agrichemicals stored;

c) Fire extinguishers;

d) Moisture control;

e) Ventilation;

f) Spill containment;

g) Access to the store (security);

h) Signage and placating"

A note is also included which states that "agrichemical storage buildings may also be required to meet local authority requirements."

Clause 9.5.5.1 of the Plan states that "any part of the site where a hazardous substance spill may occur must have an appropriate spill containment system" and continues to describe a number of expected characteristics of a spill containment system:

"1. Constructed from impervious materials that are resistant to the hazardous substances involved and, for pooling hazardous substances:

1. Able to contain the maximum volume of the largest tank used, plus an allowance for stormwater or water for fire-fighting.
2. Or where drums or other smaller containers are used, able to contain half of the maximum volume of substances stored.

2. Designed, constructed and managed so that any spill or release of any hazardous substance, and any stormwater that may enter and become contaminated in the spill containment system, is prevented from discharging into or onto land, ground water, any water body or potable water supply.

Suitable means of compliance include graded floors and surfaces, bunding, roofing, sumps, fire water catchments, overfill protection and alarms, and similar systems."

Wash down areas

NZS 8409:2004 contains specific requirements regarding "mixing sites" under 5.3.2.1:

"Including the following:

(a) Containers – all empty containers shall be triple-rinsed before being securely stored;

Disposal of washings – Washings from empty containers or application equipment shall be contained and disposed of by methods consistent with this Standard (refer to Appendix S)";

In referring to appendix S washings from empty containers or application equipment are considered as agrichemicals. In addition to numerous specific controls and guidance, at all times appendix S ensures that:

• no run-off occurs and chemicals do not enter surface waters including streams or ponds; and
• chemicals do not enter ground water, field drains, septic tanks o sewerage systems.

Clause 9.5.5.3 of the Plan states:

"Any area where the washing of vehicles, equipment or containers that are or may have become contaminated with hazardous substances takes place, must be designed, constructed and managed to prevent any contaminated wash water from discharging into or onto land or water (including groundwater, stormwater and potable water supplies).

Suitable means of compliance include roofing, sloped pavements, interceptor drains, containment and diversion valves, oil-water separators, sumps and similar systems."

Conclusion

The requirement for appropriate spill containment systems and wash down areas in the Plan are not considered to impose a significant additional requirement on winegrowers certified under GROWSAFE and therefore acting in a manner consistent with NZS 8409:2004. A GROWSAFE certified winegrower will by compliance with NZS 8409:2004, in almost all cases be in compliance with the provisions of the Plan and therefore it is recommended that the submission be rejected.

Planner's recommendations about submissions relating to clause 9.5.5 That submission 3521/81 be accepted in part and that the Plan be amended accordingly as set out in Appendix 3. That submissions 1093/19, 1093/20, 3521/82 be rejected.

4.11 Submission relating to clauses 9.5.6 and 9.5.7 – discretionary activities

Submissions dealt with in this section: 1093/21, 3521/83

4.11.1 Decisions requested

Submission 1093/21 seeks to amend clause 9.5.7 (assessment criteria for discretionary activities) by adding a new point 8:

"Compliance with any relevant codes of practice, and in particular, certification pursuant to the GROWSAFE Training Programme and approved agrichemical handler test certification."

Submission 3521/83 seeks to amend clause 9.5.6(7) to read as follows or words to like effect:

"Measures used to address the risks presented by cumulative and/or synergistic effects of different hazardous substances".

4.11.2 Planner's analysis and recommendations

4.11.2.1 Submission 1093/21 – further discretionary criteria

The submitter seeks to insert an additional assessment criterion for discretionary activities to clause 9.5.7. The submitter suggests the following wording as being an appropriate addition to the clause:

"Compliance with any relevant codes of practice, and in particular, certification pursuant to the GROWSAFE Training Programme and approved agrichemical handler test certification".

The submitter (NZ Winegrowers) considered that winegrowers undertake appropriate industry training (GROWSAFE) and have adopted a "responsible, self-regulatory approach to sustainable viticulture/land use practise and adhere to accepted New Zealand standards."

Whilst it is recognised that this approach to land use in relation to the use and storage of hazardous substances is commendable, the provisions of the Plan are set out to ensure a uniform and consistent approach for all landowners.

Individual landowners are responsible for ensuring that they obtain the required clearance/qualification to use and store hazardous substances in accordance with all other legislation and standards in New Zealand.

It is therefore recommended that the submission be rejected.

4.11.2.2 Submission 3521/83 – amendment to clause 9.5.6(7)

Clause 9.5.6(7) currently reads:

"Measure used to address any risk of cumulative or synergistic effects of different substances, including cumulative risks".

The intention of this clause is to enable council to consider the risks presented where substances are located together. It is recognised that amendment should be made in order to clarify the meaning of this clause for Plan users.

The submission proposes the following wording:

"Measure used to address any the risk s presented by of cumulative and/ or synergistic effects of different hazardous substances , including cumulative risks ".

It is considered that this wording clarifies the intention of the clause and it is therefore recommended that the submission be accepted.

Planner's recommendations about submissions relating to clauses 9.5.6 and 9.5.7 – discretionary activities That submission 3521/83 be accepted and the Plan be amended in accordingly as set out in Appendix 3. That submission 1093/21 be rejected.

4.12 Submissions about clause 9.6 Rules – contaminated land

Submissions dealt with in this section: 1243/68, 2649/5, 3061/53

4.12.1 Decisions requested

Submission 1243/68 seeks that in clause 9.6, it only be the contaminated part of a piece of land, which is subject to contaminated land controls.

Submission 2649/5 seeks redefinition of contaminated land to cover land treated as a septage dump without any proper screening or treatment processes in place.

Submission 3061/53 seeks clarification from clause 9.6.1 as to whether land containing the presence of asbestos material is considered contaminated.

4.12.2 Planner's analysis and recommendations

4.12.2.1 Submission 1243/68 – contaminated land

As discussed in section 4.6.2.1above, the Plan uses "contaminated or potentially contaminated land" to refer to any portion of land, which is contaminated or potentially contaminated, and not to the whole of a land parcel (as defined by its certificate of title) on which the contamination or potential contamination has been identified.

It is recommended in section 4.6.2.1of this report that additional wording be inserted into clause 9.4.2 to clarify the use of the term land. The recommended wording is as follows:

"The application of these controls on 'land' rather than on a 'site' basis means that where the extent of contamination or potential contamination is known to be limited and able to be isolated, an unfair burden is not placed on the use or redevelopment of uncontaminated parts of the same site."

It is noted that most of the sites identified in the Plan as being either contaminated or potentially contaminated have not been fully investigated to establish the exact extent of the contamination and it is therefore considered appropriate to classify the entire site as contaminated.

Should thorough investigation be undertaken which indicates that only part of the subject site is subject to contamination, it is considered that the classification of the site could be altered accordingly to represent the actual land that is contaminated, however this would require a plan change.

Therefore, it is considered that the use of 'land' within Part 9 and in particular, clause 9.6 accurately represents the intention of the council to ensure that only contaminated or potentially contaminated land is subject to the contaminated land controls and that it is not intended for these controls to apply to an entire site unnecessarily.

It is therefore recommended that this submission be rejected as it is considered that sufficient clarity with respect to this matter has been made earlier in the report (under section 4.6.2.1) and the recommended changes provide additional clarity to this clause.

4.12.2.2 Submission 2649/5 – dumping of septic tank waste

Submission 2649/5 seeks, within clause 9.6.1, to redefine contaminated land to include land that is treated as a septage dump without any proper screening or treatment processes in place.

As discussed in 4.6.2.1above, the definition of contaminated land used in the Plan is the same definition as in the Resource Management Act 1991 (RMA) that being:

" Contaminated land means land of 1 of the following kinds:

(a) if there is an applicable national environmental standard on contaminants in soil, the land is more contaminated than the standard allows; or

(b) if there is no applicable national environmental standard on contaminants in soil, the land has a hazardous substance in or on it that—

(i) has significant adverse effects on the environment; or

(ii) is reasonably likely to have significant adverse effects on the environment.

To ensure consistency of definitions and minimise the potential for confusion is considered appropriate to use the RMA definition of contaminated land without modification.

The submitter raises concern about the sites which have been used to dispose of septage waste, without the necessary screening and treatment processes in place.

As a guideline for identifying potentially contaminated land, the council uses the hazardous activities and industries list (HAIL) contained in appendix 8 - Lists for hazardous facilities and contaminated land. As noted earlier in this report, HAIL lists 52 specific land uses that can potentially cause contamination.

HAIL includes:

"Waste storage, treatment and/or disposal including land disposal of wastes, but not the use of biosolids as soil conditioners."

Septage disposal to land is considered as the disposal of waste and therefore the council has sufficient grounds to regard the site used for this purpose as potentially contaminated.

The discharge of contaminants to ground is controlled under the provisions of the Auckland Regional Plan: Air Land and Water. Failure to adhere with these rules, or the conditions of a resource consent is an offence against the Resource Management Act 1991 and should be referred to the regional council for enforcement action.

It is considered that the Plan, and in particular clause 9.6.1, sufficiently outlines what is considered to be 'contaminated land' and therefore it is recommended that the submission be rejected.

4.12.2.3 Submission 3061/53 – asbestos materials

As outlined in section 4.6.2.2above, as a guideline for identifying potentially contaminated land, the council uses the hazardous activities and industries list (HAIL) contained in Appendix 8 - Lists for hazardous facilities and contaminated land.

The HAIL identifies 52 specific land uses that can potentially cause contamination. This includes:

"6. Asbestos products production, use and disposal. Also sites with buildings containing  asbestos products known to be in a deteriorated condition."

As outlined in 6. of the HAIL above, land is considered contaminated or potentially contaminated if asbestos products are produced, used, or disposed of there. This also applies if the land contains any buildings with asbestos products known to be in a deteriorated condition.

The submitter raises the issue that when buildings, containing asbestos cladding or roofing, are replaced, there is no facility for the disposal of asbestos material on the island. The submitter also raises that it is prohibited to remove the materials from the island, which can result in the burial of these products. The burial of this material would be considered as disposal and therefore, as stated in 6 of the HAIL, it is considered that this would cause potential contamination of the land.

The HAIL list in Appendix 8 is taken directly from the recommendations from Ministry for the Environment (MfE) and it is considered that the guidelines adequately identify when the Plan considers the presence of asbestos material to result in the contamination or potential contamination of the land.

It is anticipated that this report clarifies for the submitter what is intended by this part and it is recommended that this submission be rejected.

Planner's recommendations about submissions relating to clause 9.6 Rules – contaminated land That submissions 1243/68, 2649/5, 3061/53 be rejected.

4.13 Submissions about clause 3.0 (Appendix 8) List of contaminated and potentially contaminated land

Submissions dealt with in this section: 1223/1, 1223/2, 1223/5

4.13.1 Decisions requested

Submission 1223/1 seeks that the title of clause 3.0 of Appendix 8 be amended to "List of contaminated land"

Submission 1223/2 seeks to delete the words "or may have" from the first sentence of clause 3.0

Submission 1223/5 requests that Auckland City arrange and pay for an inspection to justify their identification of any land they believe to be potentially contaminated.

4.13.2 Planner's analysis and recommendations

4.13.2.1 Submissions 1223/1 and 1223/2– amendments to clause 3.0

The submitters seek amendments to the clause to remove the reference to potentially contaminated land from Appendix 8. Submission 1223/1 seeks amendment to the title of the clause while submission 1223/2 seeks amendment to the first sentence.

The council has duty under section 31 of the Resource Management Act to "control any actual or potential effects of the use, development or protection of land including... (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". In order to address this obligation, the Plan identifies sites, which are potentially contaminated in accordance with the HAIL (hazardous activities and industries list). It is acknowledged in the Plan (clause 9.4.2) that not all contaminated land on the island has been identified and that the list contained in Appendix 8 has been complied from the information contained in council's databases and in particular, in the GIS (geographic information system).

It is therefore recommended that the reference within the Plan to potentially contaminated sites be retained and that submissions 1223/1 and 1223/2 be rejected.

4.13.2.2 Submission 1223/5 – inspections for potentially contaminated sites

The submitter seeks that the council arrange and pay for an inspection to justify their identification of any land listed as potentially contaminated.

The duty of the council, as discussed in section 4.13.2.1 above, is to control the potential effects on land from the use, storage, disposal or transportation of hazardous substances and prevent or mitigate any adverse effects of the development of contaminated land. The council should take a precautionary approach to indentify those sites where historical and/or current activity have a reasonable likelihood of resulting in contamination. This precautionary approach does not require specific investigation of all sites.

It is therefore considered that the submission be rejected.

Planner's recommendations about submissions relating to clause 3.0 (Appendix 8) That submissions 1223/1, 1223/2, 1223/5 be rejected.

4.14 Submissions about clause 3.1 (Appendix 8) List for inner islands

Submissions dealt with in this section: 1223/3, 1223/4, 1223/6, 2102/2

4.14.1 Decisions requested

Submission 1223/3 seeks the removal of clause 3.1 (including any reference to it on the maps).

Submission 1223/4 seeks that clause 3.1 is rewritten in order to show only identified contaminated land.

Submission 1223/6 seeks to show on the Plan, the date a property has been cleared of the tag "contaminated land" and continually update by amending records accordingly.

Submission 2102/2 seeks that clause 3.1 be amended by adding an additional row immediately after the entry for 8 Tahi Road, with the following information entered into the appropriate columns:

"Tahi Road, 10, Waiheke, CT 1333/46, Lot 8 DP 14355, not investigated"

4.14.2 Planner's analysis and recommendations

4.14.2.1 Submission 1223/3 – removal of clause 3.1

The submitter seeks that clause 3.1 (and references on the maps) be removed from the Plan.

As discussed in sections 4.13.2.1and 4.13.2.2above, the council has a duty under the RMA to control any actual or potential effects of the use, development or protection of contaminated land. It is considered that in order to fulfil this obligation it is necessary for the council to produce the list of sites contained within clause 3.1. Exclusion of the list and removal of the visual interpretation of this information from the maps would result in uncertainty for landowners and prospective landowners. It is considered that by including this information in the Plan, the council is providing vital information to the public in a clear and concise manner.

It is therefore recommended that the submission be rejected and that clause 3.1 be retained in its entirety.

4.14.2.2 Submission 1223/4 – rewrite of clause 3.1

The submitter seeks that clause 3.1 be rewritten in order to identify land that is confirmed and proven to be contaminated.

The list in clause 3.1 currently contains a large amount of land, which is considered potentially contaminated, due to the past or current use of that land. It is considered that in order to fulfil the obligations of a territorial authority under the RMA, the council must make this information public.

The list has been compiled with the information the council holds in relation to this land in accordance with the HAIL, as discussed in section 4.13.2.1above and it is considered that the identification and inclusion within clause 3.1, of land that is both proven to be contaminated and potentially contaminated provides the public with as much information as is known about the nature of the land.

While it is recognised in the Plan that not all of the potentially contaminated land has been identified, it is considered that all the sites which the council has knowledge of are included.

It is therefore recommended that the submission be rejected and that the list at clause 3.1 remain in the Plan.

4.14.2.3 Submission 1223/6 – show the date a property has been 'cleared' of the tag of "contaminated land".

The submitter seeks that the Plan indicate the date on which properties are cleared of being 'contaminated land'.

Currently the process with regard to the remediation of a contaminated property is that the decontamination report/certificate would be placed on the site file for the property but the contaminated land label in the Plan would remain on the land. It is not considered appropriate to include the date of clean up for each site as this would require a plan change each time a property was remediated and considered 'clean'.

From time to time it may be appropriate for the council to undertake a plan change so that the list of contaminated land identified in clause 3.0 of appendix 8, and shown on the planning maps, can be updated. The updating could include:

• Removal of properties which have been investigated and have been proven not to be contaminated;
• Removal of properties which have been remediated (though in some cases the type of remediation may still warrant careful ongoing management and it may still be desirable to retain the land on the list);
• Addition of newly identified land.

As set out in clause 9.6.3, a restricted discretionary activity consent is required to remediate contaminated land or to redevelop contaminated or potentially contaminated land. However, the Plan provides that clause 9.6.3 does not apply where land identified in clause 3.0 of appendix 8 has been investigated and proven not to be contaminated or has been remediated to a level which is safe for the intended use. This exception may address some of the submitters' concerns which have resulted in their request that the list of contaminated land be continually updated.

It is therefore recommended that this submission be rejected.

4.14.2.4 Submission 2102/2 – inclusion of 10 Tahi Road in clause 3.1

The submission, from the Auckland City Council, seeks to correct an error in the list of contaminated and potentially contaminated land for the inner islands contained in clause 3.1.

The planning maps, and in particular sheet 10, map no. 2 clearly identify that 10 Tahi Road is land which is subject to contamination or potential contamination, however this information was not recorded in the list of land in clause 3.1.

It is therefore recommended that in order to accurately represent the nature of the site at 10 Tahi Road, the submission be accepted and the following information be added to the list in clause 3.1:

Street or location	Street no.	Island	Certificate of title	Legal description	Status as at June 2006
Tahi Road	10	Waiheke	CT 1333/46	Lot 8 DP14355	not investigated

Planner's recommendations about submissions relating to clause 3.1 (Appendix 8) That submission 2102/2 be accepted and the Plan be amended accordingly as set out in Appendix 3. That submissions 1223/3, 1223/4, 1223/6 be rejected.

4.15 Submission about clause 4.0 (Appendix 8) – List of classifications for common substances

Submission dealt with in this section: 2102/1

4.15.1 Decisions requested

Submission 2102/1 seeks that the first sentence of clause 4.0 be amended to read 'table 9.1' instead of 'table 8.1'

4.15.2 Planner's analysis and recommendations

The submission, from the Auckland City Council, seeks to amend an error in clause 4.0 which refers to the hazardous facilities consent status table, contained within Part 9 of the Plan.

Clause 4.0 incorrectly refers to the table as 'table 8.1' when clearly the hazardous facilities consent status table is 'table 9.1'.

It is recommended that the submission be accepted and that clause 4.0 be amended to read:

"...This information is to assist users in applying table 8 9.1 Hazardous facilities consent status".

Planner's recommendations about submission relating to clause 4.0 (Appendix 8) That submission 2102/1 be accepted and the Plan be amended according to Appendix 3.

4.16 Submission about specific properties contained in Appendix 8

Submission dealt with in this section: 2663/1 and 2109/1

4.16.1 Decisions requested

Submission 2663/1 seeks that the contaminated land identification be removed from 90 The Esplanade, Surfdale (Lot 115 DP 16354)

Submission 2109/1 seeks that the area identified as a 'contaminated site' at Administration Bay on Motutapu Island be redefined so that it only includes the southern half of the generator shed and the current and former fuel storage areas.

4.16.2 Planner's analysis and recommendations

4.16.2.1 Submission 2663/1 – 90 The Esplanade, Surfdale

The submitter seeks that the 90 The Esplanade (Lot 115 SP16354) be removed from the list of contaminated and potentially contaminated land contained within appendix 8. The list currently includes lots 114 and 115 DP 16354, at 90 The Esplanade (cnr of Blake Street).

The property above joins the rear boundary of 10 Blake Street which has historically, and is currently, used as a depot for various types of industry.

Council's records indicate that the use of 90 The Esplanade, past and present, has been for residential purposes and there has been no indication that this use could result in potential contamination of the site. The point is emphasised by the submission as the property has been in the ownership of the submitter's family for some 60 years and used as a residential property for that entire time. It appears that the property has been mistakenly identified as being part of the former depot at 10 Blake Street (Lot 114 DP 16354).

It is therefore not considered necessary to retain the property as being potentially contaminated and it is recommended that Lot 115 DP 16354, 90 The Esplanade, be removed from the list of contaminated or potentially contaminated land contained in appendix 8. Lot 114 should be retained and the address amended to 10 Blake Street.

It is therefore recommended that the submission be accepted and that map 2 sheet 6 be amended in accordance with Appendix 3.

4.16.2.2 Submission 2109/1 – Administration Bay (Raupoiti), Outdoor Education Centre, Motutapu

The submission, from the Motutapu Outdoor Education Camp Trust seeks that the contaminated land identification be redefined to only include the areas which the trust considers is potentially contaminated.

The land referred to in the submission has been included in the list of contaminated and potentially contaminated land within appendix 8 due to the fuel storage on the land. The extent of the contaminated land is the area occupied by the Motutapu Outdoor Education Camp at Administration Bay, northern side of Motutapu. It is noted that at the time of the notification of the Plan the site had not been investigated to establish the extent, if any, of contamination. There has been no indication since this time that any investigation has been undertaken on the site.

In order to refine the extent of the contamination on the land, appropriate investigation would need to be undertaken by a suitably qualified expert and this information provided to the council. The council would then be in a position to be able to accurately represent the extent of contaminated land and reduce the 'boundary' of the contamination. As a result of this, only the defined area would require a resource consent prior to any remediation or redevelopment and it would not affect the property as a whole. It is also noted that clause 9.6.3 provides an exemption from the requirement of a resource consent once the land is either proven to not be contaminated, or it is remediated.

It is recognised that the identification of this land as potentially contaminated may hinder any development plans intended for the site. However it is considered important to establish the exact extent of any contamination on the site before any reductions to the area considered potentially contaminated. As the land is used as an outdoor education camp by school children it is considered that a precautionary approach is justified.

It is recommended that the submission be accepted and that officers work with the trust to agree on a suitable map boundary for the potentially contaminated land on the property for the decision version of the Plan.

Planner's recommendations about submission relating to clause 4.0 (Appendix 8) That submissions 2109/1 and 2663/1 be accepted and the Plan be amended according to Appendix 3.

5.0 Conclusion

This report has considered the decisions requested in submissions lodged regarding Part 9 – Hazardous facilities and contaminated land and Appendix 8 – Lists for hazardous facilities and contaminated land, 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 these parts 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	Deborah Kissick, 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 changes to the Plan
Part A
Part B
Part C