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27220086_2.docx
BEFORE THE CHRISTCHURCH REPLACEMENT DISTRICT PLAN HEARINGS PANEL
IN THE MATTER of the Resource
Management Act 1991 and the Canterbury Earthquake (Christchurch Replacement District Plan) Order 2014
AND IN THE MATTER of the Natural and
Cultural Heritage Stage 3 Proposal
OPENING LEGAL SUBMISSIONS
ON BEHALF OF CHRISTCHURCH CITY COUNCIL
17 JANUARY 2016
Barristers & Solicitors
M G Conway / M J Jagusch / Z W Fargher Telephone: +64-4-499 4599 Facsimile: +64-4-472 6986 Email: [email protected] / [email protected] / [email protected] PO Box 2402 WELLINGTON
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TABLE OF CONTENTS
1. INTRODUCTION ........................................................................................................ 2
2. SCOPE OF THE HEARING ....................................................................................... 3
3. RELEVANT HIGHER ORDER AND POLICY DOCUMENTS ................................... 4
4. TOPIC 9.1: LEGAL ISSUES FOR DETERMINATION .............................................. 6
5. TOPIC 9.2: LEGAL ISSUES FOR DETERMINATION ............................................ 15
6. TOPIC 9.3: LEGAL ISSUES FOR DETERMINATION ............................................ 18
7. OTHER PROPOSALS: LEGAL ISSUES FOR DETERMINATION ........................ 20
8. FURTHER KEY ISSUES FOR DETERMINATION ................................................. 22
TOPIC 9.1: INDIGENOUS BIODIVERSITY AND ECOSYSTEMS ................................. 27
9. TOPIC 9.1: THE PROPOSAL .................................................................................. 27
10. TOPIC 9.1: KEY AREAS OF DISAGREEMENT ................................................. 28
TOPIC 9.2: OUTSTANDING NATURAL FEATURES AND LANDSCAPES, SIGNIFICANT FEATURES AND LANDSCAPES AND AREAS OF NATURAL CHARACTER IN THE COASTAL ENVIRONMENT ...................................................... 36
11. TOPIC 9.2: THE PROPOSAL .............................................................................. 36
12. TOPIC 9.2: KEY CHANGES SINCE NOTIFICATION OF PROPOSAL ............. 37
13. TOPIC 9.2: KEY AREAS OF DISAGREEMENT ................................................. 40
TOPIC 9.3: HISTORIC HERITAGE ................................................................................ 42
14. TOPIC 9.3: THE PROPOSAL .............................................................................. 42
15. TOPIC 9.3: KEY AREAS OF DISAGREEMENT ................................................. 43
TOPIC 9.4: SIGNIFICANT TREES ................................................................................. 54
16. TOPIC 9.4: THE PROPOSAL .............................................................................. 54
17. TOPIC 9.4: KEY AREAS OF DISAGREEMENT ................................................. 56
TOPIC 9.5: NGĀI TAHU VALUES AND THE NATURAL ENVIRONMENT .................. 63
18. TOPIC 9.5: THE PROPOSAL .............................................................................. 63
19. TOPIC 9.5: KEY AREAS OF AGREEMENT AND DISAGREEMENT ................ 63
20. TOPIC 9.5: RELEVANT ISSUES FROM THE STATEMENT OF ISSUES ......... 65
21. OTHER PROPOSALS: KEY AREAS OF DISAGREEMENT .............................. 68
22. WITNESSES ......................................................................................................... 74
23. EVIDENCE THAT WILL ALSO BE RELEVANT TO CHAPTER 19 ................... 76
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MAY IT PLEASE THE PANEL:
1. INTRODUCTION
1.1 These opening legal submissions are filed on behalf of the
Christchurch City Council (Council) for the Chapter 9: Natural and
Cultural Heritage (Stage 3) Proposal (Proposal), which was notified
as a Stage 3 Proposal on 25 July 2015. The Proposal includes the
following four topics:
(a) Topic 9.1: Indigenous biodiversity and ecosystems;
(b) Topic 9.2: Outstanding Natural Features and Landscapes;
Significant Features and Landscapes and Areas of Natural
Character in the Coastal Environment;
(c) Topic 9.3: Historic Heritage; and
(d) Topic 9.4: Significant Trees.
1.2 Ngāi Tahu's submission1 has sought the addition of a further set of
provisions in Chapter 9 relating to Ngāi Tahu Values and the Natural
Environment. It has been proposed through planning evidence2 that
these provisions be incorporated into a new section within the
Proposal. The title for this new section has been agreed as "Ngāi
Tahu Values and the Natural Environment" and it is proposed that it
be located as Part A to Chapter 9. The details of the section remain
to be determined. For the purpose of these legal submissions, it will
be referred to as Topic 9.5.
1.3 These submissions will address each of the topics listed above in
turn, followed by the other proposals that are being heard in this
hearing.
1 #3722.1 Te Runanga o Ngāi Tahu. 2 Evidence in chief of Shirley Ferguson, 2 December 2015 at 5.5; Evidence in chief of Alan Matheson, 2
December 2015 at 5.5; and Evidence in chief of Caroline Rachlin, 18 December 2015 at 6.9.
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1.4 The Proposal has been refined through agreements reached during
informal discussions and at mediation.3 The result of this is that a
substantial number of the issues raised by submitters have been
resolved. The issues to be resolved in this hearing have therefore
narrowed from those recorded in the Statement of Issues. The key
issues that remain outstanding based on the evidence that has been
filed are discussed further below in relation to each topic.
2. SCOPE OF THE HEARING
2.1 The scope of this hearing consists of all of the Stage 3 Chapter 9
Proposal as notified (including associated planning maps), with the
addition of provisions which have been deferred to, or are being
heard alongside, this hearing. These provisions are set out in the
further application by the Council for an order allocating provisions
dated 18 November 2015,4 and are reproduced in Appendix A for
convenience. The list of definitions to be heard within the hearing is
also reproduced in Appendix A.
2.2 In summary, these provisions are from the following other proposals
(collectively referred to as the 'Other Proposals') and are to be heard
with the topics identified below:
Other Proposal provisions Being heard with
(a) Transport (Stage 3) Topic 9.2
(b) Subdivision (Stage 1) Topic 9.4 and Topic 9.5
(c) Subdivision (Stage 3) Topic 9.4 and Topic 9.5
(d) Utilities and Energy (Stage 3) Topic 9.4
(e) Commercial and Industrial
(Stage 1)
Topic 9.5
3 Mediation Report (9.3 Historic Heritage; 9.4 Significant Trees; 9.1 Indigenous Biodiversity and
Ecosystems; 9.2 Outstanding Natural Features and Landscapes; Utilities and Energy; and Transport), 10 December 2015, John Mills – Environment Commissioner. Mediation Report (9.4 Significant Trees), 21 December 2015, John Mills – Environment Commissioner.
4 Further application for order updating allocation of notified provisions from the central city proposal to the general rules and the natural and cultural heritage hearings, dated 18 November 2015.
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(f) Rural (Stage 3) Topic 9.2
(g) Central City Subdivision and
Development
Topic 9.4
(h) Central City Earthworks Topic 9.4
(i) Central City Utilities and Energy Topic 9.4
2.3 In addition to the submissions on the above provisions, other specific
submission points that have been directed to be heard within this
hearing are also reproduced in Appendix A.
3. RELEVANT HIGHER ORDER AND POLICY DOCUMENTS
3.1 Planning evidence has identified the following documents as relevant
to the Proposal:
(a) Decision 1 (Strategic Directions) of the Independent
Hearings Panel on the pRDP, February 2015;5
(b) The Canterbury Regional Policy Statement 2013 (CRPS);6
(c) Christchurch Central Recovery Plan Te Mahere 'Maraka
Otautahi' (CCRP);7
(d) The Mahaanui Iwi Management Plan 2013;8
(e) Land Use Recovery Plan (December 2013) (LURP)9;
(f) the New Zealand Coastal Policy Statement 2010
(NZCPS);10
(g) Operative Banks Peninsula District Plan (BPDP);11
5 The Plan must give effect to Decision 1 (Strategic Directions). 6 The Plan must give effect to the CRPS. 7 The Plan must not be inconsistent with the CCRP. 8 The Panel must take into account the Mahaanui Iwi Management Plan 2013. 9 The Plan must not be inconsistent with the LURP. 10 The Plan must give effect to the NZCPS.
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(h) Operative Christchurch City Plan (Operative City Plan);12
and
(i) Schedule 4 (Statement of Expectations) of the Canterbury
Earthquake (Christchurch District Plan) Order 2014
(Statement of Expectations).13
3.2 These documents are addressed in the section 32 reports and in the
evidence of the Council’s planning witnesses as relevant.
Strategic Directions Objectives
3.3 A number of the Strategic Directions Objectives are relevant to the
Natural and Cultural Heritage Chapter. Objectives 3.3.1 and 3.3.2
are relevant in the wider sense, relating to recovery and clarity and
efficiency of the plan. Objectives 3.3.3, 3.3.9, 3.3.12 and 3.3.16 are
submitted to have more specific relevance, relating to:
(a) Objective 3.3.3 – Ngāi Tahu Manawhenua values. This
Objective places importance on matters including
incorporating Ngāi Tahu Manawhenua’s culture and identity
into the recovery and development of Otautahi, the
recognition of and provision for Ngāi Tahu Manawhenua’s
connections and values associated with the land, water and
Taonga of the district, and the retention and enhancement of
access to sites of cultural significance.
(b) Objective 3.3.9 – Natural and cultural environment. This
Objective places importance on people having access to a
high quality network of public open space and recreation
opportunities, and the identification and management of
important natural resources,14
matters of historical
11 The Panel must have regard to the BPDC. 12 The Panel must have regard to the Operative City Plan. 13 The Panel must have particular regard to the Statement of Expectations. 14 Including outstanding natural features and landscapes, the natural character of the coastal environment,
waterbodies and their margins, indigenous ecosystems, and the mauri and life-supporting capacity of ecosystems and resources.
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importance, and matters of cultural or spiritual importance to
Ngāi Tahu.
(c) Objective 3.3.12 – Infrastructure. This Objective recognises
the importance of infrastructure and is relevant to matters
including the protection of public trees in the road corridor
for amenity reasons.15
4. TOPIC 9.1: LEGAL ISSUES FOR DETERMINATION
4.1 It is submitted that Topic 9.1 gives rise to the following legal issues for
the Panel’s determination:
(a) is biodiversity offsetting appropriately provided for in the
proposal?;16
(b) is there a need to give particular recognition to indigenous
biodiversity in the coastal environment or other specific
areas?;17 and
(c) can the provisions of the specific purpose (Lyttelton Port)
zone developed through the Lyttelton Port Recovery Plan be
relied on for managing indigenous biodiversity on land within
the zone?18
4.2 In addition, the Panel in its minute dated 15 January 2016 has
identified the following legal issues, and asked that these be
addressed in legal submissions:
(a) What, if any, direction does the CRPS give concerning
objectives, policies and rules for indigenous vegetation
clearance when there has not been an assessment as
specified in Policy outside SES areas? Specifically, in those
circumstances, would it give effect to or be contrary to the
15 Evidence in chief of Caroline Rachlin, 18 December 2015 at 21.7 to 21.9. 16 Issue 2(g) of the Updated Statement of Issues dated 29 October 2015. 17 Issue 2(k) of the Updated Statement of Issues dated 29 October 2015. 18 Issue 2(aa) of the Updated Statement of Issues dated 29 October 2015.
7 27220086_2.docx
CRPS to impose such provisions in the absence of an
assessment?
(b) For assessments, does the CRPS give any relevant
direction concerning the applicable baseline date when
considering "where less than 20% of the original indigenous
vegetation cover remains" (Policy 9.3.2) and "[indigenous]
vegetation or habitat of indigenous fauna that has been
reduced to less than 20% of its former extent". Specifically,
is this pre-human history or pre-European history or some
other baseline date?
(c) The CRPS indicates that its protection directions pertain to
section 6(c) of the Resource Management Act 1991 (RMA)
which specifies, as a matter of national importance to be
recognised and provided for "the protection of areas of
significant indigenous vegetation and significant habitats of
indigenous fauna". Unlike other section 6 matters, section
6(c) does not include the qualifier "from inappropriate
subdivision, use and development". What does "protection"
mean for the purposes of giving effect to the CRPS? In
particular, how is "no net loss" to be measured (Policy
9.3.1)?
(d) Given our obligation is to give effect to the CRPS, are the
directions in Chapter 9 qualified or affected by other
directions in the CRPS?
(e) Are the Council's proposed rules (including definitions,
particularly of "indigenous vegetation" and "indigenous
vegetation clearance") sufficiently certain and enforceable
and intra vires? To the extent there is any such issue, how is
it best addressed?
8 27220086_2.docx
Issue 2(g) Is Biodiversity Offsetting appropriately provided for in the Proposal?19
4.3 The Council notes that biodiversity offsetting is directly addressed in
Policy 9.3.6 of the CRPS, to which the pRDP must give effect. Policy
9.3.6 of the CRPS requires as follows:
"Policy 9.3.6 – Limitations on the use of biodiversity offsets
The following criteria will apply to the use of biodiversity offsets:
(1) the offset will only compensate for residual adverse
effects that cannot otherwise be avoided, remedied or
mitigated;
(2) the residual adverse effects on biodiversity are capable of
being offset and will be fully compensated by the offset to
ensure no net loss of biodiversity;
(3) where the area to be offset is identified as a national
priority for protection under Policy 9.3.2, the offset must
deliver a net gain for biodiversity;
(4) there is a strong likelihood that the offsets will be
achieved in perpetuity; and
(5) where the offset involves the ongoing protection of a
separate site, it will deliver no net loss, and preferably a
net gain for indigenous biodiversity conservation.
Offsets should re-establish or protect the same type of
ecosystem or habitat that is adversely affected, unless an
alternative ecosystem or habitat will provide a net gain for
indigenous biodiversity."
4.4 It is submitted that the above approach is consistent with best
practice and recent case law. For example, in Day v Manawatu-
Wanganui Regional Council20
it was held that offset means:
"A measurable conservation action designed to achieve no net
loss and preferably a net gain of biodiversity on the ground once
19 This issue also relates to a query raised by Judge Hassan in the Subdivision (stage one) hearing
regarding offsetting / environmental compensation - Transcript, Day 1, page 101. 20 [2012] NZEnvC 182.
9 27220086_2.docx
measures to avoid, minimise and remedy have been
implemented".21
4.5 In the Council's submission, biodiversity offsetting is appropriately
provided for by Policy 5 and Appendix 9.1.4.5 of the revised proposal,
the Biodiversity Offsetting Framework, which requires, among other
things, that:
(a) works will only be considered to be a biodiversity offset
when avoidance, minimisation, remediation and mitigation
have occurred and that any biodiversity offset is additional to
these;
(b) proposed biodiversity offsets must contain an explicit loss
and gain calculation and should demonstrate the manner in
which no net loss, and preferably net gain, can be achieved;
(c) the benefits of the offset last as long as the impacts of the
activity, and in perpetuity; and
(d) biodiversity offsets must prioritise protection and
enhancement of existing areas of biodiversity and will be
undertaken as close as possible to the location of
development.
Issue 2(k) Is there a need to give particular recognition to Indigenous Biodiversity
in the Coastal Environment or other Specific Areas?
4.6 In the Council's submission, there is a need to give particular
recognition to indigenous biodiversity in the Coastal Environment.
This arises due to Policy 11(a) of the NZCPS, which requires
avoidance of adverse effects on indigenous biodiversity values within
the Coastal Environment.
21 Above, at 3 – 50.
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4.7 Chapter 9.1 provides this recognition by:
(a) scheduling known sites of ecological significance within the
Coastal Environment as SES; and
(b) requiring the avoidance of adverse effects in SES within the
Coastal Environment,22
whereas in SES outside of the
Coastal Environment, some adverse effects may be allowed
if avoidance is not practicable, provided there is "no net
loss".23
Issue 2aa Can the provisions of the Specific Purpose (Lyttelton Port Zone) be
relied on for managing Indigenous Biodiversity on land within the Zone?
4.8 At mediation on 24 November 2015, the Council agreed that land
within the Specific Purpose (Lyttelton Port) Zone should be exempt
from the rules in Topic 9.1.
4.9 This was on the basis that this zone has its own specific planning
regime, introduced by way of the Canterbury Earthquake Recovery
Act. That planning regime includes provisions in relation to ecological
matters.
4.10 Accordingly, the Council proposes that the zone be exempt from the
rules in Topic 9.1, and that this be done by way of a note indicating
this exemption in 9.1.2.1 "How to use the rules" stating "The rules in
9.1.2.2 do not apply to the Specific Purpose (Lyttelton Port) Zone." In
the Council’s submission, including this note will avoid the need to
amend the Specific Purpose (Lyttelton Port) Zone provisions to
achieve the agreed exemption. However, the matter is raised here in
case the Panel decides that it also wishes to reflect this exemption in
Chapter 21.8.2.1.2.24
22 In the 18 December 2015 revised proposal attached to Deborah Hogan's Rebuttal evidence. 23 Rebuttal evidence of Deborah Hogan, 18 December 2015 at 3.15 to 3.18. 24 Rule 21.8.2.1.2 does not provide specifically for an exemption from 9.1 for Lyttelton Port, but it states that
the activities listed apply only "where appropriate".
11 27220086_2.docx
LEGAL ISSUES IDENTIFIED BY THE PANEL IN ITS 15 JANUARY 2016 MINUTE
4.11 Counsel have endeavoured, in the time available, to provide a
response in opening legal submissions to the issues identified in the
Panel's minute of 15 January 2016. Counsel can provide a more
fulsome response in our closing remarks, if the Panel considers this
to be necessary. The Panel can also (as it considers appropriate)
direct questions in relation to the CRPS to Ms Hogan.
What, if any, direction does the CRPS give in respect of vegetation clearance
outside SES areas?
4.12 In the Council's submission, Policy 9.3.1 Method 3 of the CRPS
provides relevant direction in respect of rules relating to clearance of
indigenous vegetation outside an area where there has been an
assessment of the vegetation's significance. This method provides
that territorial authorities will:
"Set out objectives and policies, and may include methods in
district plans to provide for the identification and protection of
areas of significant indigenous vegetation and significant
habitats or indigenous fauna.
District plan provisions will include appropriate rule(s) that
manage the clearance of indigenous vegetation, so as to provide
for the case-by-case assessment of whether an area of
indigenous vegetation that is subject to the rule comprises a
significant area of indigenous vegetation and/or a significant
habitat of indigenous fauna that warrants protection".
4.13 In the Council's submission, this method supports rules requiring a
case by case assessment of areas of indigenous vegetation to
determine whether the vegetation is significant and warrants
protection. Constraints in terms of time and funding have meant it
has not been possible for the Council to identify and survey all
potential sites of ecological significance. In the Council's submission
it is likely that further sites that meet the CRPS criteria for
identification as a site of ecological significance exist. The absence
12 27220086_2.docx
of a rule in relation to general indigenous vegetation clearance would
mean that there is a high likelihood that this vegetation could be lost.
Does the CRPS give any direction concerning the baseline for "where less than
20% of original indigenous vegetation cover remains" and is this pre-human
history or pre-European history?
4.14 The CRPS explains25
that the 20% baseline has been identified by
the Land Environments of New Zealand (LENZ) classification system
because, below 20%, the momentum of decline of indigenous
vegetation becomes difficult to reverse. It notes that a significant
proportion of land environments in Canterbury fall below this
threshold, which increases the significance of the vegetation
remaining.
4.15 Based on discussions with Council's consultant ecologist Mr Hooson,
counsel understand that the 20% reference is to pre-settlement (i.e.
pre European and Maori settlement) levels of vegetation, and
therefore what would have been the natural extent of indigenous
biodiversity. These levels of pre-settlement indigenous vegetation
are determined based on a modelled estimate. In particular, page 26
of the Threatened Environment Classification User Guide (Walker et
al. 2007) provides:
"The resulting indigenous vegetation layer is used as a best
estimate of the percentage of indigenous cover that now remains
in each land environment, and thus the loss of indigenous cover
from pre-settlement times to the present day".
4.16 Mr Hooson will be available to answer any more detailed questions
the Panel has in relation to this issue.
25 At page 109.
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What does "protection" mean for the purposes of giving effect to the CRPS? In
particular, how is "no net loss" to be measured? (Policy 9.3.1)?
4.17 In the Council's submission, the requirement to ensure protection of
significant indigenous vegetation under section 6 of the Act and policy
9.3.1 of the CRPS means that the existing levels of vegetation are not
to be reduced. Accordingly, clearance of an area that has been
assessed as meeting the criteria for significance in the CRPS should
only be enabled in very limited circumstances, with an offset being
one of the tools available to ensure there is no net loss.
4.18 "No net loss", in the Council's submission, must be measured in
terms of no net loss across the region to which the CRPS applies. As
outlined in the evidence26
, this does provide some flexibility in terms
of limited clearance, where an appropriate off-set is provided.
Are the directions in Chapter 9 qualified or affected by other directions in the
CRPS?
4.19 The pRDP is required to give effect to all sections of the CRPS (not
just Chapter 9 relating to Ecosystems and Indigenous Biodiversity).
With respect to other directives in the CRPS, we have noted a
number with broad relevance to the matters in Topic 9.1, including the
following:
(a) Objective 5.2.1 – relating to the location and design of
development;
(b) Policy 5.3.2 – relating to development conditions in the wider
region – particularly around managing the effects of
regionally significant infrastructure;
(c) Policy 5.3.4 – relating to Papakāinga housing and marae;
(d) Objective 6.2.1 – relating to the recovery framework;
26 Evidence in chief of Deborah Hogan, 2 December 2015, at 12.49.
14 27220086_2.docx
(e) Policy 7.3.3 – relating to enhancing freshwater environments
and biodiversity;
(f) Policy 8.3.3 – relating to the management of activities in the
coastal environment;
(g) Policy 10.3.2 – relating to the protection and enhancement
of areas of river and lake beds and their riparian zones; and
(h) Policy 16.3.3 – relating to the benefits of renewable energy
generation facilities.
4.20 The Council's planner Ms Hogan will be available to answer questions
in relation to this issue. In addition, the Council can also address this
matter further in its closing remarks, if the Panel considers this would
be useful.
Are the Council's proposed rules sufficiently certain and enforceable and intra
vires?
4.21 In the Council's submission, the rules in this Proposal are sufficiently
certain to be enforceable and intra vires. Witnesses and counsel will
be available to assist in clarifying any questions related to certainty of
particular provisions, and the Council would be open to further expert
conferencing to resolve any issues that are identified.
4.22 With respect to the definition of "indigenous vegetation", the Council
has responded to submitter concerns about certainty and these have
been addressed in the revised proposal. Two versions of this
definition were notified, one as part of Stage 1 and a second as part
of Stage 3. Submitters, including the Crown, expressed support for
the Stage 3 version but suggested a number of amendments to
enhance clarity, around points such as whether it captures endemic
or native vegetation. The Council supported these amendments and
amended the definition accordingly.27
27 Evidence in chief of Deborah Hogan, 2 December 2015, at 24.9 – 24.13.
15 27220086_2.docx
4.23 A further issue of interpretation relating to the exclusion of 'plantings
for cultural use' was raised by Ngāi Tahu, and this has been removed
from the definition included in the revised proposal.
4.24 Fulton Hogan sought to have an exclusion added to this definition for
vegetation established for agriculture and horticulture, on the basis
that the definition may have captured self-seeding on post cultivation
land. The revised proposal was amended accordingly.
4.25 In terms of "indigenous vegetation clearance", the Crown suggested
amendments to the definition in order to clarify the full range of
activities that clear indigenous vegetation. As discussed in
Ms Hogan's rebuttal evidence, these amendments, inserting irrigation,
artificial drainage and stop baking, were included in the revised
proposal.28
5. TOPIC 9.2: LEGAL ISSUES FOR DETERMINATION
5.1 It is submitted that Topic 9.2 gives rise to the following legal issues for
the Panel’s determination:
(a) Should the significant feature and landscape policies refer to
enhancement?29
(b) Does alleged complexity in relation to layout and structure
mean that this topic is inconsistent with the higher level
policy documents?30
Should the significant feature and landscape policies refer to
enhancement?
5.2 Section 7(c) of the Act refers to the "maintenance and enhancement"
of amenity values. On that basis, Objective 9.2.1.2 and Policies
9.2.2.3 and 9.2.2.4, as notified, included a requirement to maintain
and enhance Significant Features and Rural Amenity Landscapes.
28 Rebuttal evidence of Deborah Hogan, 18 December 2015 at 9.2 – 9.3. 29 Issue 3(I) of the Updated Statement of Issues dated 29 October 2015. 30 Evidence in chief of Anna Cameron, 10 December 2015 at 13.5 (d).
16 27220086_2.docx
Following consideration of submissions31
the reference to
enhancement was deleted.
5.3 Ms Cameron’s evidence for the Crown seeks the reinstatement of the
word “enhance” in those provisions.32
The Crown has sought in its
submission that policies in relation to significant feature and
landscapes be amended to refer to the maintenance (and
enhancement) of these landscapes "where practicable".
5.4 Ms Ferguson’s evidence that she does not support the inclusion of
the word "enhancement" in these policies, on the basis that she
considers this to be unduly onerous on landowners.33
Ms Ferguson
further notes that there would be a difficulty, in her view, in having
methods that implemented a policy requiring "enhancement" on the
basis that this would require landowners to improve the landscape
values of a particular landscape, and it is not clear how this could be
achieved.34
5.5 In the Council's submission, while it acknowledges the references in
the Act to "enhancement" of landscape values, there is a practical
difficulty in terms of identifying rules or methods which would ensure
"enhancement" of a landscape. The more usual focus of provisions,
as in this case, is on the management of activities which have the
potential to adversely affect landscape values. Furthermore, while
there is a clear statutory basis under the Act to require parties to
avoid, remedy, or mitigate the adverse effects of their activities on the
environment, in the Council's submission, it is less clear on what
basis the Council could require a party to "enhance" (in other words
improve) a landscape. Accordingly, the Council remains of the view
that Objective 9.2.1.2 and Policies 9.2.2.3 and 9.2.2.4 should not
refer to enhancement.
31 Carter Group Limited #3602.202; Tapper Family Trust #3284. 32 Evidence in chief of Anna Cameron, 10 December 2015 at 8.13 – 8.14. 33 Evidence in chief of Shirley Ferguson, 2 December 2015 at 6.55. 34 Evidence in chief of Shirley Ferguson, 2 December 2015 at 6.55.
17 27220086_2.docx
Does alleged complexity in relation to layout and structure mean that this
topic is inconsistent with high level policy documents?
5.6 Ms Cameron on behalf of the Crown has given evidence that, in her
view, alleged complexity in relation to the layout and structure of the
topic mean that it is inconsistent with higher level policy documents.35
5.7 Ms Ferguson’s evidence is that she considers the structure of the
provisions in this topic to be appropriate.
5.8 The Council acknowledges the requirement in the statement of
expectations to ensure that the Plan is clear and easy to use.36
However, in the Council's submission:
(a) The provisions in this topic are not unduly complex, and
restructuring them in the way suggested by the Crown will
not significantly improve usability; and
(b) In any event, "complexity" in and of itself does not mean the
provisions are inconsistent with the higher level policy
documents. The Council submits that the provisions give
effect to the high level policy documents and are consistent
with them.
(c) The statement of expectations also requires that the pRDP
contains objectives and policies that "clearly state the
outcomes that are intended for the Christchurch district"37
and "clearly articulates how decisions about resource use
and values will be made…"38
It is important to ensure clarity
of substance (eg what is actually required by the Plan) as
well as clarity of structure.
35 Evidence in chief of Anna Cameron, 10 December 2015 at 13.5(d). 36 Statement of Expectations, (i) " that the replacement district plan… use clear, concise language, and is
easy to use". 37 Statement of Expectations, (b). 38 Statement of Expectations, (a).
18 27220086_2.docx
6. TOPIC 9.3: LEGAL ISSUES FOR DETERMINATION
6.1 It is submitted that Topic 9.3 gives rise to the following legal issues for
the Panel’s determination:
(a) Whether the Panel has jurisdiction to amend the provisions
in Chapter 6 General Rules and Procedures (6.8 Signs) if
those provisions require amendment to address any cross-
over issues between the signage provisions in - 6.8 Signs
and Topic 9.3.
(b) The lawfulness of any certification process utilised to reduce
the level of regulation of heritage items.
Whether the Panel has jurisdiction to amend the provisions in Chapter 6.8 Signs
6.2 At the signage mediation on 9 December 2015, the parties discussed
the way in which signage in heritage items and settings is to be
regulated. The position reached was that the rules in Chapter 6 for
signage, including built form standards, apply to heritage items and
heritage settings, except where the Chapter 9 rules impose additional
standards as well. The Revised Proposal attached to Ms Rachlin’s
evidence in chief reflects her understanding of the way in which that
position was to be implemented (see Rule 9.3.3.2.1 P6).
6.3 In light of that outcome, the Council considers it would be beneficial
for any matters of integration and consistency between Chapter 9.3
and Chapter 6.8 to be considered during the hearing for Chapter 6
(which is currently scheduled to take place in March 2016). It is
submitted that the Panel would have jurisdiction under clause 13(2) of
the Order in Council to make any changes it considers appropriate to
Chapter 6 in making a decision on that chapter, if any issues of scope
arise as a result.
19 27220086_2.docx
The lawful extent of any certification process utilised to reduce the level of
regulation of heritage items
6.4 As noted earlier, the Crown has sought the use of expert certification
processes in the pRDP to reduce the level of regulation of heritage
items. Ms Rachlin has indicated that she sees merit in exploring this
approach further, subject to resolution of process and implementation
issues.39
6.5 There are potential issues in relation to what a certification process
could achieve. To the extent that any such provisions purported to
allow the amendment of provisions in the pRDP without the need for
a plan change (eg amending the extent of heritage settings), one of
two potential issues could arise:
(a) If the provision sought to allow the correction of minor errors
in the pRDP, then the provision would be unnecessary, as it
would duplicate clause 20A of Schedule 1 of the RMA,
which allows the Council to correct minor errors in a plan at
any time. The effect of such a provision would be to inform
the public of the clause 20A power rather than to create any
new power.
(b) If the provision sought to allow changes to the pRDP that
went beyond minor errors, then the provision would go
beyond what clause 20A allows and would likely be
ineffective or unlawful or both. Aside from minor errors
corrected under clause 20A, the RMA envisages a plan
change process being used to amend district plan
provisions.
6.6 Care would therefore need to be taken to ensure that any certification
provisions appropriately addressed these issues and did not go
beyond what the RMA allows.
39 Evidence in chief of Caroline Rachlin, 18 December 2015 at 7.2; Rebuttal evidence of Caroline Rachlin,
15 January 2016 at 4.17.
20 27220086_2.docx
7. OTHER PROPOSALS: LEGAL ISSUES FOR DETERMINATION
7.1 It is submitted that the other proposals being heard in this hearing
give rise to the following legal issues for the Panel’s determination:
(a) In relation to the Subdivision provisions being heard with this
topic, whether it is lawful to include a rule making an
application to remove a consent notice a restricted
discretionary activity.
(b) In relation to the Utilities and Energy provisions being heard
with this topic, whether there is scope to amend
Objective 11.1.2.
Whether it is lawful to include a rule making an application to remove a consent
notice a restricted discretionary activity
7.2 Andrew Long’s rebuttal evidence at paragraph 4.2 responds to the
request by Eliot Sinclair (submission (#3701)) for a rule categorising
the removal of a consent notice recording the presence of historical
subdivision trees as a restricted discretionary activity. The intent of
this change is to provide useful guidance about the matters the
Council would consider when it is processing such an application.
7.3 The Council has no opposition to the intent of this change (ie
providing greater clarity) but wishes to record that there is some
uncertainty about whether such a rule is envisaged by the RMA. In
essence, this is because the removal of a consent notice does not
appear to be a use of land in terms of section 9 of the RMA or a
subdivision of land in terms of section 11, so on its face there is no
activity that is being consented.
21 27220086_2.docx
7.4 By way of background, a consent notice is registered on the computer
freehold register for a property when the subdivision consent creating
that property is subject to a condition to be complied with on an
ongoing basis (RMA section 221(1)). Section 221(3) provides that
the owner may apply to cancel a consent notice. It then states:
"Sections 88 to 121 and 127(4) to 132 apply, with all
necessary modifications, in relation to an application made
or review conducted under subsection (3)."
7.5 The effect of this is that the application for cancellation would be
treated as an application for a resource consent. Given that the
cancellation of a consent notice is not an activity otherwise restricted
by sections 9 or 11 of the RMA, the outcome of the application would
be the cancellation (or confirmation) of the consent notice, rather than
a resource consent.
7.6 No activity status is specified in section 221(3), and section 127(3)
(which states that an application to vary conditions of consent is
treated as an application for a discretionary activity) does not apply to
a section 221(3) application. It is submitted that an application under
section 221(3) is inherently discretionary, in the sense that the RMA
does not limit the Council's discretion in relation to the application,
and the Council may approve or decline the application.
7.7 If a rule could be included in the Plan making the removal of a
consent notice a restricted discretionary activity, then the Council
would retain the ability to approve or decline the application, but its
discretion in considering the application would be limited to the
matters listed in the rule.
7.8 The Council also wishes to record that the removal of a consent
notice would likely still require an application to be made under
section 127 of the RMA for a change of the related condition of the
subdivision consent. Such an application would be treated as a
discretionary activity as required by section 127(3). As noted in
Mr Long's evidence, the rule proposed by Ms McKeever might
provide guidance about the matters the Council would consider in
22 27220086_2.docx
such an application, but it may be of limited benefit in terms of altering
the overall activity status in relation to the removal of a consent
notice.
Whether there is scope to amend Objective 11.1.2
7.9 As outlined in the rebuttal evidence of Ms Jenkin (at paragraph 3.2),
an issue has been raised that there is a gap in objective 11.1.240, in
that the objective does not refer to areas and items of natural and
cultural heritage. At paragraph 3.5 Ms Jenkin suggests a potential
amendment to that objective to address this gap.
7.10 Objective 11.1.2 was not part of the notified Stage 3 Utilities and
Energy proposal. Rather, it was considered in the Stage 2 Utilities
and Energy proposal, the hearing for which concluded on
4 December 2015. While amendments were sought and made to
Objective 11.2.1 during the Stage 2 consideration, these did not
relate to any Stage 3 Natural and Cultural Heritage Matters.
7.11 In the Council's submission, if the Panel agreed that this amendment
would be beneficial, it would be open to the Panel to make this
amendment in reliance on its powers in clause 13(2) and/or 13(5).
8. FURTHER KEY ISSUES FOR DETERMINATION
8.1 It is submitted that the following further key issues are raised by this
Proposal:
(a) Potential fairness issues relating to submissions seeking site
specific relief where the submitter making the request is not
the landowner of the site.
(b) Applicability of Chapter 9 to Papakāinga/Kainga Nohoanga
Zone.
40 Evidence in chief of Penelope Lemon, 10 December 2015 at 26.
23 27220086_2.docx
Potential fairness issues relating to site specific relief
8.2 Submissions on this Proposal have included those from landowners
interested in the recognition and protection of items and features on
their own land, as well as submissions in relation to the recognition
and protection of items and features on public land (eg public realm
trees) and on land owned by others (eg heritage buildings and
significant trees).
8.3 The pRDP process has not included a requirement to publish
summaries of decisions requested in submissions. The onus has
been on landowners and any other interested persons to review
submissions made on the Plan and consider whether to make a
further submission. The volume of submissions that would need to
be reviewed has meant there is an increased possibility that a
landowner may not be aware that a submitter has sought relief that
will affect that landowner (eg the listing of their building as a heritage
building in Topic 9.3 or the listing of their tree as a significant tree in
Topic 9.4).
8.4 In the event the question of fairness is a matter the Panel wishes to
explore further, counsel will endeavour to assist the Panel. The
Council will abide the Panel's decision about whether any potential
fairness implications deserve to be given weight in the Panel's
consideration of whether to accept the relief sought in a submission.
However, the Council notes that any fairness issues are distinct from
whether the Panel has jurisdiction to grant relief that is clearly sought
in a submission made on the proposal. The Council submits that
such jurisdiction can exist regardless of whether a particular
landowner is aware of the relevant submission.
Applicability of Chapter 9 to Papakāinga/Kainga Nohoanga Zone
8.5 One of the issues for the Panel's determination is the extent to which
Chapter 9 applies to land within the Papakāinga/Kainga Nohoanga
Zone. The reason this is important is because the Papakāinga/
Kainga Nohoanga Zone is intended to enable Ngāi Tahu to exercise
kaitiakitanga over their ancestral lands.
24 27220086_2.docx
8.6 This matter was the subject of mediation on 30 November 2015 in
relation to Topic 9.2 overlays, the outcome of which was recorded as
follows:
"CCC advised that overlays will apply to Papakainga Zones
(Maori owned land only) and will have effect when an activity
requires resource consent under the Papakainga Zone. This
was accepted by the parties although some further tweaking to
the rules is required. It is noted TRONT is not seeking deletion
of the overlays."
8.7 Below we set out the way in which the Council's 13 January 2016
closing legal submissions in relation to the Papakāinga/Kainga
Nohoanga Proposal addressed this matter in relation to the whole of
Chapter 9. Those submissions state that the provisions of Chapter 9
would apply in the following way in the Papakāinga/Kainga Nohoanga
Zone:
(a) 9.1 – Indigenous Biodiversity and Ecosystems - proposed
that all provisions will apply.
(b) 9.2 – Outstanding Natural Features and Landscapes,
Significant Features and Landscapes and Areas of Natural
Character in the Coastal Environment - proposed that the
Outstanding Natural Landscape and Features would apply
(but not Rural Amenity Landscapes). (Note: There are no
Significant Features applying to the Papakāinga Zone);
proposed that the "Areas of At Least High Natural Character
in the Coastal Environment" would apply (but not Natural
Character in the Coastal Environment).
(c) 9.3 – Historic Heritage – proposed that the provisions would
apply (Note: The original Onuku Marae is the only proposed
heritage item).
(d) 9.4 – Significant Trees – proposed that the provisions would
apply (Note: Significant Tree provisions only apply at
Wairewa and Onuku).
25 27220086_2.docx
8.8 In terms of the further adjustments of the rules, the Council's position
is that once the structure and format of the Papakāinga/Kainga
Nohoanga zone was agreed between the parties,41 the next step
would be to review which rules would or would not apply in the
overlays. The Council envisages that the mechanism for
implementing the outcome of that review will include consideration of
Rule 4.2.2.3 RD3, which makes the following activities restricted
discretionary activities in the Papakāinga/Kainga Nohoanga Zone:
"Any controlled, restricted discretionary, discretionary or non-
complying activity in Chapters 5, 6.1 - 6.7 and 6.9 - 6.10, 7 8, 9,
11, 12 and 19."
8.9 This review of which rules will apply has now been undertaken by the
Council, and Mr Matheson or Ms Ferguson will update the Panel in
relation to this matter when they present their evidence. In the
interim, the Council is continuing to work with Ngāi Tahu on this
matter.
8.10 Ms Ferguson's evidence in chief (dated 2 December) referred to an
earlier version of the Papakāinga/Kainga Nohoanga Zone provisions
which included a now-removed Manawhenua Overlay rather than
Maori Land within the Papakāinga Zone). Ms Ferguson and
Ms Pfluger further addressed the issue in rebuttal. The Council has
now been able to place the overlays over the Papakāinga/Kainga
Nohoanga Zone and these have been provided to Ngāi Tahu.42
Ms Ferguson will confirm when she presents evidence that:
(a) The Outstanding Natural Landscape overlays will be shown
in the Papakāinga/Kainga Nohoanga Zone, and the rules
relating to those overlays will apply with some
modifications.43
41 The updated Papakāinga/Kainga Nohoanga provisions were provided to the Proposal 4 Panel by
memorandum on 15 December 2015. 42 On 15 January 2016. 43 There are no outstanding natural features within the Papakāinga/Kainga Nohoanga Zones.
26 27220086_2.docx
(b) Overlays relating to Areas of At Least High Natural
Character in the Coastal Environment will be shown in the
Papakāinga/Kainga Nohoanga Zone, and the rules relating
to those overlays will apply with some modifications.
(c) The Rural Amenity Landscape overlay and the overlay
showing Areas of Natural Character in the Coastal
Environment (ie those areas that are not "High Natural
Character" or above) will be shown in the
Papakāinga/Kainga Nohoanga Zone but the associated
activity specific rules will not apply to Maori Land.
27 27220086_2.docx
TOPIC 9.1: INDIGENOUS BIODIVERSITY AND ECOSYSTEMS
9. TOPIC 9.1: THE PROPOSAL
9.1 An overview of the key features of Topic 9.1 Indigenous Biodiversity
and Ecosystems is set out in the evidence in chief of Ms Hogan44
. In
summary, the key features are:
(a) A total of 102 SES are included on the schedule in Appendix
9.1.4.1 of the Plan to protect their ecological values. These
sites are proposed for inclusion on the basis that they meet
criteria for significance identified in the Canterbury Regional
Policy Statement (CRPS), including in relation to
1) representativeness; 2) rarity/distinctiveness; 3) diversity
and pattern; and 4) ecological context.45
Many of the types
of ecosystems proposed for inclusion in the Schedule are
classified as either threatened, or acutely threatened, with
less than 20% of the original extent of the ecosystems
remaining. Clearance of indigenous vegetation within an
SES, apart from limited permitted activity exemptions,
requires resource consent as a non-complying activity. This
is considered necessary to give effect to the directive in
section 6(c) of the RMA to protect areas of significant
indigenous vegetation.
(b) Outside of areas identified as an SES, clearance of
indigenous vegetation requires resource consent as a fully
discretionary activity. This control is considered necessary
on the basis that there are likely to be areas of indigenous
vegetation outside of areas listed as SES that meet the
criteria for significance in the CRPS. However, these have
not yet been identified and assessed. The general
indigenous vegetation clearance rule allows for a case by
case assessment of the effects of vegetation clearance, and
whether the effects are significant;46
44 Evidence in chief of Deborah Hogan, 2 December 2015 at 7.5 – 7.7. 45 Evidence in chief of Antony Shadbolt, 2 December 2015 at 4.1. 46 Evidence in chief of Deborah Hogan, 2 December 2015 at 7.5(c).
28 27220086_2.docx
(c) 9.1.1.1.1 Policy 1 acknowledges that the current schedule of
SES is not complete, and that the Council will undertake
further work to identify additional SES in the future, and
update the schedule of sites via a plan change; and
(d) 9.1.1.1.5 Policy 5 relates to offsetting of effects. The Policy
recognises that offsetting is required where there are any
residual effects on indigenous biodiversity meeting the
significance criteria. The Policy sets out a hierarchy where
significant adverse effects are avoided in the first instance,
minimised where total avoidance is impracticable, remedied
where this is not possible, and then mitigated. The offset
must achieve no net loss, and preferably a net gain, in
indigenous biodiversity values.
10. TOPIC 9.1: KEY AREAS OF DISAGREEMENT
10.1 In relation to Topic 9.1, a number of site specific submissions seeking
amendments to the boundaries of SES have been resolved. There
have also been refinements to the plan provisions relating to SES.
These are detailed in the evidence of Ms Hogan, Mr Hooson and Dr
Shadbolt, and will not be addressed further in these submissions.
10.2 The remaining key areas where there is disagreement in relation to
Topic 9.1 can be summarised as follows:
(a) Is the SES regime too restrictive?47
(b) Are the SES identified in the Plan sufficiently
comprehensive?48
(c) Should the general indigenous vegetation clearance control
remain?49
47 Issue 2(r) of the Updated Statement of Issues dated 29 October 2015. 48 Issue 2(l) of the Updated Statement of Issues dated 29 October 2015. 49 Issue 2(v) of the Updated Statement of Issues dated 29 October 2015.
29 27220086_2.docx
(d) Is the relationship between the provisions in Chapter 11 and
Topic 9.1 clear?50
(e) Is it appropriate to include a definition of 'regenerating
indigenous vegetation' and to allow for this, in order to
provide certainty that grazing can continue within an SES?51
(f) Should the objectives and policies refer to 'biodiversity
values and ecosystems functions'?52
(g) Should Policy 2(a) include reference to 'no net loss'?53
(h) Is the wording in Policy 5 and Appendix 9.1.4.5 consistent
with best practice?54
(i) Should the activity status for vegetation clearance for
SES/LP/15 at Templeton Golf Course be changed from non-
complying to restricted discretionary?55
(j) Should part of SES/LP/16 be deleted as sought by Norak
Properties #3216?56
10.3 These matters are outlined further below.
Is the SES regime too restrictive?
10.4 Various submitters57
have sought to challenge the SES provisions on
the basis that they are too restrictive and this will limit the ability to
establish new activities on their land, and will reduce the value of their
properties.
50 Issue 1(b) of the Updated Statement of Issues dated 29 October 2015. 51 Issue 2(q) of the Updated Statement of Issues dated 29 October 2015. 52 Issue 2(h) of the Updated Statement of Issues dated 29 October 2015. 53 Issue 2(g) of the Updated Statement of Issues dated 29 October 2015. 54 Issue 2(g) of the Updated Statement of Issues dated 29 October 2015. 55 Issue 2(ad) of the Updated Statement of Issues dated 29 October 2015. 56 This issue is still outstanding but is being discussed between the parties. 57 MKT/TRoNT #3722, Page 2, Appendix 3.1; Mike Percasky #3325.1; Brian Hutchinson #3293; GT
Developments Ltd #3646; Annandale Enterprises Limited #3630. Re devaluation of property: Theresa Simpkins #3109; and Michael Bayley #3285.
30 27220086_2.docx
10.5 In response to these submissions, Ms Hogan:
(a) has proposed amendments to broaden the range of
vegetation clearance that can be undertaken in an SES as a
permitted activity;58
(b) has proposed some amendments to Policy 2(a) relating to
vegetation clearance with an SES. However, in her view,
given the importance of these sites it is important the Policy
Framework still discourages vegetation clearance within
them, and recognises that any removal is the exception, not
the norm;59
and
(c) expresses support for (and has included) a new rule
proposed by Transpower New Zealand Limited providing for
vegetation clearance in an SES to allow for new or upgrades
to strategic infrastructure or utilities.60
This rule also
addresses the Crown's concerns related to the upgrading of
strategic infrastructure.61
10.6 In response to submitters who more generally prefer non-regulatory
approaches and oppose scheduling of sites as SES on the basis that
this will restrict the activities that can be undertaken, and reduce
property values, in the Council's submission:
(a) scheduling known sites is the most appropriate means of
meeting requirements under section 6(c) of the RMA and the
CRPS to protect areas of ecological significance – which
typically form parts of rare and threatened ecosystems;
(b) the rules expressly recognise and permit the continuation of
existing low impact activities, including grazing within 12
months up to and including 25 July 2015 and maintenance
of improved pasture at 25 July 2015; and
58 Evidence in chief of Deborah Hogan, 2 December 2015 at 13.11. 59 Rebuttal evidence of Deborah Hogan, 18 December 2015 at 3.14. 60 Rebuttal evidence of Deborah Hogan, 18 December 2015 at 5.1 to 5.3. 61 Evidence in chief of Anna Cameron, 10 December 2015 at 7.23.
31 27220086_2.docx
(c) the RMA provides for controls to be imposed on the use of
land, in order to achieve the purpose of the Act, and
confirms that compensation is not payable in relation to land
use controls.62
Are the SES identified in the Plan sufficiently comprehensive?
10.7 Forest and Bird63
and the Crown64
have noted that the 102 SES
proposed for inclusion in the Plan do not represent a complete list of
the ecologically significant sites in the District.
10.8 As outlined in the evidence of Dr Appleton, the Council agrees that
there will be further sites that meet the criteria for inclusion in the Plan
as a SES, particularly in Banks Peninsula. The policy framework also
confirms this through Policy 1(b) and an advice note inserted at the
start of Appendix 9.1.4.1. The sites that are proposed for inclusion in
the Plan as SES are sites where the Council has sufficient reliable
information to confidently assess the site's significance.65
With
respect to other potential sites, further work is required to confirm
whether these should be included.
10.9 The Council agrees with submitters on the desirability of further work
to confirm additional SES and include these in the Schedule via
further Plan Changes in the future. In the meantime, as outlined
earlier and discussed further below, the Plan protects indigenous
vegetation outside an SES and requires an assessment of its
significance as part of any consent application relating to its
clearance.
Should the general indigenous vegetation clearance control remain?
10.10 Federated Farmers opposes the general indigenous vegetation
clearance control on land outside of an SES. Counsel understand
that this is on the basis that the submitter considers all significant
indigenous vegetation should be identified in SES, and because of
62 Resource Management Act 1991, section 85. 63 Evidence in chief of Christopher Davis, 10 December 2015 at 35. 64 Evidence in chief of Nicholas Head, 10 December 2015 at 4.3. 65 Evidence in chief of Scott Hooson, 2 December 2015 at 11.3.
32 27220086_2.docx
the cost to farmers of the requirement to seek consent for vegetation
clearance outside these areas and assess the ecological significance
of the areas to be cleared.
10.11 As already outlined, the list of SES proposed to be included in the
Plan is not complete, and it is highly probable that there are areas
outside the identified SES that will meet the significance criteria. In
the Council's submission, in order to give effect to Policy 9.3.1 of the
CRPS and to meet the Council’s responsibilities under section 6(c),
section 7(d) and section 31(1)(b)(iii), this means that a rule controlling
the clearance of indigenous vegetation outside SES areas is required,
to ensure that the values of this vegetation are properly assessed
through the consent process, before any clearance is authorised.
Is the relationship between the provisions in Chapter 11 and Topic 9.1 clear?
10.12 In their submissions, the telecommunication companies66
raised a
potential conflict between the provisions in Chapter 11 and Topic 9.1.
As outlined in Ms Hogan's evidence in chief,67
the Council considers
that at a policy level, there is no inconsistency between Chapter 11
and Topic 9.1. However, a number of amendments were made to
specific provisions in Topic 9.1 to enhance clarity in response to
these submissions, including the addition of relevant exemptions from
the rules, consistent with Strategic Direction Objective 3.3.12(a).
10.13 The evidence for Transpower68
and Orion69
identified that there were
further opportunities for refinement between Chapter 11 and 9.1
through the inclusion of additional cross-referencing.70
The Council
has agreed with these linkages and they have been included in the
revised proposal.
66 Two Degrees Mobile Ltd #3353.5, .6; Spark New Zealand Trading Limited #3408.6; Vodafone New
Zealand Limited #3556.6; Chorus New Zealand Limited #3635.6; Enable Networks Ltd #3689.5. 67 Evidence in chief of Deborah Hogan, 2 December 2015, at 23.1. 68 #3494. 69 #3720. 70 Evidence in chief of Penelope Lemon, 10 December 2015 for Orion at 14; and Evidence in chief of
Ainsley McLeod, 10 December 2015 for Transpower at 20.
33 27220086_2.docx
Is it appropriate to include a definition of 'regenerating indigenous vegetation'
and to allow for this as a permitted activity, in order to provide certainty that
grazing can continue within an SES?
10.14 Brent Thomas71
for Willesden Farms Limited has sought the inclusion
of a new definition for 'regenerating indigenous vegetation', and a
related permitted activity rule. The Council does not support the
inclusion of this definition or rule. As outlined in Ms Hogan's rebuttal
evidence,72
providing for such an activity within an SES would fail to
implement Policy 2(a). Further, outside of an SES on Banks
Peninsula, the addition would be unnecessary, as Rule 9.1.2.2.1 P3
then provides for clearance of indigenous vegetation, if specified
thresholds are met. In addition, there are various provisions that
provide for clearance for 'improved pasture' outside of an SES.
Should the objectives and policies refer to 'biodiversity values and ecosystem
functions?
10.15 There was some disagreement about the inclusion of this wording in
the Proposal. For instance, the Crown sought to have "and
ecosystem functions" removed from Policy 2, on the basis that it
considered the phrasing could be used to downgrade the values of a
site where it was deemed to have poor ecological functioning despite
being significant.73
However, as outlined in the rebuttal evidence of
Ms Hogan, the retention of the term in Policy 2 would provide a
qualifier as to the effects of removing vegetation beyond biodiversity
values.74
Discussions between parties on this matter are ongoing.
Should Policy 2(a) include reference to 'no net loss'?
10.16 Fulton Hogan75
raised concerns with the requirement in Policy 2(a)
that there be no adverse effects of the removal of indigenous
vegetation within an SES, on the grounds that it would effectively
71 Brent Thomas, Willesden Farms Ltd #3698.10. 72 Rebuttal evidence of Deborah Hogan, 18 December 2015, at 9.7. 73 Evidence in chief of Anna Cameron, 10 December 2015, at 7.10. 74 Rebuttal evidence of Deborah Hogan, 18 December 2015, at 3.6. 75 #3482.
34 27220086_2.docx
prohibit all removal. Fulton Hogan considers that 'no net loss' or 'net
loss' should be used instead of 'adverse effects'.
10.17 The Council is not opposed in principle to a more enabling policy, but
has concerns that substituting 'no net loss' may be inconsistent with
the NZCPS, which requires that adverse effects be avoided.76
Discussions between parties as to wording that is more enabling than
the status quo, but consistent with the NZCPS, are ongoing.
Is the wording in Policy 5 and Appendix 9.1.4.5 consistent with best practice?
10.18 In evidence generally supporting Policy 5, Forest and Bird77
suggested a number of minor amendments to the Biodiversity
Offsetting Framework in Appendix 9.1.4.5, in order to achieve better
consistency with international and national best practice. The
majority of these amendments have been reflected in the revised
proposal. In the Council's submission, Policy 5 and the Framework
are consistent with best practice.78
Should the activity status for vegetation clearance at Templeton Golf Course be
changed from non-complying to restricted discretionary?
10.19 Fulton Hogan’s submission originally sought the removal of
SES/LP/15 from the site at the Templeton Golf Course. This relief is
not supported by Dr Shadbolt, who considers that the indigenous
vegetation on the site clearly meets the criteria for identifying it as an
SES.79
By memorandum dated 18 December 2015, Fulton Hogan
confirmed that it is no longer seeking deletion of the SES.
10.20 Fulton Hogan’s 18 December 2015 memorandum confirmed that the
issue to be determined in relation to the Templeton Golf Course SES
is the appropriate activity status for clearance of vegetation within the
SES. Fulton Hogan seeks that the status be "down-graded" from
non-complying to restricted discretionary. In the Council's
submission, restricted discretionary activity status is not appropriate,
76 Rebuttal evidence of Deborah Hogan, 18 December 2015, at 3.15. 77 #3614. 78 Rebuttal evidence of Deborah Hogan, 18 December 2015, at 3.29. 79 Evidence in chief of Antony Shadbolt, 2 December 2015 at 9.18.
35 27220086_2.docx
as it would be inconsistent with the Policy direction set out in
Topic 9.1, and would not give effect to the CRPS and section 6(c) of
the RMA.
Should part of SES/LP/16 be deleted as sought by Norak Properties #3216?
10.21 At the time of presenting these submissions, discussions are ongoing
between the parties, and the Council hopes to be able to provide the
Panel with an update this week.
36 27220086_2.docx
TOPIC 9.2: OUTSTANDING NATURAL FEATURES AND LANDSCAPES,
SIGNIFICANT FEATURES AND LANDSCAPES AND AREAS OF NATURAL
CHARACTER IN THE COASTAL ENVIRONMENT
11. TOPIC 9.2: THE PROPOSAL
11.1 An overview of the key features of Topic 9.2 is set out in the
evidence in chief of Ms Ferguson.80
In summary, the key features
are:
(a) Outstanding Natural Features, Outstanding Natural
Landscapes, Significant Features and Rural Amenity
Landscapes are identified on overlays in the planning maps;
(b) the landward extent of the Coastal Environment is shown as
a blue line on the district plan maps. The extent of the
Coastal Environment was determined through multi-criteria
analysis with specialist ecology, coastal hazards and coastal
geology, landscape planning, parks and recreation, heritage
and planning input.81
Within the Coastal Environment, areas
of natural character, high (and very high) natural character
and outstanding natural character are proposed as overlays;
(c) the areas identified in these overlays are subject to
objectives, policies and rules that apply in addition to the
underlying zoning. The purpose of these provisions is to
protect or manage effects on the identified qualities of these
features and landscapes. A list of these qualities is
identified in the policies. Additional rules, with activity status
ranging from restricted discretionary to non-complying, then
apply to activities within the overlays that have the potential
to adversely affect the qualities of these landscapes and
features; and
(d) with respect to the natural character of "wetlands, and lakes
and rivers and their margins", the topic now includes an
80 Evidence in chief of Shirley Ferguson, 2 December 2015 at 4.5 table 1. 81 Evidence in chief of Shirley Ferguson, 2 December 2015 at 2.2 – 2.4.
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objective and policy in relation to this in response to the
Crown's submissions.82
As agreed at mediation,83
no rules
are to be included in relation to the natural character of
wetlands, lakes and rivers and their margins, as these areas
have not been mapped or assessed.84
12. TOPIC 9.2: KEY CHANGES SINCE NOTIFICATION OF PROPOSAL
12.1 The Council wishes to draw the Panel’s attention to two key changes
made to the proposal since its notification. These changes relate to
the following issues from the Statement of Issues:
(a) The level of recognition to be given to farming and
recreation and conservation activities, within the overlay
areas.85
(b) Should natural character in the coastal environment be
mapped as an overlay? On Banks Peninsula should this
replace the significant landscape overlay?86
12.2 Based on the evidence that has been filed, the Council understands
that there is broad agreement about these issues.
The Level of Recognition to be given to Recreation and Conservation
Activities, within the Overlay Areas
12.3 A key issue raised by the Rod Donald Banks Peninsula Trust #3469
and Akaroa Civic Trust #3627 was the level of recognition given to
recreation and conservation activities located within the overlay
areas.
12.4 The Council agrees that recognition of recreation and conservation
activities in these areas is important, because these activities are an
established part of the environment, and enable the use and
82 In response to a submission from Forest and Bird and from the Crown. 83 Mediation report in relation to 24 November 2015 mediation, at page 11. 84 Evidence in chief of Sarah Ferguson, 10 December 2015 at 6.1 – 6.5. 85 Issue 3(h) – farming and Issue 3 (i) – conservation and recreation, of the Updated Statement of Issues
dated 29 October 2015. 86 Issue 3(b) of the Updated Statement of Issues dated 29 October 2015.
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enjoyment of these areas by members of the public. However,
equally, it is important that the size and scale of these activities is
such that the activities do not compromise the important qualities of
these areas, which the provisions seek to protect.
12.5 The Council also notes that many of the areas which are most used
for recreation and conservation activities are zoned open space
natural. The rules of that zone apply in addition to the rules in
overlays addressed under this topic. Accordingly, it will be important
to ensure that there is co-ordination between the rules and controls
that apply through the overlays that are the subject of this topic, and
the rules and controls that apply through the underlying open space
zoning (which will be heard by the Panel in February).
12.6 Ms Ferguson in her rebuttal evidence has proposed a number of
amendments to the provisions, in response to the submission by the
Rod Donald Banks Peninsula Trust and Akaroa Civic Trust.87 In
summary, these amendments provide for the establishment of
tramping huts with footprints equal to or less than 100m2, within
overlay areas, with gradation in activity status depending on the
sensitivity of the landscape.
12.7 The amendments are limited to being in relation to "tramping huts"
rather than providing for a broader range of recreation facilities and
activities, or guest accommodation. This is on the basis that tramping
huts are an anticipated and familiar feature in these areas. However,
due to the much broader definitions of recreation activities and guest
accommodation (which includes a wide range of commercial and
ancillary activities), providing for these activities in the same way
would not be appropriate.
12.8 The Council is continuing to work with submitters in relation to these
amendments.
87 Rebuttal evidence of Shirley Ferguson, 18 December 2015 at 3.1 – 3.23.
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Should natural character in the Coastal Environment be mapped as an
Overlay? On Banks Peninsula should this replace the significant
landscape overlay?
12.9 The maps in the proposal as notified identified the extent of the
coastal environment and areas of outstanding natural landscapes and
high natural character. The notified version of the proposal includes
objectives, policies and rules in relation to areas of natural character
(areas assessed as having at least moderate natural character but
not meeting the thresholds for high natural character, or for an
outstanding natural landscape). However, other areas of natural
character in the coastal environment were not specifically identified in
the planning maps.
12.10 As noted in Ms Pfluger’s evidence,88
the Council lodged a submission
seeking that the planning maps be amended to identify areas of
natural character. While on the notified version of the planning maps,
it is possible to identify areas of natural character by a process of
elimination (by identifying areas between MHWS and the coastal
environment line that are not high natural character, outstanding
natural landscapes, or urban or settlement zone), the Council
considers it would improve the usability of the plan if these areas
were mapped. Ms Pfluger also confirms89
her view that the natural
character overlay should be in addition to, rather than in substitution
for, the landscape overlays in the Banks Peninsula coastal
environment.
12.11 In the Council's submission, it is important that where rules and
controls are proposed to apply to certain properties, this is clearly
identified through the planning maps to ensure that there is certainty
around the application of the rules, and to assist plan users. The
Council therefore seeks the Panel’s confirmation of the Council’s
submission seeking that areas of natural character within the coastal
environment be mapped.
88 Evidence in chief of Yvonne Pfluger, 2 December 2015 at 9.1-9.4. 89 Evidence in chief of Yvonne Pfluger, 2 December 2015 at 9.4.
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13. TOPIC 9.2: KEY AREAS OF DISAGREEMENT
13.1 In relation to Topic 9.2, in addition to the changes noted above, a
number of site specific submissions seeking amendments to the
boundaries of overlays have been resolved. There have also been
refinements to the plan provisions relating to the overlays. These are
detailed in the evidence of Ms Ferguson and Ms Pfluger, and will not
be addressed further in these submissions.
13.2 Since the filing of rebuttal evidence, Christchurch Gondola Ltd and
the Council have agreed to an amendment to 9.2.3.2 and 9.2.3.2.3,
which is shown below and will be confirmed by Ms Ferguson when
she presents her evidence:
Rule 9.2.3.2 Table 1: ** Exemption – ONL 38.2 Port Hills – Christchurch Gondola e. RD7 – Where a rural tourism facility is co-located with the Christchurch Gondola on Mount Cavendish Lot 3 DP 619776 and Lot 2 DP 57455, a new building with a footprint ≤100m2 shall be a restricted discretionary activity RD18 [4000, Christchurch Gondola Ltd].
Rule 9.2.3.2.3 Matters of Discretion
Activity Matters of Discretion
RD1 to RD8 and RD 17
and RD18 – Buildings
9.2.4.1. Outstanding Natural Features and
Outstanding Natural Landscapes matters a. to
i.
13.3 The remaining key areas where there is disagreement in relation to
Topic 9.2 can be summarised as follows:
(a) Should the provisions in this topic be restructured and
reformatted as sought by the Crown in order to achieve
consistency with higher order planning documents? In
particular:
(i) Should the provisions in this topic be separated
into 9.2 Natural Character and 9.3 Natural Features
and Landscapes?
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(ii) Should descriptive text be removed from the
policies?
(iii) Should the rules be formatted as elsewhere in the
pRDP?
(b) Reference to enhancement in significant features and
landscape objective and policies.
(c) Treatment of utilities under the provisions (this is addressed
later in these submissions in relation to the 'other
proposals').
13.4 These matters are outlined further below.
Should the provisions in this topic be restructured and reformatted as sought by
the Crown in order to achieve consistency with higher order planning
documents?
13.5 Ms Cameron’s evidence for the Crown seeks the restructuring of the
provisions in this topic, including its separation into 9.2 Natural
Character and 9.3 Natural Features and Landscapes and the
reformatting of the rules.90
The Council considers these changes are
unnecessary, as outlined in Ms Ferguson’s rebuttal evidence at
paragraphs 4.3 to 4.12 and as further discussed above under the
summary of legal issues.
Reference to enhancement in significant features and landscape objective and
policies
13.6 Ms Cameron’s evidence for the Crown seeks the reinstatement of the
word “enhance” in Objective 9.2.1.2 and Policies 9.2.2.3 and 9.2.2.4,
in relation to Significant Features and Rural Amenity Landscapes.91
As outlined in Ms Ferguson’s evidence,92
her view is that a
requirement to enhance these features and landscapes would be
unduly onerous. This issue is discussed further above in relation to
the legal issues for the Panel’s determination.
90 Evidence in chief of Anna Cameron, 10 December 2015 at 4.10 – 4.12. 91 Evidence in chief of Anna Cameron, 10 December 2015 at 8.13 – 8.14. 92 Evidence in chief of Anna Cameron, 10 December 2015 at 6.53 – 6.56.
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TOPIC 9.3: HISTORIC HERITAGE
14. TOPIC 9.3: THE PROPOSAL
14.1 An overview of the key features of Topic 9.3 is set out in the evidence
in chief of Ms Rachlin.93
In summary, the key features are:
(a) Historic heritage places are identified in the Schedules at
Appendices 9.3.6.1.1 to 9.3.6.1.3 of the Plan. The Policy
framework and provisions protect these scheduled places,
while still enabling forms of continued use and adaptation
over time. These sites are proposed for inclusion on the
basis that they meet the threshold for either a High
Significance (Group 1) or Significant (Group 2) listing
Heritage places comprise heritage items, heritage settings,
or a combination of both. The Schedules contain a range of
details including the location (street address), a description /
official name for the heritage item / setting, relevant aerial
and planning map details, and information from the HNZ
Pouhere Taonga List.
(b) Of the places scheduled in the operative plans,
approximately 25% were lost through the earthquakes.
Through the pRDP (and the changes to methodology for
selecting places for scheduling) an additional 28 places
were proposed for listing.
(c) Scheduled items are categorised as Group 1 'highly
significant' or Group 2 'significant'. Additional regulation
applies to Group 1 places, given their importance.
(d) Heritage areas were not assessed for significance as part of
the pRDP review, however the proposal includes policy
direction for future work for heritage areas (Policy 9.3.2.4).
93 Evidence in chief of Caroline Rachlin, 18 December 2015 at 5.1 to 5.23.
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15. TOPIC 9.3: KEY AREAS OF DISAGREEMENT
15.1 A significant number of issues relating to Topic 9.3 have been
resolved through informal discussions and mediation between the
Council and submitters. These agreements are addressed in the
planning evidence of Ms Caroline Rachlin, and are reflected in
amendments made to the latest revised proposed dated 17 January
2016.
15.2 In addition, a number of site specific submissions seeking
amendments to heritage listings have been resolved. These are
detailed in the evidence in chief94 and rebuttal evidence of
Ms Caroline Rachlin and will not be addressed further in these
submissions.
15.3 The remaining key areas where there is disagreement in relation to
Topic 9.3 can be summarised as follows:
(a) Was the methodology for determining what are Significant
Historic Heritage items and settings appropriate?95
(b) Should archaeological sites be included in the Schedule?96
(c) Should there be identification of Heritage Areas within the
Plan?97
(d) Should there be one or two groups of heritage items?98
(e) Should the rules for demolition be amended from non-
complying activity status to a less restrictive activity
status?99
94 Evidence in chief of Caroline Rachlin, 18 December 2015, Attachment A. 95 Issue 4(b) of the Updated Statement of Issues, dated 29 October 2015. 96 Issue 4(c) of the Updated Statement of Issues, dated 29 October 2015. 97 Issue 4(g) of the Updated Statement of Issues, dated 29 October 2015. 98 Issue 4(i) of the Updated Statement of Issues, dated 29 October 2015. 99 Issue 4(l) of the Updated Statement of Issues, dated 29 October 2015.
44 27220086_2.docx
(f) Should provisions recognise use of conservation plans and
can certification processes be utilised?100
(g) Should the plan include provisions for the protection of pre-
1940 buildings?101
(h) To what extent should the provisions be in alignment with or
take account of the principles of the ICOMOS Charter and
Heritage New Zealand best practice guidance?102
(i) To what extent are the provisions for the management of
heritage items appropriate, and sufficiently enabling?103
(j) Whether reconstruction and restoration should be a
permitted activity in the central city in particular;
(k) Inclusion of standards for repairs and maintenance in Rule
9.3.3.2.1 P1 and P2;
(l) Amendments to a number of objectives and policies and
other provisions, as discussed in the evidence of
Ms Rachlin,104 particularly:
(i) Objective 9.3.1;
(ii) Policy 9.3.2.1;
(iii) Policy 9.3.2.8; and
(iv) Whether to include a reference to heritage settings
in the 'How to Use the Rules' section at 9.3.3.8;
100 Issue 4(q) of the Updated Statement of Issues, dated 29 October 2015. 101 Issue 4(x) of the Updated Statement of Issues, dated 29 October 2015. 102 Combined Issues 4(n), (o), (p), (t), (k) of the Updated Statement of Issues, dated 29 October 2015.
These issues are outlined and discussed in section 13 of Caroline Rachlin's evidence in chief, dated 18 December 2015.
103 Issue 4(n) of the Updated Statement of Issues, dated 29 October 2015. 104 These are discussed in the rebuttal evidence of Caroline Rachlin dated 15 January 2015.
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(m) Matters relating to definitions.105
In particular, disagreement
remains in relation to the wording of the following definitions:
(i) 'Heritage investigative and Temporary works';
(ii) 'Heritage Item':
(iii) 'Heritage Setting';
(iv) 'Heritage Values';
(v) Historic Heritage Place;
(vi) Maintenance; and
Disagreement also remains about whether the following new
definitions should be added. The Council's reasons for not
including them are set out in the evidence of Ms Rachlin:106
(vii) Partial demolition; 107
(viii) Heritage Area;
(ix) 'Heritage';
(x) 'Conservation plan';
(xi) 'Cultural Heritage'; and
(xii) 'Cultural Heritage Sites'.
Issues 4(b) Was the methodology for determining what are Significant Historic
Heritage items and settings appropriate?108
15.4 Submitters109
have raised issues relating to several aspects of the
methodology for determining significant heritage items and settings
for inclusion in the plan. These issues are discussed in the evidence
of Ms Rachlin and Ms Ohs. The issues include:
(a) Issue 4(b)(i): Whether interiors of heritage items should be
included in listings. The Council's position is that it is
important and appropriate to protect interiors through the
plan, and that this has been achieved by scheduling items in
their entirety. The Council does not consider interiors
105 Issue 4(s) of the Updated Statement of Issues, dated 29 October 2015. 106 Evidence in chief of Caroline Rachlin at paragraph 16.19 – 38. 107 Evidence in chief of Caroline Rachlin at paragraphs 16.17 - 18; and Rebuttal evidence of Caroline Rachlin
at paragraph 12.6. 108 Evidence in chief of Caroline Rachlin, 18 December 2015 at 8.1 – 8.17. 109 HNZ (#3674.42); R and L Holloway (#3214); Crown (#3721).
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should be specifically listed (eg in an additional column in
Appendix 9.3.6.1 as requested by HNZ) for the reasons set
out in the evidence of Ms Rachlin.110
(b) Issue 4(b)(v): Whether international and national
significance should be taken into account in the
methodology. Ms Ohs has confirmed111
that these matters
have been taken into account, and has recommended a
change to the description of the methodology to reflect this.
Ms Rachlin notes112
that there is no need to amend the
policies in this regard.
(c) Issue 4(b)(ii): The approach to determining the extent of
heritage settings around heritage items. For the reasons set
out in the evidence in chief of Ms Ohs113 and Ms Rachlin.114
the Council's position can be summarised as follows:
(i) It is appropriate to provide protection for settings in
the plan.115 As outlined in the evidence in chief of
Ms Ohs, this approach is considered consistent
with legislation and best practice.
(ii) A review of settings is not required because non-
contributing items are not unduly captured by the
provisions.116
(iii) It is not appropriate to extend heritage settings
further onto adjoining properties.117
15.5 As noted above, site specific submissions seeking adjustment to
heritage items and settings are set out in Attachment A to the
110 Evidence in chief of Caroline Rachlin, 18 December 2015 at 8.2 - 8.6; rebuttal evidence of Caroline
Rachlin, 15 January 2015 at 4.30. 111 Evidence in chief of Amanda Ohs, 2 December 2015 at 5.31. 112 Evidence in chief of Caroline Rachlin, 18 December 2015 at 6.15. 113 Evidence in chief of Amanda Ohs, 2 December 2015 at 5.36 - 5.53. 114 Evidence in chief of Caroline Rachlin, 18 December 2015 at 8.7 – 8.14. 115 R and L Holloway (#3214) seek that heritage settings in general should be excluded from the plan. 116 Heritage New Zealand seeks a review of settings to ensure non-contributing items are not unduly captured. 117 This matter is discussed under issue 4(o) in section 13 of the evidence in chief of Ms Rachlin in response
to the Crown submission.
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evidence in chief of Ms Rachlin, and further discussed in her rebuttal
evidence.
15.6 Another issue raised in relation to methodology is Issue 4(b)(iii): As
explained in the evidence of Ms Ohs,118 the assessment considers
damage from the earthquakes to the integrity of the item, including its
intactness. The extent of damage is recorded in the statements of
significance in relation to heritage fabric and value, and discussed
primarily under Historical and Social criteria. In some cases, this
assessment of earthquake damage has resulted in buildings no
longer meeting the threshold for listing. Where submitters have
raised issues about site specific damage, this has been investigated
and the listings updated where appropriate.119
Issue 4(c) Should archaeological sites be included in the Schedule?
15.7 Heritage New Zealand Pouhere Taonga (#2674) seeks the inclusion
of archaeological sites in the Schedule. Ms Rachlin considers it is not
appropriate or necessary to schedule archaeological sites in the plan
as these are already subject to protection under the Heritage New
Zealand (Pouhere Taonga) Act 2014.120
As outlined by Ms Wykes,
there are also issues with the accuracy of the Archaeological
Association data, which means that it would not be appropriate to
simply adopt that data for use in the pRDP.121
Issue 4(g) Should there be identification of Heritage Areas within the Plan
(including the Heritage New Zealand recognised areas for Akaroa and Lyttelton),
and appropriate policies and rules to manage development in these areas?
15.8 Heritage areas are not included in the notified Proposal, which
instead includes Policy 9.3.2.4 setting out the Council’s intention to
identify and assess heritage areas for protection. Submitters122
have
sought the inclusion of heritage areas within the pRDP, although it is
118 Evidence in chief of Amanda Ohs, 2 December 2015 at 27. 119 For example in relation to 217 Armagh Street, in response to a submission by Girl Guiding New Zealand (#3346). 120 Evidence in chief of Caroline Rachlin, 18 December 2015 at 6.39. 121 Evidence in chief of Fiona Wykes, 2 December 2015 at 6.3 and 6.4. 122 Rod Donald Trust (#3469.53 and #3469.54); Akaroa Civic Trust (3627.23); Suky Thomson (#3665.); and
the Crown (#3721.429); Lyttelton/Mt Herbert Community Board (#3716.15); and HNZ Pouhere Taonga #3674.17.
48 27220086_2.docx
also recognised (eg by Heritage New Zealand) that there is a need to
carry out up to date assessments of heritage areas that are contained
within the operative district plans. In the absence of such
assessments, and on the basis of the policy direction to develop this
as future work, Dr McEwan123 and Ms Rachlin have concluded that
there is not a sufficient basis to include such areas in the pRDP at
this stage.
Issue 4(i) and Issue 4(b)(iv): Should there be only one group of heritage items,
given there is limited differentiation in activity status between the two groups?124
15.9 As discussed in the evidence in chief of Ms Rachlin, the Crown seeks
that the Plan uses only one category of heritage listing instead of the
two (High Significance and Significant) that are in the Proposal as
notified. Ms Rachlin does not support changing to a one group
approach, as she considers the two group categorisation provides an
appropriate way to manage heritage items while recognising there are
places of overall higher significance in the district. As noted below,
Ms Rachlin now proposes that there be a distinction in activity status
for demolition between the two categories of heritage and remains of
the view that the two group approach and the planning framework on
a two group basis are appropriate.
Issue 4(l): Should the rules for demolition be amended from non-complying
activity status to a less restrictive activity status?125
15.10 Several submissions relate to the activity status for demolition of
heritage items, which under Rule 9.3.3.2.7 as notified, is currently
non-complying status for both Group 1 and Group 2 items.126 Broadly,
these submissions either seek a change to the activity status for listed
heritage items generally, or in relation to individual heritage items.
15.11 Ms Rachlin supports the submission by CGL and Canterbury Jockey
Club that the demolition of Group 2 buildings be a discretionary
activity rather than non-complying as it would better reflect the
123 Evidence in Chief of Dr Ann McEwan, 2 December 2015 at 7.15. 124 Evidence in chief of Caroline Rachlin, 18 December 2015 at 9.1 – 9.4. 125 Evidence in chief of Caroline Rachlin, 18 December 2015 at 10.1 -10.9. 126 Historic Places Canterbury (#3675.17); HNZ (#3674.25), and Restore Christchurch Cathedral Group
Incorporated (#3279); CGL (#3602.270) and the Canterbury Jockey Club (#3414.23).
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distinction between these categories while still retaining the Council’s
ability to consider a wide range of values in relation to any consent
application for demolition.127
15.12 In relation to Rule 9.3.2.2.1 P8, which provides for the demolition or
deconstruction of heritage items in buildings that have a section 38
Notice under the Canterbury Earthquake Recovery Act as a permitted
activity, some submitters have opposed the inclusion of this rule.
Other submitters have sought the removal of the consultation
standard in (b) and for an end date to be inserted into (a). As
explained in the evidence in chief of Ms Rachlin at paragraph 10.9,
she considers the notified rule is appropriate.
Site specific requests for activity status for demolition
15.13 There are also submissions seeking changes in activity status for
demolition in relation to specific buildings. Ms Rachlin addresses
these in paragraphs 11.1-11.14 of her evidence in chief. In summary:
(a) Mr and Mrs Gaba (#3639) seek controlled or restricted
discretionary activity status for demolition of their Group 2
listed dwelling at 25 Helmores Lane, as alternatives to the
delisting of the dwelling. Ms Rachlin remains of the view128
that the default activity status (now discretionary for Group 2
items) is appropriate.
(b) Tailorspace Property Limited (#3718) seeks controlled or
restricted discretionary activity status for demolition of the
Group 1 listed Public Trust building at 152 Oxford Terrace,
as alternatives to the delisting of the building. Ms Rachlin
has concluded129
that controlled activity status for demolition
of all except the façade may be appropriate, subject to
further development of this option, but remains of the view
that it would not be appropriate to apply controlled activity
status to the demolition of the building in its entirety.
127 Evidence in chief of Caroline Rachlin, 18 December 2015 at 10.6 – 10.7. 128 Evidence in chief of Caroline Rachlin, 18 December 2015 at 11.2. 129 Evidence in chief of Caroline Rachlin, 18 December 2015 at 11.6.
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(c) The Roman Catholic Bishop of the Diocese of Christchurch
(#3692.21) seeks controlled activity status for the demolition
of the Cathedral of the Blessed Sacrament. Ms Rachlin has
concluded130
that controlled activity status would be
appropriate so long as there is a section 38 notice in place in
relation to the Cathedral.
(d) The Church Property Trustees (#3610) seek controlled
activity status for the demolition of the ChristChurch
Cathedral. Ms Rachlin has concluded131
that controlled
activity status would be appropriate so long as there is a
section 38 notice in place in relation to the Cathedral.
Issue 4(q) Should the provisions recognise use of conservation plans (e.g. in
Matters of Discretion) and Issue 4(r) Can certification processes be utilised?
15.14 The use of expert certification and conservation plans in the pRDP to
create additional flexibility in the management of heritage items has
been sought by the Crown (#3721). These issues were discussed at
mediation on 18 November 2015, where it was agreed that there is
merit in the concepts, but that further detail is required in respect of
their implementation. In the absence of the further development of
this concepts to a stage that can be shown to be workable, Ms
Rachlin’s evidence132
is that it is not appropriate to include a
certification or conservation plan process in the plan at this stage.
15.15 Ms Rachlin’s evidence in chief133
records several issues that would
need to be resolved before such measures could be included in the
Plan (including certainty, reasonableness, the availability and role of
certifiers, and the cost of preparing conservation plans). This matter
is also discussed in paragraphs 6.4 - 6.6 above.
130 Evidence in chief of Caroline Rachlin, 18 December 2015 at 11.10 131 Evidence in chief of Caroline Rachlin, 18 December 2015 at 11.14. 132 Evidence in chief of Caroline Rachlin, 18 December 2015 at 7.2. 133 Evidence in chief of Caroline Rachlin, 18 December 2015 at 7.2.
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Issue 4(x): should the plan include provisions for the protection of pre-1940
buildings?
15.16 It has been submitted [#3955.21 and #3955.2] that pre-1840s
buildings should be protected in the pRDP. Ms Fiona Wykes
addresses the heritage values of these buildings and notes134
that
age is no guarantee of heritage value, and Mr Doug Fairgray
addresses the economic implications of listing all such buildings.
Based on their evidence, Ms Rachlin’s evidence135
is that a blanket
approach to protecting pre-1940 buildings is not appropriate.
Issue 4(m): To what extent should the provisions be in alignment with or take
account of the principles of the ICOMOS Charter and Heritage New Zealand best
practice guidance?
15.17 There was general agreement reached at mediation on 18 November
2015 that ICOMOS and Heritage New Zealand principles are already
taken into account in the pRDP and that the pRDP does not need to
fully incorporate the principles. Heritage New Zealand is recorded as
maintaining the view that a simplified version of the guidelines would
be useful for the pRDP.
15.18 This issue is addressed by Ms Gillies136
who has made
recommendations for some amendments to the relevant definitions in
the pRDP definitions to improve alignment. Ms Rachlin concludes137
that the way in which these documents have been incorporated into
the pRDP is appropriate.
134 Evidence in chief of Fiona Wykes, 2 December 2015 at 8.2. 135 Evidence in chief of Caroline Rachlin, 18 December 2015 at 7.4. 136 Evidence in chief of Jackie Gillies, 3 December 2015 at 4.1 – 4.37. 137 Evidence in chief of Caroline Rachlin, 18 December 2015 at 12.5.
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Issue 4(s): Are the provisions sufficiently clear in defining different components
of heritage?
15.19 A significant number of the definitions from 13.17 are identical to
Chapter 2. It is submitted that a single definition for each term is
appropriate.138
15.20 The Crown has sought (in respect of Proposal 2 and Proposal 13.17)
to "align heritage definitions with best practice guidance from the
ICOMOS Charter and the HNZ guidance documents, and ensure
those definitions are also consistent with the CCRP." As outlined in
the evidence of Ms Rachlin,139 while it is important for these
documents to inform the definitions, the Council considers it is not
necessary to strictly align with them.
Whether reconstruction and restoration should be permitted activities in the
central city in particular
15.21 The Crown submission sought that reconstruction and restoration of
heritage items be provided for as permitted activities.140 The rebuttal
evidence of Ms McIntyre has subsequently proposed that
reconstruction and restoration be permitted activities within the
Central City only (and controlled activities elsewhere). This issue is
also linked to the question of whether certification could be used as a
mechanism for lowering the activity status for these activities.
15.22 The Council agrees with Ms McIntyre that it is appropriate for
reconstruction and restoration to have the same activity status.
However, at this stage (and subject to further consideration of
certification) the Council considers it is appropriate for both
reconstruction and restoration to be controlled activities, including
within the Central City.141 This position is based on evidence of Ms
138 Evidence in chief of Caroline Rachlin, 18 December 2015 at 16.2, at page 66. Please note that due to a numbering error in the evidence in chief of Ms Rachlin, there is duplicate paragraph numbering for some paragraphs in section 16. 139 Evidence in chief of Caroline Rachlin, 18 December 2015 at 16.4 – 16.5, at page 66. 140 Whereas the notified Rule 9.3.3.2.2 provides for controlled activity status for reconstruction. Restoration is a restricted discretionary activity (as it is included in the definition of alteration of a heritage item). 141 Rebuttal evidence of Caroline Rachlin, 15 January 2015 at 4.22.
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Wykes142 that there are risks to heritage values in making
reconstruction a permitted activity.
Issue 4(p): Standards for repairs and maintenance in Rule 9.3.3.2.1 P1 and P2
15.23 In relation to the maintenance and repair of heritage items,143 several
submissions seek changes to Rule 9.3.3.2.1 P1 and P2 as notified.
These matters are addressed in the evidence of Ms Wykes144 and
Ms Rachlin.145
15.24 In the Council's submission, it is appropriate to retain these standards
for repair and maintenance, even though there are not equivalent
standards in the CCRP, to further assist in the protection of heritage
fabric.146
142 Evidence in chief of Fiona Wykes, 2 December 2015 at 7.7 - 7.20. 143 Issue 4(p) in updated statement of issues. 144 Evidence in chief of Fiona Wykes, 2 December 2015 at 7.21 - 7.28. 145 Evidence in chief of Caroline Rachlin, 18 December 2015 at 13.2-13.8; and rebuttal evidence of Caroline
Rachlin, 15 January 2016 at 11.8. 146 Rebuttal evidence of Caroline Rachlin, 15 January 2016 at 4.23 - 4.24.
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TOPIC 9.4: SIGNIFICANT TREES
16. TOPIC 9.4: THE PROPOSAL
16.1 An overview of the key features of Topic 9.4 is set out in the evidence
in chief of Ms Rachlin.147
In summary, under the pRDP trees may be
protected in two ways:
(a) Scheduled trees: Trees on private land that have been
assessed as meeting selection criteria are listed on the
Trees Schedules, and are subject to the rules in the pRDP;
and
(b) Public realm trees: Trees in the public realm that fall
outside of permitted activity rules P2 and P3 in 9.4 are
subject to blanket provisions in 9.4 (ie pruning and felling are
restricted).
Scheduled trees
16.2 The trees on private land that are listed in the Operative Plans were
assessed under the Christchurch Tree Evaluation Method (CTEM).
Then selection criteria were applied to the assessed trees to
determine which ones qualified as significant. Some trees were then
subject to a further assessment to determine whether they had
exceptional values. Significant trees and those with exceptional
values were then included in the schedule.
16.3 In the notified proposal, the selection criteria were set so that rather
than rolling over all scheduled trees from the Operative Plans, only
the best trees were scheduled. However, during mediation on
16 December 2015 it was agreed between the Council and some
submitters148
that the selection criteria would be amended to allow for
a larger number of trees to be scheduled, due to concerns that some
of the trees that did not meet the selection criteria were significant
147 Evidence in chief of Caroline Rachlin, 18 December 2015 at section 17. 148 Notable Tree Trust #3618, Civic Trust #3700, Helen Lowe #3211, New Zealand Arboricultural Association
#3278, Royal New Zealand Institute of Horticulture and UNITEC #3287, New Zealand Institute of Landscape Architecture #3566, Peterborough Village #3233, Spreydon/Heathcote Community Board.
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enough to warrant protection, and in light of the fact that the Council
had not been able to carry out full exceptional value assessments in
the time available. Details of this mediated agreement are set out in
Mr Graham's rebuttal evidence at section 4.
16.4 For completeness, we note that not all submitters who had expressed
an interest in the tree assessment methodology and selection criteria
attended mediation.149
Accordingly, confirmation will be needed from
those submitters about whether the mediated agreement resolves
their concerns.
16.5 As noted in paragraph 4.2 of Mr Graham's rebuttal evidence, this
adjustment of the selection criteria has resulted in the number of
individually scheduled trees increasing from 404 in the notified
proposal to 1196, and the number of groups of trees increasing from
4 to 20.
16.6 While assessment of private trees was limited to those listed in the
Operative Plans, it is the Council's intention to continue to identify
trees that should be scheduled.150
This is provided for by policy
9.4.2.1(d) in the Revised Proposal.
Public realm protection
16.7 The second means of protecting trees is through public realm
protection. The "public realm" for the purpose of these rules includes
parks, public open space and road corridors in Christchurch City,
excluding road corridors in the Central City and State highway
corridors. It also includes part of the road corridor on Beach Road,
Akaroa.
16.8 Pruning of trees in the public realm is managed by permitted activity
standards, and felling is permitted unless the tree meets specified
height thresholds,151
is in a Character Area, is a particular listed
149 In particular, Mark Belton (#3410), John Thornton (#3600), Michael Ostash (#3661), Walter Fielding-
Cotterell (#3628) and Annette Wilkes (#3974). 150 Evidence in chief of Caroline Rachlin, 18 December 2015 at 19.6. 151 6 metres for trees in road corridors and a 10 metres for trees in public open spaces.
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species, or is in a waterway setback.152
The threshold for public
realm tree protection was set so that it protected trees that the
Council had invested in for safety reasons and for viability of trees as
a large publicly owned environmental and amenity asset.153
17. TOPIC 9.4: KEY AREAS OF DISAGREEMENT
17.1 A significant number of issues relating to Topic 9.4 have been
resolved through informal discussions and mediation between the
Council and submitters, and by amendments to the revised proposal
made in response to submitter evidence. These agreements are
addressed in the planning evidence of Ms Caroline Rachlin, and are
reflected in amendments made to the revised proposed of 17 January
2016.
17.2 The Council understands that the remaining key areas where there is
disagreement about the provisions of Topic 9.4 are as follows:
(a) Whether significant trees in the public realm should also be
scheduled in the Plan;
(b) Whether amendments to permitted activities are appropriate
in relation to:
(i) P1 (minor pruning): whether the activity should be
expanded to allow for works within the dripline of a
significant tree where it is necessary for works to a
heritage item, or for emergency works / safety
matters;154
(ii) P2: amendment to expand the list of 'exotic
species' for exclusion from being felled as a
permitted activity in the public realm;155
(iii) P2 amended to replace the reference to state
highway corridors with a cross reference to P4;
(iv) P2 and P3: clarification around the applicability of
P2 and P3 to the Central City;
152 Evidence in chief of Robert Graham, 3 December 2015 at 7.1. 153 Evidence in chief of Robert Graham, 3 December 2015 at 7.5. 154 Issues 5(i) and 5(n) of the Updated Statement of Issues dated 29 October 2015. 155 Issue 5(m) of the Updated Statement of Issues dated 29 October 2015.
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(v) P4: deletion or amendment to P4 to remove
matters that are considered unnecessary;156
(vi) P4: amendment so that trees greater than 10m are
protected in the Flat Land Recovery Zone;157
(vii) A new permitted activity for underground utilities in
the dripline of Significant Trees;158
(c) Whether amendments to restricted discretionary activities
are appropriate in relation to:
(i) RD4: inclusion of earthworks in RD4;
(ii) RD5: amendment to include a notification
requirement for Riccarton Bush;159
(iii) A new restricted discretionary activity to provide
explicit protection for pruning or felling associated
with maintenance of utilities;
(d) Whether Advice Note 9.4.3.1.4 (c) should be amended;
(e) Use of linear measurement rather than measuring via the
'dripline' of a tree;160
and
(f) Site specific requests.161
Public realm protection
17.3 The Council's view is that it is appropriate to protect trees in the public
realm through blanket provisions, so long as those trees meet a
threshold that makes those trees worthy of protection. The Crown's
submission opposed the notified proposal's approach to the public
realm provisions, but Ms McIntyre has indicated in section 14 of her
rebuttal evidence that the Revised Proposal has resolved some of her
concerns and that she now generally supports Topic 9.4 subject to
some suggested amendments. Other submitters, for example
156 Issue 5(i) of the Updated Statement of Issues dated 29 October 2015. 157 Issue 5(i) of the Updated Statement of Issues dated 29 October 2015. 158 Issue 5(k) of the Updated Statement of Issues dated 29 October 2015. 159 Issue 5(o) of the Updated Statement of Issues dated 29 October 2015. 160 Issue 5(k) of the Updated Statement of Issues dated 29 October 2015. 161 Issues 5(d) and 5(e) of the Updated Statement of Issues dated 29 October 2015.
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Lyttelton / Mt Herbert Community Board (#3716) and Hagley /
Ferrymead Community Board (#3660) also generally support the
public realm approach.
17.4 Mrs Lowe's evidence for the Christchurch Civic Trust and others162
seeks that trees in public areas that meet the selection criteria for
individual listings are also recorded on the schedules, notwithstanding
that they are likely to also already be protected through the public
realm. The Council does not support this approach, for the reasons
set out in the evidence of Robert Graham and Caroline Rachlin163
.
These reasons include that the public realm trees have not been
assessed under CTEM, and that scheduling those trees is
unnecessary as it would duplicate the protection already afforded to
those trees under the public realm provisions.
Amendments to permitted activity provisions
17.5 Some submitters164
have sought that P1 be amended to included
allowance for minor pruning of scheduled trees for emergency and
safety reasons. Ms Rachlin's evidence165
notes that some of these
amendments are already addressed by the provisions and that she
would need more information about what constitutes an emergency
situation in order to consider making that change.
17.6 Those submitters also seek that there is provision for the pruning of
trees to enable repairs to or to replace damaged or demolished
heritage items. The Council's concern is that it is unclear who would
determine whether the works are necessary to carry out the activities,
and additionally (if the provision is considered appropriate) whether it
is appropriate to include a provision for trees in relation to heritage
items and not other types of developments.166
162 #3700, 3618, 3566, 3233, 3287, 3278, 3270 and 3410. 163 Evidence in chief of Robert Graham, 3 December 2015 at 7.1 – 7.10; evidence in chief of Caroline
Rachlin, 18 December 2015 at 21.1 – 21.22; rebuttal evidence of Caroline Rachlin, 15 January 2015 at 16.2 – 16.3.
164 Roman Catholic Bishop of the Diocese of Christchurch and Alpine Presbytery, Church Property Trust (#3670.110 and #3670.111).
165 Evidence in chief of Caroline Rachlin, 18 December 2015 at 24.11 – 24.12. 166 Evidence in chief of Caroline Rachlin, 18 December 2015 at 24.11.
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17.7 P2 contains a list of exotic trees that are excluded (ie the permitted
activities cannot be carried out in relation to those trees as they are
protected through the public realm). Ms Lowe (#3211) has requested
two further exotic species be listed, however the Council is opposed
to this as one is already listed while the other is not a rare species (as
per the evidence of Mr Graham).167
17.8 Ms McIntyre for the Crown168
has sought that P2 be amended to
replace the reference to state highway corridors with a cross
reference to P4. As explained in Ms Rachlin's rebuttal evidence169
,
Ms Rachlin remains of the view that the present drafting approach is
clearer and more certain.
17.9 Ms McIntyre has also sought changes to the way Rules P2 and P3
exclude their applicability to the Central City.170
The Council
considers there is already sufficient clarity in the rules about this
matter.171
17.10 P4 is a general catch all provision that clarifies that if a tree is not
scheduled, nor in a public open space or park in Christchurch City, or
in a road corridor, then it is permitted to carry out minor pruning or
felling of that tree. The Crown sought deletion of P2 and P3, and if
that occurs, an amendment to P4 so that it no longer refers to the
Central City. Orion seeks deletion of P4 entirely, or that permitted
activity standards are stated. The Council's position is that the rule
should be retained to provide certainty to users that these works are
permitted.172
Hagley / Ferrymead Community Board (#3660) seek
that P4 also has reference to protection of trees greater than 10m in
the Flat Land Recovery Zone, the Council does not agree to this
amendment on the basis there is no justification for a greater level of
control in that zone.173
167 Evidence in chief of Robert Graham, 3 December 2015 at 9.4 – 9.5. 168 Evidence in chief of Sandra McIntyre, 13 January 2016 at 14.4(c). 169 Rebuttal evidence of Caroline Rachlin, 15 January 2015 at 17.3. 170 Evidence in chief of Sandra McIntyre, 13 January 2016 at 14.5. 171 Evidence in chief of Caroline Rachlin, 18 December 2015 at 24.15. 172 Evidence in chief of Caroline Rachlin, 18 December 2015 at 24.20. 173 Evidence in chief of Caroline Rachlin, 18 December 2015 at 24.26.
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17.11 Finally, a new permitted activity "P5" is requested by various utility
companies. That activity is to allow underground utilities in the
dripline of significant trees. The Council notes that the Utilities
Proposal 11 allows for these types of activities.174
The Council is
continuing to work with submitters in relation to the relationship
between Chapters 9 and 11.
Amendments to restricted discretionary activity provisions
17.12 The Council has sought to include reference to earthworks in RD4.
This was opposed by Carter Group on the basis that Chapter 8
already covers earthworks in the dripline of a tree. The Council's
view is that RD4 contains additional controls to those in Chapter 8 (for
example construction, storage of materials, vehicles and plant, and
the release, injection, or placement of chemicals or toxic substances)
and therefore the reference to earthworks is necessary as it provides
completeness (ie the reference confirms that earthworks are a
consideration rather than being silent on the matter).175
17.13 Riccarton House and Bush seek that RD5 (relating to activities in the
Riccarton Bush area) contain a requirement for them to be notified of
any applications under that provision. Although recognising the
sensitive and indigenous nature of the Riccarton Bush, the Council
considers there is no need for this notification requirement.176
17.14 Transpower seeks a new restricted discretionary activity to provide
explicit protection for pruning or felling associated with maintenance
of utilities.177
Ms Rachlin's rebuttal evidence explains that she
considers these activities are already addressed in the existing rules
(eg P1) and that a new rule is not necessary.178
174 Evidence in chief of Caroline Rachlin, 18 December 2015 at 24.34. 175 Evidence in chief of Caroline Rachlin, 18 December 2015 at 24.30. 176 Evidence in chief of Caroline Rachlin, 18 December 2015 at 24.40. 177 Evidence in chief of Ainsley McLeod, 13 January 2016 at 34. 178 Rebuttal evidence of Caroline Rachlin, 15 January 2016 at 20.2.
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Whether Advice Note 9.4.3.1.4 (c) should be amended
17.15 Transpower seeks amendments to this advice note to better reflect
the intent of the Transpower submission.179
Ms Rachlin disagrees
with these amendments as noted at paragraph 20.1 of her rebuttal
evidence.
Use of linear measurement rather than measuring via the 'dripline' of a tree
17.16 Carter Group Limited (#3602) seek that a numerical line
measurement be used from the base of the tree rather than the term
'dripline' in RD4 (and consequentially that the definition of dripline be
deleted). The Council's view is that the dripline measurement is more
accurate and therefore should be maintained.180
The Council also
disagrees with the deletion of the definition of 'dripline'.181
Site specific requests
17.17 A number of submissions were received seeking site specific
amendments to the Schedules. Tables 1 and 2 on pages 112 and
114-116 of Ms Rachlin's evidence in chief records her position on
those matters and her recommendation on whether or not those trees
should be listed. On the basis of those tables, the Council
understands that the outstanding site specific requests are:
(a) Tree T241 at 4 Majestic Lane – Mr and Mrs Johnstone
(#3045) seek to have this tree removed from the schedule.
Mr Graham and Ms Rachlin do not agree with this request.
(b) Tree T52 at 161 Cashmere Road – Mr and Mrs Lester
(#3210) and Ms Tanfield (#3259) seek to have this tree
removed from the schedule. Mr Graham and Ms Rachlin do
not agree with this request.
179 Evidence of Ainsley McLeod, 13 January 2016 at 21. 180 Evidence in chief of Caroline Rachlin, 18 December 2015 at 24.32. 181 Evidence in chief of Caroline Rachlin, 18 December 2015 at 24.36.
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(c) Tree T27 at 8 Blair Avenue – Mr and Mrs Sedgley (#3215)
seek to have this tree removed from the schedule.
Mr Graham and Ms Rachlin do not agree with this request.
(d) Line of 25 Oak Trees on Dudley Avenue – Helen Lowe
(#3211) seeks the scheduling of these trees.182
The
Council's position is that there is already sufficient protection
of these trees through the public realm protection and
therefore additional controls are unnecessary.183
(e) 27 Hunters Road – Council owned eucalyptus tree – the
Diamond Harbour Community Association (#3090) seeks
that this tree be scheduled. Ms Rachlin does not agree with
this request as the tree is protected through the public realm
provisions.
(f) 267 Cambridge Terrace – Totara tree and Southern Rata
tree – Peterborough Village Association (#3233) seeks that
these trees be scheduled. Ms Rachlin does not agree with
this request as the trees are protected through the public
realm provisions.
(g) 23 Taylors Mistake Road – 13 native trees – Jeremy Evison
and Catherine Bibbey (#3640) seek that these trees be
scheduled. Mr Graham and Ms Rachlin do not agree with
this request for the reasons set out in paragraphs 10.24 and
10.25 of Mr Graham's evidence in chief.
(h) 104 Glandovey Road – Coastal Redwood – John Pettit
(#3240) seeks that this tree be scheduled. Mr Graham and
Ms Rachlin do not agree with this request.
17.18 We note that there is no need for the Panel to make a finding on the
age of the Templeton Kowhai trees given that the Council has agreed
to delist them as noted earlier.
182 Evidence in chief of Helen Lowe, 13 January 2016 at 10.9. 183 Evidence in chief of Caroline Rachlin, 18 December 2015 at 25.1.
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TOPIC 9.5: NGĀI TAHU VALUES AND THE NATURAL ENVIRONMENT
18. TOPIC 9.5: THE PROPOSAL
18.1 The origins of this topic are discussed in the evidence of Mr Alan
Matheson. In summary, the Council did not have the details of the
places of cultural significance to Ngāi Tahu in time for the notification
of this proposal, but had committed to including process objectives
and policies within the pRDP to address wāhi tapu and cultural
landscapes matters, with the actual work to develop district plan
implementation methods to be undertaken in 2016.184
18.2 The Ngāi Tahu submission seeks the inclusion of a full suite of
provisions relating to the protection of sites of cultural significance,
including objectives, policies and rules. The Council has been
working collaboratively with Ngāi Tahu to develop those provisions
with a view to Ngāi Tahu presenting them to the Panel for
consideration at this hearing.
18.3 The provisions sought by Ngāi Tahu for Topic 9.5 are set out in the
evidence of Yvonne Legarth and are commented on in the rebuttal
evidence of Mr Pauling and Ms Ferguson.
19. TOPIC 9.5: KEY AREAS OF AGREEMENT AND DISAGREEMENT
19.1 The Council and Ngāi Tahu have reached agreement in respect of
the objective and policy framework for the protection of sites of
cultural significance to Ngāi Tahu. The agreed objectives and
policies are set out in the evidence in chief of Ms Ferguson, with an
additional objective (objective 9.0.1.3) in relation to the coastal
environment, proposed in the evidence in chief of Ms Legarth dated
13 January 2016, which is also supported by the Council.
184 Evidence in chief of Alan Matheson, 2 December 2015 at 4.2.
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19.2 Ngāi Tahu agreed in discussions with the Council prior to the
Christmas break that it would provide in its evidence in chief, to be
exchanged on 13 January 2016:
(a) A section 32AA report in respect of the provisions, and in
particular the methods for giving effect to the agreed
objectives and policies; and
(b) Planning evidence in support of its proposed rules package
– whereby certain activities within identified areas of cultural
significance to Ngāi Tahu would require resource consent as
a restricted discretionary activity (as per Ngāi Tahu's
submission).
19.3 The Council understands that the position in Ms Legarth's evidence of
13 January 2016 is that she supports the rule package sought in Ngāi
Tahu's submission, albeit she is open to further discussions with
Council in relation to the possible refinement of these provisions.
19.4 The Council's position, as at the date of these submissions, is set out
in the rebuttal evidence of Ms Ferguson and Mr Pauling. By way of
summary:
(a) Mr Pauling is familiar with and supportive of the
methodology used by Ngāi Tahu to identify sites of cultural
significance. However, he has some concerns in relation to
the "extent" of the proposed sites in certain cases. This is
due to the nature of the "eclipse" method that is used, where
a circle is drawn around the likely location of the site, without
actually identifying the site, due to particular sensitivities
about identifying it. While Mr Pauling accepts this as a
methodology, and agrees with the reasons why it is used, in
his view, further work is required in some cases to better
refine the site extents.185
As identified by Mr Pauling, and in
Ms Ferguson's planning evidence, if the site extents are not
refined, or changes made to the rules, then the rules
185 Rebuttal Evidence of Craig Pauling, 18 December 2015 at 3.1 – 3.6.
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proposed by Ngāi Tahu will be onerous, and may not be an
efficient and effective way of achieving the agreed objectives
and policies – on the basis that they may trigger a large
number of consents.186
(b) With respect to the section 32AA report and rules package
proposed by Ngāi Tahu, the section 32AA report outlines
five options for giving effect to the objectives and policies.
Ms Legarth has indicated in her evidence that she prefers
option 1 – where sites of cultural significance to Ngāi Tahu
are given effect to by objectives, policies, and rules (the
Council understands these to be the rules included in Ngāi
Tahu's submission). Overall, Ms Ferguson has concerns
that at present rules relating to the protection of sites of
cultural significance to Ngāi Tahu would not be efficient or
effective unless further refinements were made to the maps.
Ms Ferguson and Mr Pauling have expressed a willingness
to continue to work collaboratively with Ngāi Tahu on the
provisions.
20. TOPIC 9.5: RELEVANT ISSUES FROM THE STATEMENT OF ISSUES
Issue 1(d) Is Chapter 9 consistent with the strategic directions objective
for Ngāi Tahu Manawhenua, in particular have historic and contemporary
connections, and cultural and spiritual values, associated with the land,
water and other taonga of the district been recognised and provided for?
20.1 For reasons already explained in these submissions (paragraph 18.1)
Chapter 9, as notified, did not identify any sites of cultural significance
to Ngāi Tahu for protection.
20.2 Ngāi Tahu has subsequently, through its submission, identified
proposed sites of cultural significance due to their cultural and
spiritual values, and proposes that these be identified in the District
Plan. Subject to some concerns about the extents of the sites
identified, Mr Pauling supports the inclusion of the sites of cultural
186 Rebuttal evidence of Craig Pauling, 18 December 2015 at 8.2; evidence in chief of Shirley Ferguson, 2
December 2015 at 3.3 - 3.4.
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significance identified by Ngāi Tahu in the District Plan. In
Mr Pauling's view, the identification of these sites is appropriate,
based on their cultural and spiritual values.187
20.3 The Council recognises that there is a need to provide for these sites,
and that doing so is consistent with the strategic directions objective
for Ngāi Tahu Manawhenua (Objective 3.3.3). The Council has
agreed with Ngāi Tahu on a framework of objectives and policies for
the identification and protection of these sites and values, and
(subject to further refinement of the extent of the sites) on the sites
that are to be protected.
20.4 At the date of these submissions, the issue that remains to be
determined is how to best "provide for" the protection of these values,
and what rule framework, or non-regulatory methods should be used
in respect of these sites.
Issue 1(da) Do the objectives, policies, rules and matters of discretion
proposed by Ngāi Tahu appropriately recognise and provide for the
protection of sites and practices of Ngāi Tahu cultural significance?
20.5 As already outlined in these submissions, the Council and Ngāi Tahu
have reached agreement with respect to a framework of objectives
and policies in relation to sites of cultural significance to Ngāi Tahu,
and (largely) on the sites.
20.6 However, agreement has not yet been reached in relation to the
rules. As at the date of presenting these submissions, the Council
understands that Ngāi Tahu seeks the inclusion in the District Plan of
the rules identified in its submission – requiring restricted
discretionary activity consent for various activities including within
urban settlement zones. In the Council's submission, these rules
(based on the maps currently proposed by Ngāi Tahu) would be
onerous, and have high costs in terms of the number of resource
consents that are required. In the Council's submission, further
refinement of the maps and rules is needed to ensure that they are an
187 Rebuttal evidence of Craig Pauling, 18 December 2015 at 5.1, 6.1 and 7.1.
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efficient and effective method of achieving the agreed objectives and
policies.
Issue 4(a) Is the recognition, identification of, and protection for sites of
significance for Ngāi Tahu (including policy framework for future work to
identify culturally significant landscapes, wāhi tapu), appropriate
(including the provisions for Silent File Areas in Section 9.3)?
20.7 With respect to the silent file areas, Ms Ferguson and Mr Pauling that
generally support the inclusion of these areas in the District Plan.
However, there are potential issues around the extent of the silent file
areas – and where they differ from what is shown in the Operative
District Plan and the Mahaanui Iwi Management Plan.188
As noted in
paragraph 3.1 above, the IMP must be taken into account in the
pRDP process.
20.8 Where the extents of the silent file areas are larger than what is
shown in the current operative plan, in the Council's submission, care
needs to be taken to ensure that any such extension is justified. The
Council remains concerned that due to the geographic extent of the
silent file areas, they could result in onerous consenting requirements
for all parties involved.
20.9 As an interim measure, the Council proposed the identification of the
large IMP silent file areas and Silent file 07 on the planning maps for
information purposes only, provided these are not subject to the
restricted discretionary activity rule (RD1).
188 Rebuttal evidence of Shirley Ferguson, 18 December 2015 at 4.9; rebuttal evidence of Craig Pauling, 18
December 2015 at 5.2(a) and (b).
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21. OTHER PROPOSALS: KEY AREAS OF DISAGREEMENT
Transport (Stage 3)
21.1 There are no remaining areas of disagreement in relation to the
Transport (Stage 3) provision that has been deferred to this hearing.
The agreed position is that set out in Ms Ferguson’s evidence in chief
at paragraphs 6.107 - 6.108.
Rural (Stage 3)
21.2 The Crown seeks amendments to the terminology in references in
Chapter 17 rules relating to ‘important ridgelines’ and ‘rural amenity
landscapes’. The Crown believe that 'identified important ridgelines'
has been deleted from the pRDP and has been incorporated into
Significant Features.189
The Council understands that 'identified
important ridgelines' has not been incorporated into Significant
Features. Identified important ridgelines are identified separately to
Significant Features, and only occur within the Rural Amenity
Landscape on Banks Peninsula.190
21.3 In relation to Rural (Stage 3) Issue 2,191
the revised proposal for
Rural Stage 3 includes reference to "any Site of Ngāi Tahu Cultural
Significance" in Rule 17.2.3.4. It is submitted that there is now
sufficient recognition of sites of cultural significance in the Rule.
Ms Hogan supported the retention of these references in her rebuttal
evidence.192
21.4 In relation to Rural (Stage 3) Issue 3,193
as already outlined in these
submissions, agreement has not yet been reached on additional
matters of discretion relating to Ngāi Tahu sites of cultural
significance. Ms Hogan in her evidence in chief discusses that this
extends to the Rural Proposal.194
The status of this issue is therefore
linked to Issue 1(da), which is discussed in paragraphs 20.5 and 20.6
above.
189 Evidence of Anna Cameron, 10 December 2015 at 12.1 – 12.2. 190 Rebuttal evidence of Deborah Hogan, 18 December 2015 at 3.2. 191 Should there be additional recognition of Ngāi Tahu sites of cultural significance in Rule 17.2.3.4? 192 Rebuttal evidence (Rural) of Deborah Hogan, 18 December 2015. 193 Should additional matters of discretion be added relating to sites of Ngāi Tahu cultural significance? 194 Evidence in chief (Rural) of Deborah Hogan, 2 December 2015.
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Commercial and Industrial (Stage 1) and Subdivision (Stage 1) matters relating to the Industrial General zone (North Belfast)
21.5 The remaining areas of disagreement in relation to the Industrial
proposal can be summarised as follows:
(a) Submitters195 have challenged whether there are cultural
values in the Industrial General zone (North Belfast) and the
significance of those values. The Council considers there
are cultural values within the silent file area which warrant
protection.
(b) The appropriateness of regulatory intervention to manage
effects on cultural values in the Industrial General zone
(North Belfast), and if regulatory intervention is deemed
appropriate, what is the most appropriate method (i.e. a
permitted activity standard or a requirement for consent, and
the extent of the area it is applied to)? The Council is now
proposing an alternative certification approach as described
in the rebuttal evidence of Mr Stevenson.196
(c) In relation to springs:
(i) Whether the value of some springs are greater
than others and whether a different level of
intervention is appropriate.
(ii) The appropriateness of setbacks from springs in
the Industrial General zone (which is 20 metres in
the proposal as notified). After considering
alternatives to the setbacks from springs, as
outlined in the evidence of Mark Stevenson, the
Council remains of the view that the use of a
setback is the most appropriate method to provide
protection for springs. The Council now proposes
an alternative position from that which was notified,
195 Primarily the Radford Family (refer to evidence of Ms Aston). 196 Rebuttal evidence of Mr Stevenson, paragraph 3.40.
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for buildings located between 10-20m of a spring
as a controlled activity and less than 10m as
restricted discretionary, which acknowledges the
sensitivity of springs.197
21.6 It is noted that while setbacks from springs within the North Belfast
area are within the scope of this hearing, the District-wide approach
to waterbody setbacks is addressed in Proposal 6.198
21.7 In relation to the subdivision proposal, the issue remains as to
whether the objectives and policies regarding earthworks, and rules
and matters of discretion appropriately recognise and provide for the
protection of sites of Ngāi Tahu cultural significance.
Subdivision (Stage 3)
21.8 The remaining areas of disagreement in relation to Subdivision
(Stage 3) can be summarised as follows:
(a) The Crown is concerned that the list of SES is not complete,
and has sought to delete reference to 'identified in the Plan'
from objectives and policies and Rule 8.2.4.1(26) and delete
reference to SES in Table 1 to Rule 8.8.2 and replace with
'significant indigenous vegetation and significant habitats of
indigenous fauna, including SES'.199
The Council agrees
with the Crown that not only identified significant sites but
also potentially significant sites require protection which
should be reflected in Chapter 8. However the Council sees
the amendment to policy 8.1.1.1(iii) through evidence200
as
resolving this issue in relation to objectives and policies. A
similar amendment is appropriate to matters of discretion
(8.2.4.1 (26)). The Council does not consider any further
amendment to Rule 8.8.2 in this respect is appropriate.201
197 Evidence in chief of Mr Stevenson, paragraphs 3.4 and 6.28. 198 Evidence in chief of Mr Stevenson, paragraph 6.14, and rebuttal evidence, paragraph 5.1. 199 Rebuttal evidence of Andrew Long, 18 December 2015 at 6.3(a). 200 Stage 1 Subdivision, Development and Earthworks. 201 Rebuttal evidence of Andrew Long, 18 December 2015 at 6.4 – 6.5.
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(b) The Crown wishes to increase the activity status for non-
compliance with Table 1 to Rule 8.8.2 in relation to ONL,
ONC, SES and ONF overlays from discretionary to non-
complying activity status and considers that non-compliance
in relation to the coastal environment should be a
discretionary activity.202
The Council considers that to
require consent as a non-complying activity is onerous, as
the majority of the areas are within rural zones where a
greater degree of earthworks may be anticipated.203
(c) Ms McKeever on behalf of Eliot Sinclair has proposed an
additional rule, allowing for a consent notice cancellation
application to be considered as a Restricted Discretionary
Activity.204
Mr Long agrees that this rule could provide
useful guidance, however believes that the removal of a
consent notice would still require an application to be made
under section 27 of the RMA for a change of the related
condition consent, and this would be treated as a
discretionary activity.205
The rule proposed may therefore be
of little benefit in altering the activity status for the removal of
a consent notice.206
See also the discussion at paragraphs
7.2-7.8 above about the legal issue associated with this
matter.
(d) The Rod Donald Banks Peninsula Trust and Akaroa Civic
Trust consider that subdivision not complying with rule
8.2.2.2 RD 13 should be a non-complying activity, to provide
protection for Banks Peninsula.207
Mr Long for the Council
sees it as inappropriate to have a non-complying activity
status for subdivision to create a site in order to manage
effects of the likely future land-use when some of those
land-uses are permitted activities.208
202 Rebuttal evidence of Andrew Long, 18 December 2015 at 6.3(b). 203 Rebuttal evidence of Andrew Long, 18 December 2015 at 6.6. 204 Evidence in chief of Claire McKeever, 10 December 2015 at 6.3. 205 Rebuttal evidence of Andrew Long, 18 December 2015 at 4.2. 206 Rebuttal evidence of Andrew Long, 18 December 2015 at 4.2. 207 Evidence in chief of Janice Cook, 10 December 2015 at 50. 208 Rebuttal evidence of Andrew Long, 18 December 2015 at 7.3.
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Central City Subdivision and Development
21.9 Based on the Evidence in chief of Sandra McIntyre and the rebuttal
evidence of Andrew Long, there are no remaining areas of
disagreement in relation to the Central City Subdivision and
Development provisions deferred to this hearing.
Central City Earthworks
21.10 The Crown wishes to delete the exclusion of central city road
corridors from 8.8.2 P6.209
The Council's position is that Rule 8.8.2
P6 reflects the position under the CCRP, which removed the
protection of street trees within the central city.210
The pRDP is
required by section 23(1) of the CER Act to be consistent with any
recovery plan.
Utilities and Energy (Stage 3)
21.11 The remaining areas of disagreement in relation to Utilities and
Energy (Stage 3) can be summarised as follows:
(a) The Crown and Transpower seek amendments to the
wording of Policy 11.1.2.1. The Crown expressed concerns
about including the terms 'significant' and 'where reasonably
practicable', and considers they should be deleted. As
outlined by Ms Jenkin,211
the Council's position is that this
deletion would be inappropriate and would make the policy
inconsistent with higher order documents. The Council also
notes that this part of the Policy was addressed in Stage 2
and there were no challenges to the wording used.
(b) Orion considers permitted activity status to be appropriate
for new electricity distribution lines in Rural Amenity
Landscapes on Banks Peninsula and the Port Hills under
Rule 11.3.2.1 and Rule 11.3.2.2. Ms Pfluger212 and
209 Evidence in chief of Sandra McIntyre, 10 December 2015 at 7.18. 210 Rebuttal evidence of Andrew Long, 18 December 2015 at 6.15. 211 Rebuttal evidence of Sarah Jenkin, 18 December 2015 at 4.2 – 4.7. 212 Rebuttal evidence of Ms Pfluger, section 6.
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Ms Jenkin213
disagree with this suggestion due to the
potential effects of new lines on the rural landscape. This
matter is the subject of ongoing discussion between the
relevant witnesses.
(c) Orion seeks a new permitted activity be included for the
maintenance, repair, replacement and minor upgrading of
utilities within heritage settings. This rule would apply to all
heritage settings, not just the six substations administered
by Orion.214
The Council submits a new rule is not
necessary, as Rule 11.3.1.1 P3 and P11, 11.3.2.1 P4 and
11.3.2.2 RD 1 provide for these activities.215
(d) The treatment of utilities in the Topic 9.2 overlays is
considered in the evidence of Ms Shirley Ferguson and Ms
Sarah Jenkin. The Council notes that this matter,
particularly whether there is an exemption for utilities from
some rules in 9.2.3, is subject to ongoing discussion. Issues
relating to access tracks to utilities (Rule 11.3.1.1. P1) are
addressed in the evidence of Ms Jenkin.216 As explained in
her rebuttal evidence,217 Ms Jenkin considers the controls
relating to construction and extension of access tracks
would benefit from further consideration.
(e) Orion has noted that Objective 11.2.1 does not make
reference to areas and items of natural and cultural heritage.
Ms Jenkin agrees that a gap exists and has proposed an
amendment,218
however as outlined in paragraphs 7.9-7.11
there is an issue of scope that needs to be determined in
order to address this matter.
213 Rebuttal evidence of Sarah Jenkin, 18 December 2015 at 10.2. 214 Evidence in chief of Clare Kelly, 20 December 2015 at 35. 215 Rebuttal evidence of Sarah Jenkin, 18 December 2015 at 13.1 – 13.4. 216 Evidence in chief of Ms Jenkin, section 12. 217 Rebuttal evidence of Ms Sarah Jenkin, paragraphs 9.3 and 9.4. 218 Rebuttal evidence of Sarah Jenkin, 18 December 2015 at 3.1 - 3.6.
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Central City Utilities and Energy
21.12 Based on the Evidence in Chief of Sandra McIntyre and the Rebuttal
Evidence of Sarah Jenkin, there are no remaining areas of
disagreement in relation to the Central City Utilities and Energy
provisions deferred to this hearing.
22. WITNESSES
22.1 The Council will be calling the following witnesses:
Expert Name Discipline
Chapter Wide / Overview Evidence
Helen Beaumont Strategic Evidence
Alan Matheson Ngāi Tahu Submission
Doug Fairgray Economist
William Blake Registered Valuer
9.1 Biodiversity and Ecosystems
Clive Appleton Council evidence
Deborah Hogan Planning
Dr Antony Shadbolt Ecologist (also covering the evidence originally
prepared by Andrew Crossland)
Scott Hooson Ecologist
Belinda Margetts Waterways Ecologist
9.2 Outstanding Natural Features and Landscapes, Significant Features
and Landscapes and Areas of Natural Character in the Coastal
Environment
Shirley Ferguson Planning
Planning – provisions from Transport (Stage 3)
proposal
Deborah Hogan Planning – provisions from Rural (Stage 3)
proposal
Yvonne Pfluger Landscape Architect
Craig Pauling Kaiarataki – Te Hihiri / Strategic Advisor –
Maori
9.3 Historic Heritage
Caroline Rachlin Planning
Amanda Ohs Historic heritage
Fiona Wykes Historic heritage
Dr Ann McEwan Heritage (site specific issues only)
Jenny May Architectural historian / historian
Jackie Gillies Conservation Architect
Gavin Stanley Quantity Surveyor
Andrew Marriott Structural Engineer
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9.4 Significant Trees
Caroline Rachlin Planning
Andrew Long Planning – provisions from Subdivision (Stages
1 and 3) and Central City proposals and
Earthworks provisions from Central City
proposal
Sarah Jenkin Planning – Utilities and Energy provisions from
Utilities and Energy (Stage 3) and Central City
proposals
Trevor Partridge Botanist
Jenny Moore Landscape Architect
Rob Graham Arborist
Ed Sard Arborist
Peter Barnes Open Space
9.5 Ngāi Tahu Values and the Natural Environment
Shirley Ferguson Planning
Mark Stevenson Planning – Industrial General Zone (North
Belfast) provisions from Industrial (Stage 1)
Andrew Long Planning – Subdivision provisions relating to
silent files
Craig Pauling Kaiarataki – Te Hihiri / Strategic Advisor –
Maori
Disclosure of potential conflicts of interest – Mark Stevenson and Jennifer May
22.2 Since the filing of his evidence in relation to this Proposal, Mark
Stevenson has left employment with the Council and is now
employed by Beca. Ms Ainsley McLeod, who is also employed by
Beca, has filed evidence in relation to this Proposal on behalf of
Transpower NZ Limited. Mr Stevenson and Ms McLeod address
different topics and issues in their respective statements of evidence,
but Mr Stevenson and the Council wish to disclose this matter in the
interests of transparency. For completeness, we also note that Mr
Stevenson has also filed evidence for the Central City hearing
(regarding the Central City Business zones). However, Ms McLeod
has not filed evidence in relation to that proposal.
22.3 We also note that Ms Jennifer May, a heritage witness for the
Council, has also provided evidence on behalf of the following
submitters: Te Wharau Investments Ltd (#3290.8, #3290.9, #3290.10,
#3290.11, #3290.12, #3290.13); Carter Group Limited (#3602,
FS#5062); and Canterbury Museum Trust Board (#3351, FS#5018).
Ms May's evidence relates to site specific heritage issues and
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addresses different sites in her role as an expert witness for each
submitter. We further note that due to a perceived conflict, Ms May
has not been involved (in her capacity as a Council witness) in
matters relating to the Anglican Cathedral and Church Property
Trustees.
23. EVIDENCE THAT WILL ALSO BE RELEVANT TO CHAPTER 19
23.1 At the pre-hearing meeting for Chapter 19 on 10 December 2015, the
Panel expressed interest in the cross over between Chapters 9 and
19, relating to the location of the Coastal Environment overlay.
Counsel understands that one matter of interest to the Panel
expressed at that pre-hearing meeting was the identification of which
evidence from Chapter 9 will be relied on by the Council in the
Chapter 19 hearing.219
That evidence is listed below:
(a) Topic 9.1 – Deborah Hogan and Scott Hooson;
(b) Topic 9.2 – Shirley Ferguson, Yvonne Pfluger and Craig
Pauling; and
(c) Topic 9.3 – Caroline Rachlin.
DATED this 17
th day of January 2016
__________________________________ M G Conway / M J Jagusch / Z W Fargher
Counsel for Christchurch City Council
219 See comments of Sir John Hansen on page 5 of the Transcript of Proceedings for the Chapter 19:
Coastal Environment and Stage 2 Residential Bach Zone Pre-Hearing Conference, 10 December 2015.
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APPENDIX A:
ALLOCATION OF OTHER NOTIFIED PROVISIONS TO THE NATURAL AND CULTURAL HERITAGE HEARING
Transport (Stage 3) provisions:
o Matter of Discretion 7.3.21.4 to 7.3.21.8 Formation of unformed legal
roads.220
Subdivision (Stage 1) provisions:221
o Objective 8.1.1;
o Policies 8.1.1.1, 8.1.1.2, 8.1.1.3;
o Rules at section 8.3.7;
o Assessment matters at 8.5.2;
o Provisions that relate to the Industrial General Zone (North Belfast)
(8.4.1.1 RD 4 and associated matters of discretion 8.4.1.3 (18) and
(19));222
and
o Inclusion of RD activity in 8.3.7.1 and related matter of discretion
(8.3.7.3) regarding land in silent file areas.223
Subdivision (Stage 3) provisions:
o Rule 8.3.1.1, RD2, restricted discretionary standard 5;
o Matter for discretion 8.3.1.5, Rural Banks Peninsula sub-paragraph
(a) (part) and Coastal Environment sub-paragraph (i) (part) and (k)-(l);
o Rule 8.3.7.1 RD3 - RD5;
o Matters for discretion 8.3.7.3 (13)-(32);
o Objective 8.7.1(2);
o Policies 8.7.1.1-8.7.1.4;
o Rule 8.8.2, P1, activity standards 9-10;
o Rule 8.8.2, P3;
o Rule 8.8.2 - Table 1 – Maximum Volumes – earthworks – clarification
note (3);
o Rule 8.8.2 Table 1 – Maximum Volumes – earthworks – Overlays;224
220 The Council originally sought that this provision be heard in the Stage 3 Coastal Environment Hearing in
its Memorandum of Counsel filed in advance of the pre-hearing meeting for Transport Stage 3 (part) dated 19 October 2015 at paragraph 6. However, at the Transport prehearing meeting it was directed that these provisions be heard in the Stage 3 Natural and Cultural Heritage hearing instead.
221 Minute, Deferral of Natural and Cultural Heritage Provisions dated 5 June 2015. 222 Subdivision Opening Submissions for Council (Stage 1) dated 22 June 2015, at 2.3. 223 Joint application the Council and MKT/TRONT regarding silent files dated 14 May 2015 at 7 and 8; Order
from Panel dated 15 May 2015.
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o Rule 8.8.3, RD3 and RD8;
o Rule 8.8.6 (1)(c)(iii)(b); and
o Matters of discretion 8.8.7(5)(e) – (g) and (6)(b).
Utilities and Energy (Stage 3) provisions:
o Policy 11.1.2.1: Adverse effects from utilities – references added to
paragraph 1(a) and new paragraph 1(b) inserted;
o Rule 11.3.1.1 Permitted Activities: General – new standards added to
P1 and P2;
o Rule 11.3.2.1 Permitted Activities: Electricity transmission and
distribution – new standards added to P1;
o Rule 11.3.3.1 Permitted Activities: Energy – new standards added to
P1 and P5;
o Rule 11.3.3.2 Restricted Discretionary Activities: Energy – new
references added to RD6;
o Rule 11.3.3.3 Discretionary Activities: Energy – new text added to D1
and D2;
o Rule 11.3.4.1 Permitted Activities: Communications facilities – new
standards and text added to P1;225
and
o Assessment Matters 11.4: Utilities – new matters (a), (c) and (d)
added to Heritage and Natural Environment.
Commercial and Industrial (Stage 1) - Cultural provisions for the Industrial
General (North Belfast) zone being:226
o Rule 16.2.7.1.1 P1 (a)(iii) and (iv);
o Rule 16.2.7.1.2 RD1;
o Rule 16.2.7.2.4;
o Matter of Discretion 16.2.7.3.1 (d), (e), (f), (g) and (h) (Outline
Development Plan);
o Matter of Discretion 16.2.7.3.3 (Silent File); and
o Matter of Discretion 16.2.7.3.4 (Springs).
224 Panel's Minute confirming the allocation of notified provisions to Stage 3 and combined Stage 2 and 3
hearings, footnote 4. 225 This does not include Standard (3), which is not shown in grey highlighting and has been directed by the
Panel to be renotified, at the Utilities and Energy pre-hearing meeting on 29 October 2015. 226 Joint memorandum of counsel dated 30 April 2015; Approved in Panel Minute dated 6 May 2015.
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Rural (Stage 3) provisions:227
o Rule 17.2.2.3 new matters of discretion added to RD1-RD5
o Rule 17.2.2.4 references added to matters of discretion D1-D5
o Rule 17.2.3.2 building reflectivity;
o Rule 17.2.3.3 identified important ridgelines;
o 17.2.3.4 landscape buffer;
o Rule 17.2.3.5 new matters of discretion;
o Rule 17.2.3.6 new matters of discretion;
o Rule 17.2.3.8 new matters of discretion;
o Rule 17.2.3.9 new matters of discretion;
o Rule 17.2.3.12 new matters of discretion;
o Rule 17.2.3.13 new matters of discretion;
o Rule 17.4.2.3 new matters of discretion in RD1-RD5;
o Rule 17.4.2.4 new matters of discretion in D1-D4;
o Rules 17.4.3.2 - 17.4.3.5 new matter of discretion;
o Rule 17.4.3.8 new matter of discretion;
o Rule 17.5.2.3 new matters of discretion in RD1 – RD5;
o Rule 17.5.2.4 new matter of discretion in D1-D2;
o Rules 17.5.3.2 – 17.5.3.5 new matter of discretion;
o Rule 17.5.3.7 new matter of discretion;
o Matter of Discretion 17.8.1.9 Building reflectivity – Rural Banks
Peninsula;
o Matter of Discretion 17.8.1.10 Important identified ridgelines – Rural
Banks Peninsula;
o Matter of Discretion 17.8.3.1 Coastal environment; and
o Matter of Discretion 17.8.3.2 Significant landscape – Rural Banks
Peninsula.
Central City Subdivision and Development provisions:
o Objective 13.10.1.1 – Natural and Built Environments;228
o Policy 13.10.1.1.1 – Natural Features and Landscapes;229
227 The Council originally sought that some of these provisions be heard in the Stage 3 Coastal Environment
Hearing in its Memorandum of Counsel filed in advance of the pre-hearing meeting for Rural Stage 3 (part) dated 19 October 2015 at paragraph 3 and 6. However, at the Rural prehearing meeting it was directed that these provisions be heard in the Stage 3 Natural and Cultural Heritage hearing instead, see Rural prehearing transcript at page 1.
228 We note this has been integrated into 8.1.1 in the Integrated Subdivision, Development and Earthworks Chapter filed on 12 November 2015.
229 We note this has been integrated into 8.1.1.1 and 8.1.1.3 in the Integrated Subdivision, Development and Earthworks Chapter filed on 12 November 2015.
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o Policy 13.10.1.1.2 – Heritage Items and Settings and Protected
Trees;230 and
o All of 13.10.9 – Natural and Cultural Heritage.231
Central City Earthworks provisions:
o 13.11.1.1(1) – Objective, Protecting the environment from
earthworks;232
o 13.11.1.1.1 – Policy, Heritage;233
o 13.11.1.1.2 – Policy, Trees;234
o 13.11.2.2 P1, Activity Specific Standard (a) in relation to Significant
Features and Sites of Ecological Significance Overlays in Table 1235
o 13.11.2.2 P3 and Activity Specific Standards (a) to (c); 236
o 13.11.2.3 RD3;237 and
o 13.11.2.7 Matters of Discretion (1) and 3). 238
Central City Utilities and Energy provisions
o Policy 13.13.1.2.1 (a) and (b) – Adverse Effects;239
o 13.13.2.1.1 – Application of These Rules240 – third paragraph ((a), (b)
and (c));241
o Rule 13.13.2.2.1 P1 (Permitted Activities – General);242
o Rule 13.13.2.3.1 P1, Activity Standards (a), (b) and (c);243
o Rule 13.13.2.4.1 P1, Activity Standard (c);244
230 We note this has been integrated into 8.1.1.2 in the Integrated Subdivision, Development and Earthworks
Chapter filed on 12 November 2015. 231 We note this has been integrated into 8.2.2.2, 8.2.2.3 D7 and 8.2.4.2 (17) in the Integrated Subdivision,
Development and Earthworks Chapter filed on 12 November 2015. 232 We note this has been integrated into 8.7.1 in the Integrated Subdivision, Development and Earthworks
Chapter filed on 12 November 2015. 233 We note this has been integrated into 8.7.1.1 in the Integrated Subdivision, Development and Earthworks
Chapter filed on 12 November 2015. 234 We note this has been integrated into 8.7.1.4 in the Integrated Subdivision, Development and Earthworks
Chapter filed on 12 November 2015. 235 We note this has been integrated into 8.8.2 P1 in the Integrated Subdivision, Development and
Earthworks Chapter filed on 12 November 2015. 236 We note this has been integrated into 8.8.2 P6 in the Integrated Subdivision, Development and
Earthworks Chapter filed on 12 November 2015. 237 We note this has been integrated into 8.8.3 RD3 in the Integrated Subdivision, Development and
Earthworks Chapter filed on 12 November 2015. 238 We note this has been integrated into 8.8.7 in the Integrated Subdivision, Development and Earthworks
Chapter filed on 12 November 2015. 239 We note this has been integrated into Policy 11.1.2.1 (1) (a) in the Integrated Utilities and Energy Chapter
filed on 11 November 2015. 240 We note this has been integrated into 11.3 (2) "How to use these rules" in the Integrated Utilities and
Energy Chapter filed on 11 November 2015. 241 For clarity, this paragraph begins: "Under the NESTF, other telecommunications facilities or activities are
managed by the District Plan". 242 We note this has been integrated into Rule 11.3.1.1 P2 (1) (b-e) in the Integrated Utilities and Energy
Chapter filed on 11 November 2015. 243 We note this has been integrated into Rule 11.3.2.1 P1 (1) (b-f) in the Integrated Utilities and Energy
Chapter filed on 11 November 2015.
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o Rule 13.13.2.4.3 RD5 (7) and (8);245
o Rule 13.13.2.5.1 P1, Activity Standards (a) and (b);246 and
o 13.13.3.1 (a) and (c) (Matters of Discretion – Heritage and Natural
Environment).247
DEFINITIONS TO BE HEARD IN THE NATURAL AND CULTURAL HERITAGE
(STAGE 3) HEARING:
List of definitions for Natural Cultural Heritage (Stage 3)
Alternation of a heritage item Indigenous vegetation
248
Alteration of a heritage setting Indigenous vegetation clearance249
Building Landscape
Care facilities Maintenance
Christchurch City Mast
Community facility Minor pruning
Conservation activities Naturalness
Cultural heritage Ngāi Tahu/Manawhenua
Cultural heritage sites250 Park management activities
Customary harvesting Park management facility
Demolition Place of assembly
Dripline Planation forestry
Earthworks Pre-school facility
Education activity Public open space
Emergency Quarrying activity
Farm building Reconstruction
Farming Recreation activity
Formed/Formation Recreation facility
Health care facility Relocation of a heritage item
Height Repairs
Heritage Restoration
Heritage fabric Sign/Signage
Heritage investigative and temporary works
Significant indigenous vegetation251
Heritage item Silent files
Heritage setting Site
Heritage upgrade works Site of Ngāi Tahu cultural significance
Heritage values Spring252
244 We note this has been integrated into Rule 11.3.3.1 P1 (3) (b) in the Integrated Utilities and Energy
Chapter filed on 11 November 2015. 245 We note this has been integrated into Rule 11.3.3.2 RD6 (7) (b-d) in the Integrated Utilities and Energy
Chapter filed on 11 November 2015. 246 We note this has been integrated into Rule 11.3.4.1 P1 (1) (b-d) in the Integrated Utilities and Energy
Chapter filed on 11 November 2015. 247 We note this has been integrated into Rule 11.4.1 (1) (c-d) in the Integrated Utilities and Energy Chapter
filed on 11 November 2015. 248 Direction of the Panel dated 5 June 2015 at paragraph 4(a)(ii)(3). 249 Direction of the Panel dated 5 June 2015 at paragraph 4(a)(ii)(3). 250 Christchurch City Council opening submissions for Stage 1 Definitions hearing dated 10 July 2015,
paragraph 6.2, and evidence in chief of Caroline Rachlin for the Stage 1 Definitions hearing at paragraph 3.1 in relation to the definitions for: cultural heritage, cultural heritage sites, heritage, site of Ngāi Tahu cultural significance.
251 Direction of the Panel dated 5 June 2015 at paragraph 4(a)(ii)(3).
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Historic heritage Substance
Historic heritage place Unformed legal road
Identified building area Utility
Indigenous biodiversity Wahi tapu
Indigenous fauna253
Wahi taonga
Submitter requested definitions:
Access track
Ancillary equipment
Conservation plan
Customary use
Environmental compensation
Environmental service
Golf amenity management activities
Heritage area
Heritage conservation
Improved pasture
Maintenance254
Naturally uncommon ecosystems
Partial demolition
Preservation
Preservation (Heritage)
Protective material
Regenerated indigenous vegetation
Reinstatement
Sites of ecological significance
Stabilisation
SUBMISSION POINTS TO BE HEARD IN THE NATURAL AND CULTURAL
HERITAGE (STAGE 3) HEARING:
The following submission points will be heard in the Natural and Cultural Heritage
(Stage 3) hearing:
SUBMISSION
POINT
NOTIFIED PROVISION
#3721.298 Rule 8.8.4 Earthworks – delete Rule 8.8.4 and add a new non-
complying activity rule for any activity within an 'overlay' identified in
Table 1 to Rule 8.8.2 that does not comply with the specified
volume limit
252 Conferencing Statement, Subdivision Proposal dated 30 June 2015; Christchurch City Council Opening
Submissions – Subdivision Proposal dated 22 June 2015. 253 Direction of the Panel dated 5 June 2015 at paragraph 4(a)(ii)(3). 254 With respect to indigenous vegetation-related fencing, etc, as opposed to the existing Stage 3
Maintenance definition specific to heritage items and settings.
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The following submission points made in Stage 3 that are on Strategic Direction
objectives that are in the Replacement District Plan (already subject to the Panel's
Decision 1), will be heard in the Natural and Cultural Heritage hearing:
SUBMISSION
POINT
STRATEGIC DIRECTION OBJECTIVE
#3721.183 Objective 3.3.9 Natural and cultural environment
The following submission points made in Stage 3 that relate to alignment of the Natural
and Cultural Heritage chapter with the Strategic Directions chapter, will be heard as
follows:
SUBMISSION
POINT
SUBMITTER
#3556.7 Vodafone New Zealand Limited
#3674.1,
3674.100, 3674.2
Heritage NZ Pouhere Taonga
#3689.6 Enable Networks Limited
The following submission points seeking a new Strategic Directions Objective will be
heard in the Natural and Cultural Heritage hearing (as well as the General Rules
hearing):
SUBMISSION
POINT
SUBMITTER
#3721.193 Crown, regarding fresh water features and values
#2458.7 Mahaanui Kurataiao Limited, regarding water quality