Decision following the hearing of an application for ... · SA983/271 Panorama Motels Limited 95 Waitomo Caves Road, Hangatiki ... Lot 5 DP 471398 639534 Daniel Raymond Cullen

Decision - Waitomo Skygarden Resource Consent RM190052 Page 1 of 29

Decision following the hearing of an application for resource consent under

the Resource Management Act 1991

WAITOMO SKY GARDEN LTD – PUKEROA ROAD, HANGATIKI, WAITOMO.

Summary of the Proposal

• To establish and operate a tourist attraction activity - including a tower structure,

zipline line towers and landing platforms, a cafe, buildings and on-site car

parking.

Consent, pursuant to section 104B of the Resource Management Act 1991, is REFUSED.

The full decision and reasons are set out below.

Application number: RM190052

Site address: Pukeroa Road, Hangatiki, Waitomo - Lot 2 DP 409891

(RT: 436263) and Lot 3 DP 409891 (RT: 436264)

Applicant: Waitomo Sky Garden Ltd

Hearing commenced: 24 June 2020

Hearing panel: Greg Hill – Independent Hearing Commissioner

Appearances: For the Applicant:

• John Heskett (Applicant)

• Cameron Aplin (Planning)

• David Mansergh (Landscape and Visual)

• Alastair Black (Traffic)

• Nevil Hegley (Noise)

• Norman Hill (Cultural)

For Submitters

Te Kauae Marae

• Roimata Harmon and Anaru Keogh (Te Kauae

Marae)

• Gannin Ormsby (Maniapoto Maori Trust Board) –

• Dr Dan Hikuroa (Cultural Expert)

Te Whanau Harmon

• Greg Koroheke

• Jack Keogh

• Roimata Harmon

(Charlie Tati Koroheke, Phillip David Koroheke,


Sharon Hineakura Turner, Lea Porter, Pania Te

Awhina Turner-Hughes, Te Muri Turner)

Nikki Koroheke (Sharon Turner)

Rawinia Hohua

Note – while each of the four listed submitters appeared

individually, they essentially addressed the same or

similar issues. Accordingly, for the purpose of this

decision I have collectively referred to the four

submitters as the Mana Whenua submitters.

• Jason Dawson (Chief Executive - Hamilton and

Waikato Tourism)

For the Council:

• Duncan Whyte (Planner and section 42A report

author)

• Stephen Brown (Landscape and Visual)

• Michael Allan (Noise),

• Michael Thorne (Traffic)

In attendance for the

Council

• Alex Bell (Senior Planner Waitomo District

Council)

• Terrena Kelly (General Manager - Strategy and

Environment Waitomo District Council

Commissioner site visit 23 June 2020

Hearing Adjourned 25 June 2020

Hearing Closed: 8 July 2020


Introduction

1) This decision is made on behalf of the Waitomo District Council (“the Council”) by

Independent Hearing Commissioner Greg Hill appointed and acting under delegated

authority under section 34A of the Resource Management Act 1991 (“the RMA”).

2) This decision contains the findings from my deliberations on the application for

resource consent and has been prepared in accordance with section 113 of the

RMA.

3) The site is located within the Rural Zone and partly within the Landscape Policy

Overlay Area of the Operative Waitomo District Plan 2009 (“ODP”). An

archaeological site (17AD) is listed in the ODP Part 3, Section 21: Heritage

Resources, ref. S16 197AD Caves Road on Lot 2 DP 409891, and shown on the

Planning Maps as (NZAA 17 AD).1

4) The application was dealt with on a notified basis. It was publicly notified on 12

March 2020, with the submission period closing on 9 April 2020. At the close of

the submission period, 138 submissions had been received. Of the submissions,

127 supported the application; one submitter was neutral; three did not specify

support or opposition; and seven submissions opposed the application.

5) Those opposing the application raised a number of issues including the adverse

effects related to: cultural values, archaeological values, heritage values, visual

and landscape effects, ecological effects and effects on infrastructure, public safety,

traffic and construction effects. At the hearing, most concerns related to ‘cultural’

effects which ‘embraced’ all of the issues set out above.

6) In response to The Lines Company submission, the Applicant revised the

application (on 4 May 2020) volunteering the conditions requested by that

submitter. The Lines Company subsequently withdrew its opposing submission on

15 May 2020.

7) Those submitters supporting the proposal addressed the positive effects which

were mainly in relation to perceived economic benefits (employment opportunities,

tourism revenue and the money it would bring to the area), positive visual effects

and environmental benefits (e.g., restoration of the steam and the replanting of

part of the site in native vegetation).

8) In addition to the notification process, the Applicant had obtained the written

approval of a number of parties (see Table below). Any effects on these parties

have been disregarded.

1 While not shown on the planning maps as being on the subject site, it was acknowledged by all parties that the archaeological site is in fact located on the subject site.


Table: Written Approvals

Address Legal Description Record of

Title

Reference

Registered Owner

1 Kiwi Street,

Hangatiki

Lot 39 DP 7569 SA992/195 Christopher John Lord

Lee-Ann Raewyn Lord

Lot 2 DPS 5006 SA2008/65 Christopher John Lord

Lee-Ann Raewyn Lord

Lot 38 DP 7569 SA16B/1393 Christopher John Lord

Lee-Ann Raewyn Lord

1 Waitomo Caves

Road, Hangatiki

Lot 2 DPS 5006 SA2008/64 Christopher John Lord

Lee-Ann Raewyn Lord

627 State Highway

3, Hangatiki

Pukeroa Hangatiki A21B SA26B/1417 Ian George Haigh

629 State Highway

3, Hangatiki

Lot 4 DPS 53259 SA51B/864 Ian George Haigh

Lot 3 DPS 64768 SA52A/802 Ian George Haigh

Pukeroa Hangatiki 1A

Block

SA44C/557 Ian George Haigh

629 State Highway

3, Hangatiki

Pukeroa Hangatiki A20A SA3B/1032 Ian George Haigh

Sec 16-17 Block XII

Orahiri Survey District

SA1049/34 Ian George Haigh

Lot 3-4 DPS 64768 SA52A/802 Ian George Haigh

1052 Mangarino

Road,

Te Kuiti

Lot 3 DP 414116 and

Pukeroa-Hangatiki A62

Block

45289 Sudesh Kumari Machra

650 State Highway

3, Hangatiki

Lot 2 DPS 62836 SA51C/853 John James Hedges

Sarah Kate Hedges

12 and 24 Waitomo

Caves Road,

Hangatiki

Part Lot 1 DPS 53259 SA51B/861 Brian Coombe

17 Waitomo Caves

Road, Hangatiki

Lot 5 DP 409891 436266 Ann Margery Barnes,

Ross Allan Barnes;

Te Puke Trustee

Services No 7

Limited

48 Waitomo Caves

Road, Hangatiki

Lot 1 DP 409891 675974 David William Dutton

Judith Gae Dutton

1054 Mangarino

Road, Hangatiki

Pukeroa Hangatiki A62

Block

SA983/271 Sudesh Kumari Machra

513 Haurua Road,

Otorohanga

Lot 1 DPS 83095 SA60C/898 Reeve Agri Limited

513 Haurua Road,

Otorohanga

Lot 2 DP 23057 DPS

83095

SA616/223 Reeve Agri Limited

728 State Highway

3, Hangatiki (Caves

Motel)

Lots 43, 72, 72A, 75, 76,

and 76A DP 7569

SA983/271 Panorama Motels

Limited

95 Waitomo Caves

Road, Hangatiki

Te Kawa A3A2 Block SA7A/937 Waitomo Wilderness

Limited

732 State Highway

3,

Hangatiki

Pukeroa Hangatiki

A26B2B1

SA20A/1166 Neil Russell Cooper and

Ramona

Sheena Cooper


Address Legal Description Record of

Title

Reference

Registered Owner

Lot 77 Deposited Plan

7569

SA455/243 Neil Russell Cooper and

Ramona

Sheena Cooper

506 State Highway

3, Hangatiki

Lot 1 DP 410836 448272 Neil Russell Cooper and

Ramona

Sheena Cooper

Lot 1 DPS 62836 SA51C/852 Daniel Raymond Cullen

Raymond Lewis Cullen

Alexandra Trustees

Limited

576 State Highway

3, Hangatiki

Lot 5 DP 471398 639534 Daniel Raymond Cullen

Raymond Lewis Cullen

Alexandra Trustees

Limited

Procedural Matter – Late Submissions

9) Thirty-two late submissions were received in relation to the application.2 The

submission period closed on 9 April 2020, with the late submissions being received

from 15 June 2020 until after the hearing was adjourned. I issued a Direction to

each late submitter requesting that the submitters set out:

• the reason(s) why the submission was late, and why it could not have been

filed by the 9 April 2020; and

• why the submissions should be accepted.

10) In a subsequent Direction (after 30 late submissions had been received), I

requested those submitters who sought to have their submission accepted present

at the beginning of the hearing to address the questions in the preceding

paragraph.

11) I also requested that the Applicant confirm whether or they were prepared to

accept the late submissions. The Applicant’s response was:3

In regards to the late submissions received last week and this week, I am of

the view they should not be accepted on the basis they are 2 months late and

that they do not appear to raise any new issues from the submissions received

on time.

12) At the hearing, Mr Aplin, the Applicant’s planner, requested that the late

submissions not be accepted.

13) Late submissions may be accepted if a waiver or time extension is granted in

accordance with section 37 and 37A of the RMA. Section 37A – Requirements for

waivers and extension – sets out the matters that need to be considered. They

are:

A consent authority or local authority must not extend a time limit or waive

2 Those submitters are set out in the spreadsheet attached to this decision. 3 An email from Mr Aplin dated 18 June 2020.


compliance with a time limit, a method of service, or the service of a

document in accordance with section 37 unless it has taken into account—

(a) the interests of any person who, in its opinion, may be directly

affected by the extension or waiver; and

(b) the interests of the community in achieving adequate assessment of

the effects of a proposal, policy statement, or plan; and

(c) its duty under section 21 to avoid unreasonable delay.

14) In relation to (a), the Applicant is a person directly affected by the extension or

waiver. The Applicant’s planner submitted that the late submissions should not be

accepted. He also raised the issue that the late submissions addressed concerns

(mainly the effects on cultural values) that were already contained in other ‘on

time’ submissions, and therefore the late submissions added nothing new to the

assessment of the proposal.

15) The late submitters were given an opportunity to appear at the hearing and

provide reasons why the submissions were late; why they could not have been filed

by 9 April 2020; and why their submissions should be accepted. No party

appeared at the hearing requesting that their submission be accepted.

16) In relation to (b) – the interests of the community in achieving adequate

assessment of the effects of a proposal – I make the following findings. The

matters raised in the late submissions were the same as those raised by other

opposing submitters. On this basis, the matters raised, including cultural issues,

are already before me to consider. Accordingly it is my view that an “adequate

assessment of the effects of a proposal” can be made without accepting the late

submissions.

Decision on the late submissions

17) It is my finding, for the reasons set out above, that the matters in the late

submissions will not impact on the appropriate assessment of this proposal and the

relevant statutory planning documents.

18) As I explained orally at the hearing, my decision is not to extend the time limit or

waive compliance with the time limit to accept the late submissions. On this basis

those late submissions are not accepted.

Summary of the proposal

19) A detailed description of the proposal was set out in the Applicant’s Assessment of

Environmental Effects (“AEE”) and in the Council’s reporting officer’s Section 42A

report. The following is a summary of the proposal.

20) Waitomo Sky Garden Ltd has applied for land use consent to establish and operate

a tourist facility in the Rural Zone. It is noted that consents are also likely to be

required from the Waikato Regional Council in relation to water, wastewater,

stormwater and earthworks. The Applicant advised that these would be sought

separately.

21) The various aspects of the proposal include:

http://www.legislation.govt.nz/act/public/1991/0069/latest/link.aspx?id=DLM233046#DLM233046

http://www.legislation.govt.nz/act/public/1991/0069/latest/link.aspx?id=DLM232530#DLM232530


• A 68.5 metre high tower structure (63.8 metre high main structure plus

lighting rod, navigation beacon and zipline platform on its roof) for a: slide,

bungy jump, swing, zipline and viewing platform; toilet facilities; and a café).

The total area being: 254m2 ground floor area, 825m2 total upper floor area,

254m2 indoors, and 571m2 outdoors;

• Seven zip line towers and landing platforms (up to a maximum height of 15.5

metres);

• Main building for entry/ticketing, the café, office/administration, digital (photo

and video department), staff rooms, and bathrooms – being two storeys with a

total area of 900m2;

• Viewing decks of 412m2 (upper) and 180m2 (lower) outside the main building;

• Lagoon/bungy touch pool; and

• Maintenance Building (90m2).

22) The proposed on-site car park would cater for:

• 162 car park spaces (staff and visitors);

• 5 accessible car park spaces;

• 6 bus park spaces;

• 7 campervan spaces; and

• A 40m drop-off zone.

23) The proposed hours of operation would be between 0800 hours to 2300 hours, 7

days per week, with staff being present on the site from 0650 hours to 2310 hours,

7 days per week. The proposed activities within the tower (bungy, slide, and

viewing platform) are proposed to operate between 0800 hours and 1900 hours, 7

days per week, and the zipline from 0800 hours to 2230 hours, 7 days per week.

24) The application set out that visitor and staff numbers will vary seasonally, with the

peak season between mid-October and mid-April. During the peak season, it is

estimated that there will be 950 visitors per day and up to 65 full-time equivalent

(FTE) staff, and in the off-peak season (mid-April to mid-October) it is anticipated

that this will reduce to 240 visitors per day and 28 FTE staff.

25) Mitigation planting, using indigenous plant species, is proposed around the car park

and buildings to screen those parts of the site from neighbouring sites. Restoration

planting with indigenous plant species is proposed within the lower part of the site

near to the stream, car parking area, and buildings. These parts of the site are

currently used for pastoral grazing. As part of the proposal, the stream running

through the site would be restored.

26) Water, wastewater, and stormwater services would be provided on site as there

are no reticulated network services available in the vicinity of the application site.

There is an existing spring on the site that provides a potable water supply to a

number of other properties via an easement through the site, but that the spring

will not be the source of a potable water supply for the proposed buildings or the

water required for the lagoon/touch pool. Two bores are proposed to be

constructed on the site to meet these needs.


27) The Applicant stated that, based on initial consultation with the Waikato Regional

Council, the proposed groundwater take is a permitted activity. Wastewater is to

be treated on-site and discharged to ground. Stormwater from buildings and

impervious surfaces will be stored in a combination of underground detention tank

and vegetated surface swales.

28) The Applicant explained that he proposes to subdivide the site to create two titles

in the future. The subdivision proposal did not form part of the consent sought.

Activity Status under the District Plan

29) Resource consent is required for the following reasons:

30) Rule 11.5.1.3 - Discretionary Activities specifies that “.....any activity that does not

comply with three or more of the Conditions for Permitted Activities set out in Rule

11.5.4” is a Discretionary Activity. Also, rule 12.5.14 – in relation to a Landscape

Policy area – is a Discretionary Activity. This is set out below.

Rule # Rule Name Status of

Activity

Comment

11.5.4.1

(e)

Maximum

building height

Discretionary The proposed main tower (68.5 metres)

and zipline towers (15 metres) will exceed

the permitted 10 metres maximum

building height.

This non-compliance results in the

proposal requiring consent for a

discretionary activity where three or more

conditions for permitted activities are not

complied with.

11.5.4.1(f) Maximum

building area

Discretionary The proposed main tower will occupy 254

square metres at ground level and the

upper deck area will be 850 square

metres. The main building will have a

ground floor level of 900m2. The

permitted building area is 200m2.





complied with.

11.5.4.3(a) Scale of activity Discretionary The proposed activities will employ up to

65 FTE persons which will exceed the

permitted threshold scale of 5 persons.





complied with.

11.5.4.5 Indigenous

vegetation

Discretionary While the construction area is principally

pasture, there will be small areas of

indigenous vegetation to be cleared at the


Rule # Rule Name Status of

Activity

Comment

base of the proposed tower and main

building. The clearance or removal of any

indigenous vegetation or indigenous

wetland vegetation is a discretionary

activity, except in specific circumstances

(eg, sustainable forestry, trimming for

maintaining overhead services,

maintaining pasture, tracks, and fences)



discretionary activity.

11.5.4.6 Earthworks Discretionary The proposed earthworks will involve

20,000 cubic metres over approximately

2.5 hectares of the site and some of those

works will be within 10 metres of the

spring-fed stream that runs through the

site. The permitted earthworks are those

not exceeding 2000m3 in any one

calendar year, are no closer than 10

metres from a stream or water body, are

not located on a Karst System, are on a

self-contained site, and do not threaten

the stability or integrity of any adjoining

property.




12.5.14 Landscape

Policy Area

Discretionary In the Landscape Policy Area those

activities that are a discretionary activity

in the underlying zone, and where the

following are exceeded:

• earthworks or land disturbance

greater than 1,000m2

• buildings exceed 200m2 in the

Rural Zone,

• clearance of any indigenous

vegetation in the Rural Zone




31) Overall, the activity status is a Discretionary Activity. There was no contention

between the Council’s and Applicant’s planner about the activity status.

32) The Resource Management (National Environmental Standard for Assessing and

Managing Contaminants in Soil to Protect Human Health) Regulations 2011 (“NES”)

came into force on 1 January 2012 and apply when a person seeks to undertake an

activity described in regulation 5(2) to 5(6) on a piece of land described in

regulation 5(7) or 5(8).


33) Mr Whyte set out in his section 42A report that:4

Following a review of the historical aerial photographs contained within Council’s

records, a HAIL activity does not appear to have been undertaken on the site.

In accordance with Regulation 5(7), the site is not a ‘piece of land’ and consent

is not required under the Resource Management (National Environmental

Standard for Assessing and Managing Contaminants in Soil to Protect Human

Health) Regulations 2011.

34) No person raised a contrary view about the NES, and I accept that no consent is

required for this.

Relevant statutory provisions considered

35) As required, I have considered the application in terms of the matters set out in

section 104 of the RMA which requires me to, subject to Part 2, have regard to–

(a) any actual and potential effects on the environment of allowing the activity;

and

(ab) any measure proposed or agreed to by the applicant for the purpose of

ensuring positive effects on the environment to offset or compensate for any

adverse effects on the environment that will or may result from allowing the

activity; and

(b) any relevant provisions of—

(i) a national environmental standard:

(ii) other regulations:

(iii) a national policy statement:

(iv) a New Zealand coastal policy statement:

(v) a regional policy statement or proposed regional policy statement:

(vi) a plan or proposed plan; and

(c) any other matter the consent authority considers relevant and reasonably

necessary to determine the application.

36) Section 104 is subject to Part 2 of the RMA. The Court of Appeal in the RJ

Davidson case stated, among other things:5

"Having regard to the foregoing discussion we agree with Cull J’s conclusion that

it would be inconsistent with the scheme of the Act to allow regional or district

plans to be “rendered ineffective” by general recourse to pt 2 in deciding

resource consent applications, providing the plans have been properly prepared

4 Section 2 of the Section 42A Report. 5 RJ Davidson Family Trust v Marlborough District Council [2018] NZCA 316, para 83.


in accordance with pt 2. We do not consider however that King Salmon prevents

recourse to pt 2 in the case of applications for resource consent. Its implications

in this context are rather that genuine consideration and application of relevant

plan considerations may leave little room for pt 2 to influence the outcome.”

37) In my view that judgment (in summary) says that notwithstanding the Supreme

Court’s King Salmon decision, decision makers must consider Part 2 when making

decisions on resource consents. However, where the relevant plan provisions have

clearly given effect to Part 2, there may be no need to give further consideration to

Part 2, as it would not add anything to the evaluative exercise.

38) Both the Council and Applicant agreed that the ODP, which was made operative in

2009, had not been prepared to give effect to the Regional Policy Statement

(operative in 2016), or to any relevant National Policy Statement since 2009; and

also the relevant plan provisions had not been prepared so as to reflect Part 2 of

the RMA.

39) I agree with the Council and Applicant that, in this considering this application,

recourse to the higher order RMA documents, including Part 2, is necessary. I

record that in doing so, it has significantly contributed to my determination of this

application – particularly in relation to cultural matters which I address in more

detail below.

Relevant standards, policy statements and plan provisions considered

40) In accordance with section 104(1)(b)(i)-(vi) of the RMA, I have had regard to the

relevant policy statements and plan provisions of the following documents:

• Waitomo District Plan;

• Waikato Regional Policy Statement;

• The Maniapoto Environmental Management Plan; and

• National Environment Standard for Assessing and Managing Contaminants in

Soil to Protect Human Health (Regulations 2011 (NES (Soil)).

41) I have also had regard to the Heritage New Zealand Pouhere Taonga Act 2014

(HNZPTA) which addresses the identification, protection, preservation and

conservation of New Zealand’s historical and cultural heritage. This is relevant

given the wāhi tapu area listing for Pukeroa which took effect on the 17 June 2020

pursuant to section 73 of the HNZPTA.

Summary of evidence heard

42) I have set out a brief summary of the evidence heard, and referred to and/or

discussed that evidence in more detail in the sections that follow.

43) The Council’s reporting planner, Mr Whyte, recommended that the application be

granted consent subject to conditions. He maintained this position once he had

heard all of the evidence and material at the hearing. In forming his opinion on

the granting of consent, Mr Whyte relied on expert opinions of: Mr Chris Hardy

(Civil), Mr Stephen Brown (Landscape and visual amenity), Mr Michael Allan


(Noise), Mr Michael Thorne (Traffic), and Mr Russell Allison (Geotechnical).

44) The Applicant, Mr Heskett, noted his background and experience in adventure

tourism/activities, and described the proposal on the subject site as well as the

alternative site he had earlier considered in Waitomo. He explained that he wanted

to achieve an above ground attraction as a complementary activity to the Waitomo

Caves experience, and in doing so help boost the local economy, creating

additional jobs for local community. He set out his ongoing consultation with and

support from Mr Bob Koroheke of Te Kauae Marae in relation to his proposal. He

also explained the more recent engagement with Ms Harmon (representing a

number of submitters).

45) Mr Heskett also addressed the Statement of Intent and how he suggested he and

Te Kauae Marae could work together. He also suggested a partnership

arrangement, which was briefly discussed at the hearing. These matters are

discussed in more detail later.

46) Mr Aplin presented planning evidence, addressing the various effects of the

proposal (positive and adverse) as well assessing it against the relevant statutory

planning provisions. He also provided a draft set of conditions that the Applicant

was prepared to accept should consent be granted.

47) Mr Mansergh presented expert landscape and visual evidence and agreed with Mr

Brown’s peer review of his evidence. Mr Black (Traffic), Mr Hegley (Noise) and Mr

Hill (Cultural) all presented expert evidence and answered questions during the

hearing. The expert evidence of these witnesses is addressed below.

48) Mr Aplin filed a Reply Statement and attached to it: email correspondence with Te

Kauae Marae (Ms Harmon); email correspondence with HNZPT in relation to

conditions; the letter of support from Mr Chris Koroheke (that had been tabled at

the hearing); the Statement of Intent (which had also been tabled at the hearing);

and a revised set of conditions that the Applicant was offering and would accept

should consent be granted.

49) The Mana Whenua submitters presented on a range of matters, but all related to

the physical, cultural and spiritual significance of the site, and stated that the

proposal was inappropriate on this site. Detailed submissions had been lodged,

including the document Te Kauae Marae – Submission to Oppose the Sky Garden

Development which set out the concerns of Te Kauae Marae with the proposal.

These concerns were elaborated on by Ms Harmon, Mr Keogh (Te Kauae Marae),

and Mr Greg Koroheke, Ms Harmon (Te Whanua Harmon) as well as Ms Nikki

Koroheke and Ms Hohua - and the other speakers called on to present evidence for

these submitters (addressed below ).

50) The Mana Whenua submitters did not oppose the activity per se, and in fact

supported the concept from a business perspective, but not on this site, which was

wāhi tapu. Mr Keogh set out under the heading A Maori Business Perspective the

following:

From a Maori Business perspective of how Maori interact with business and its

resources, is to ensure that the ‘bottom line’ is not at the expense of the

‘mana line’. The aspirations of Maori and Iwi businesses and commercial


entities are to be the enhancement and protection of mana, and should be

before any bottom line aspirations.

The mana of maunga, wahi tapu, awa and taonga are to be prioritised. Maori

and Iwi businesses also acknowledge the values of Manaakitanga,

Kaitiakitanga and Whanaungatanga.

Ngati Korokoro kaumatua, Fraser Toi defined Manaakitanga as the ‘art of

lifting and enhancing Mana’. The construction of this development on Pukeroa

including the commercial activities will significantly impact negatively on its

mana and subject it becoming a circus act for commercial entertainment.

I am not against commercial venture developments in fact I am personally

passionate about New Zealand enterprise and entrepreneurship ventures, I

have a Masters in Entrepreneurship from the University of Otago and lead

over 700 full time tertiary students in Business and Legal studies as an

Associate Dean at Toi Ohomai Institute of Technology, but the Sky tower

development on Pukeroa maunga is inconsistent with the values of Iwi and

contrary to the efforts and progress of mutual understanding between Iwi and

the Crown.

51) Dr Hikuroa presented expert evidence on behalf of the Te Kauae Marae. He

addressed: who should assess how mauri is impacted; how impacts to mauri can

be determined; and how mātauranga Māori and science can be integrated.

52) Mr Ormsby spoke on behalf of the Maniapoto Maori Trust Board as part of the Te

Kauae Marae submission opposing the development. He set out Maniapoto’s

whakapapa to this area.

53) The Mana Whenua submitters acknowledged Mr Heskett’s previous engagement

with Mr Bob Koroheke. They also acknowledged his more recent engagement with

Te Kauae Marae, the Statement of Intent, as well as Mr Heskett’s offer to discuss a

partnership arrangement. However, the submitters remained opposed to entire

proposal given the cultural importance of the site. They requested that the

application not be granted resource consent.

54) I address the cultural significance of the site and the submitters concerns in

greater detail below.

55) Mr Dawson set out the positive benefits the proposal would have in terms of direct

injection of capital and jobs to the area. He submitted that the proposed “above

ground” activity would complement the Waitomo caves experience, and would

create tourism benefits including the likelihood of people staying an additional night

in the area with the flow on economic benefits this would have for accommodation,

food and other commercial providers of goods and services.

56) While Mr Dawson supported the proposal, he was not necessarily promoting the

development on the subject site. His support was more general in terms of

economic development and wellbeing.

57) Legal submissions were filed by Ms Vertongen, Legal Advisor of Pouhere Taonga, in

relation to this resource consent. Attached to the legal submissions was the New


Zealand Heritage List / Rārangi Kōrero – Report for a Wāhi Tapu Area Pukeroa (List

no.9822).

58) A letter from Mr Alec Duncan (Beca) of behalf of the Fire and Emergency New

Zealand was tabled at the hearing.6 It noted conditions and/or an advice note

recommended by Fire and Emergency New Zealand, in the event of consent being

granted.

Principal issues in contention

59) The entire proposal was in contention. While the majority of submitters supported

the proposal, a number of submitters opposed it due to the significant adverse

effects the proposal would have, particularly on the cultural values of Mana

Whenua given the significance of the site to them.

Main findings on the principal issues in contention and reasons for refusing

consent

60) Prior to specifically addressing the issues in contention, I record that I adopt

aspects of Mr Whyte’s section 42A report and the corresponding sections of the

Applicant’s AEE pursuant to section 113(3)(b) of the RMA. This is particularly in

relation to the sections addressing the effects related to, and the relevant

objectives and policies for: landscape – visual, amenity and character effects,

engineering (geotechnical, earthworks, wastewater, stormwater, water supply,

transport/traffic, noise/vibration; and soil contamination (noting that this does not

include the cultural effects arising from those matters which are addressed

separately).

61) While I acknowledge the submitters’ concerns about the effects from the proposal

in terms of landscape – visual, amenity and character effects, engineering

(geotechnical, earthworks, wastewater, stormwater, water supply, transport/traffic,

noise/vibration; and soil contamination, there was little, and in some case no,

matters in contention between the ‘technical’ experts for the Applicant and the

Council. Based on the expert evidence before me, I am satisfied that any effects

(apart from how these matters affect the cultural concerns of the Mana Whenua

submitters) in relation to those matters could be appropriately avoided, remedied

or mitigated.

62) I also find that in relation to the matters set out above, the proposal would be

consistent with the relevant ODP’s objectives and policies. These were addressed

in the Applicant’s AEE and expert evidence presented at the hearing, and in the

section 42A report.

63) Adopting those aspects of the section 42A report and the AEE and cross-

referencing to them, means there is no need to repeat in any detail what was

addressed in a comprehensive manner in those documents. However, I address

them briefly below.

Positive effects

6 Letter dated 8 June 2020.


64) It is accepted that the proposal would have significant positive economic benefits.

This would be in terms of the income generated by the proposal itself and the

direct employment of people as set out in the AEE, as well as flow-on effects to

other tourist-oriented businesses as a consequence of increasing the length of stay

of people visiting the area. It would also create economic activity in terms of the

construction activity (employment during construction as well as the purchase of

construction materials).

65) The Economic Impact Analysis prepared by Martin Jenkins (Appendix R of the

application) discussed the economic benefits and estimated that of the $20 million

estimated construction costs, $1.25 million would be spent directly in the Waitomo

and Otorohanga districts, supporting 5 full-time jobs. During operation from year

three of the project, the direct + indirect + induced economic benefit was

estimated to be $6.1 million and 90 full-time equivalent jobs. Anticipated visitor

and ongoing contribution to GDP would be $6.4 million, with employment for 143

full-time equivalent persons.

66) Mr Dawson (the CEO of Hamilton and Waikato Tourism) presented at the hearing

and addressed the positive economic effects of a further attraction as a significant

benefit to the local tourist industry, as well as a source of local employment.

67) The Applicant also offered to undertake a number of things that would have

positive environmental and cultural effects. These were outlined in the Statement

of Intent letter and evidence and included, among other things: the restoration of

the stream, replanting parts of the site (using locally sourced native plant species,

restoring the Pa site on the tihi (as identified in the archaeological assessment) if

the Mana Whenua wanted this to occur, fencing off the spring/puna areas and

continuing to provide water to 42 and 46 Waitomo Caves Road, as well as

upgrading the infrastructure associated with the spring to ensure a quality,

uninterrupted supply.

Landscape – visual amenity and character effects

68) A landscape and visual assessment was prepared by Mr Mansergh, the Applicant’s

landscape architect, as part of the application. Mr Brown, the Council’s appointed

landscape architect, peer reviewed Mr Mansergh’s assessment. Both Mr Mansergh

and Mr Brown appeared at the hearing.

69) Both experts stated that the built form of the proposal, and in particular the tower,

would be a prominent feature. Both experts stated that the built form would be a

significant change to the existing landscape, but that change in the context of the

existing environment could have an overall positive effect on the landscape and

would not be inconsistent with the Landscape Policy Area that exists over part of

the site. In this context Mr Brown noted that effects on landscape, character, and

amenity are not confined to observation from a fixed point, and may include effects

from even brief observation of the activities on the site.

70) Both experts opined that overall any adverse landscape, character and visual

amenity effects would be no more than minor. In this respect there were no issues


in contention between the two landscape experts. I agree with their assessment.

Transport/traffic

71) The Applicant addressed the transportation and traffic effects. There were no

matters in contention with the Council’s expert Traffic advisor. Agreement had also

been reached with the New Zealand Transport Agency in terms of necessary road

upgrading to the State Highway.

72) Appropriate conditions of consent in relation to traffic matters had been offered by

the Applicant to ensure any adverse effects were appropriately avoided, remedied

or mitigated.

Noise

73) There was some contention between the Applicant’s and Council’s noise experts

with respect to how night-time noise should be measured. This was addressed in

the expert evidence of Mr Hegley for the Applicant and Mr Allan for the Council.

74) Mr Allan’s noise assessment questioned the Applicant’s noise assessment referring

to LAeq noise standards rather than the LA10 noise standards of the ODP. As the

application did not seek to exceed the noise standards of the ODP, Mr Allan

questioned whether the proposed activity could meet the night-time noise levels

associated with the activities, particularly those on the tower.

75) Mr Hegley addressed Mr Alan’s concerns at the hearing, disagreeing with his

assessment and the use of the of the LA10 noise standards of the ODP. This matter

was not resolved at the hearing.

76) In Mr Aplin’s Reply Statement he set out the following:7

I have spoken to Mr Nevil Hegley (Acoustic Engineer, Hegley Acoustics) to

clarify the implications of the difference between Council’s proposed

condition 23 and the proposed amendments to condition 23 as set out in my

SPE.

Mr Hegley is still of the view that Council’s proposed condition 23 is

inappropriate for the reasons set out in his evidence including that it is

possible with unattended monitoring, to separate each noise source to

determine the applicable noise level at 42 and 46 Waitomo Caves Road.

Mr Hegley has advised that he would be comfortable with the following

proposed condition (condition 24 set out in Appendix A) relating to attended

noise measurements which determine the applicable noise level at 42 and 46

Waitomo Caves Road which is sought by Council’s proposed condition 23.

Attended noise measurements shall also be undertaken for a minimum of

one day (8am – 11pm) over peak periods. These measurements must

include busy periods for the bungy, zip line and car park use. Monitoring

must be undertaken close enough to the noise source, so the measured

levels are not contaminated by other environmental noise sources with an

adjustment made to each measurement to determine the applicable

7 Paragraphs 7 to 9 of the Reply Statement.


cumulative noise level at 42 and 46 Waitomo Caves Road.

77) Had consent been granted I would have imposed this as a condition of consent.

Archaeological (not relating to cultural effects8)

78) As set out above the site contains a listed and scheduled Archaeological site. It

was accepted by the parties that the development would avoid that specific area of

the listed archaeological site, and that the Applicant had provided information on

how they would avoid any adverse effects on archaeological values through the

siting of the facilities and their associated earthworks.

79) Conditions of consent were also offered that specified:

Pā Site

51 No buildings and structures shall occur on land subject to the Tihi, Ditch and

Pits (x2) identified in the plan submitted by the consent holder as required by

condition 52 of this consent.

52 Prior to any works occurring onsite, a copy of a plan clearly showing the

proposed buildings, proposed structures, Tihi, Ditch and Pits (x2) identified in

the Archaeological Assessment prepared by CGF Heritage dated 21 November

2019 shall be provided to Heritage NZ for approval. Once approved by

Heritage NZ, a copy shall be provided to Council within seven days.

80) Moreover, the Applicant in his Statement of Intent offered to gift back the Pā site

and Tihi of Pukeroa (the area of the archaeological site) so that Te Kauae Marae

could retain ownership of the maunga and have access all year round.

Construction (not relating to cultural effects)

81) There would be construction related effects. However, had consent been granted

the conditions offered by the Applicant would have ensured that any adverse

effects were appropriately avoided, remedied or mitigated. These included the

development of and adherence to a Construction Management Plan to address

matters such as:

• timing of works (including any staging required);

• an Erosion and Soil Control Plan (ESCP), including drawings, specifications and

locations of mitigation measures as necessary;

• construction noise management measures;

• site access and Traffic Management measures;

• storage of fuel and/or lubricants and any handling procedures;

• contingency plans (including use of spill kits);

• protocols for the discovery of archaeological material;

• construction traffic management measures, including measures to be adopted

in accordance with the NZTA Code of Practice for Temporary Traffic

Management;

• on-site parking areas for construction staff;

• measures for identification and remediation of contaminated soil; and

• environmental compliance monitoring and reporting.

8 Cultural effects are discussed below.


82) Also, all construction work (including any demolition and/or site preparation works)

would be designed, managed and conducted to ensure that construction noise

complied with the requirements of NZS 6803:1999 Acoustics – Construction Noise

for rural areas. Moreover, vibration from construction work could not exceed the

limits of, the German Standard DIN 4150 1999-02 Structural Vibration – Effects of

Vibration on Structures.

83) Overall, construction effect could be appropriately avoided, remedied or mitigated.

Health and Safety

84) Fire and Emergency New Zealand sought certain conditions be imposed should

consent be granted. They also filed a letter seeking an advice note in the event of

the conditions sought in the submission from Fire and Emergency New Zealand not

being imposed.

85) The conditions sought by Fire and Emergency New Zealand were included in the set

of conditions offered by the Applicant (should consent be granted). On the basis

that the conditions would have been imposed had consent been granted, the

requested advice note would not have been needed.

Cultural

The Mana Whenua Submitters

86) The Mana Whenua Submitters all highlighted the physical, cultural and spiritual

significance of this site to them. They submitted that in terms of Te Ao Māori,

these three aspects were not separate but one in the same, and therefore the site

and this proposal needed to be evaluated in this context.

87) The Submitters set out the history and their whakapapa to this site (including the

Pā site and maunga), and that it (the entire site) was considered wāhi tapu

(sacred). Much of the evidence presented was detailing their connection to the site

and area, the importance of retaining a clear connection to it (as kaitiaki), and

ensuring the mauri of the land could be restored (the evidence of Dr Hikuroa).

88) While the Submitters were clear about the significance of the site to them, and that

it was sacred, they also set out that the site had been listed as a wāhi tapu by

Pouhere Taonga (addressed below). This was seen as confirmation, in terms of the

purpose of the Heritage New Zealand Pouhere Toanga Act 2014 (“HZPTA”), that

the site was as significant and important as they claimed.

89) Given the above, and the nature, scale and intensity of the proposal, in particular

the scale of the tower, the activities stemming from this (bungy, zipline, and swing

over large parts of the site) and the number of people who would be on site at any

one time, the entire proposal was opposed. This also included the likely extensive

earthworks and geotechnical work that would be necessary to construct the

proposal (especially the tower and carpark areas). Concerns were raised,

particularly by Nikki Koroheke, about the potential physical, but also spiritual

impact, these works would have on the puna on the site.


90) The Submitters accepted that the scheduled archaeological site (the Pā site) would

not be destroyed or physically altered by the proposal given the location of the

activities associated with the proposal, and the conditions of consent proposed by

the Applicant. However, the Te Kauae Marae and Te Whanau Harmon Submitters

made the point that it was not solely about avoiding development on the Tihi; their

concerns in terms of the cultural values of the site extend to the surrounding area,

as well as aspects of the proposal relating to waiora and the mauri of the puna on

the site.

91) In summary, it was the Mana Whenua Submitters’ strongly held position that that

nature, scale and intensity of the activity over the entire site was unacceptable due

to their cultural and spiritual connection to the site; that the entire site is wāhi

tapu, and the proposal would have significant adverse effects on them physically,

culturally and spiritually. Moreover, the submitters advised that the significant

adverse effects could not be avoided or mitigated to an extent that would make the

proposal ‘acceptable’ to them.

92) The Mana Whenua Submitters acknowledged that Mr Heskett had engaged with Mr

Bob Koroheke, and that he, as a kaumātua, had been supportive of the proposal.

Although they meant no disrespect to Mr Bob Koroheke, his views did not represent

all of the views of the Te Kauae Marae. It was the Te Kauae Marae, by resolution

dated 8 March 2020 and signed by Mr Chris Koroheke, Chair, Te Kauae Marae

Trustee/Committee, that agreed to lodge an objection opposing the granting of the

consent to Waitomo Sky Garden Limited.

93) Te Kauae Marae Submitters also acknowledged the letter dated 23 June 2020 from

Mr Chris Koroheke tabled at the hearing by the Applicant. That letter supported

the consultation process and agreement Mr Heskett reached with Mr Bob Koroheke.

I have not placed much weight on Mr Chris Koroheke’s letter, as it is not clear to

me if it is his personal letter or was authorised by the Te Kauae Marae

Trustee/Committee. I also record that Mr Chris Koroheke did not attend the

hearing and therefore could not be questioned about the content of the letter.

94) I set out below the extent to which the Applicant has attempted to address the

concerns of Mana Whenua, including the Statement of Intent, a possible

partnership arrangement and a set of consent conditions. While laudable, the

Mana Whenua Submitters where clear, for the reasons set out above, that the

proposed development was unacceptable due to the significant level adverse

effects they would experience and have to live with on an ongoing basis.

Heritage NZ Pouhere Taonga (Pouhere Taonga) – Wāhi Tapu area listing

95) Pouhere Taonga had lodged a submission to the application. At the time of making

its submission, a wāhi tapu area listing pursuant to section 68 of the Heritage New

Zealand Pouhere Taonga Act 2014, encompassing nearly the entire subject site,

had been notified for submissions.

96) Legal submissions were filed by Ms Vertongen Legal Advisor of Pouhere Taonga in

relation to this resource consent. Attached to those legal submissions were the

New Zealand Heritage List / Rārangi Kōrero – Report for a Wāhi Tapu Area Pukeroa

(List no.9822).


97) As set out in Ms Vertongen’s submissions:9

On 17 June 2020 the wāhi tapu area listing for Pukeroa (List No. 9822) took

effect pursuant to section 73 of the HNZPTA.

98) The report confirms that Pukeroa is considered a Wāhi Tapu Area of the hapū Ngāti

Kinohaku, Ngāti Huiao, Ngāti Te Peehi and all associated hapū of Ngāti Maniapoto

as the dwelling place of the tūpuna Maniapoto, Kinohaku, Tūirirangi and other

descendants of the ancestor Rereahu.10 It also sets out:11

Te Kauae marae is the current tūrangawaewae of Ngāti Kinohaku and Ngāti

Huiao.

The hapū of Ngāti Kinohaku, Ngāti Huiao and Ngāti Te Peehi and the wider iwi

of Ngāti Maniapoto demonstrate a continual occupation and connection to

Pukeroa Hangatiki that stretches back generations. This hill pā is an

important heritage legacy for all of Ngāti Maniapoto. Ngāti Maniapoto is

currently going through the Waitangi Tribunal process for the Te Rohe Potae

WAI898 inquiry. Wāhi Tapu Area status for Pukeroa Pā by Heritage New

Zealand Pouhere Taonga demonstrates a continued commitment to work with

Ngāti Kinohaku and Ngāti Maniapoto to recognise sites of ancestral

importance.

99) The listing of Pukeroa as a wāhi tapu area in the New Zealand Heritage

List/Rārangi Kōrero does of itself does not confer protection on it. However, it

clearly confirms the views held and expressed by the Mana Whenua Submitters at

the hearing. The purpose of the listing is to inform the public and owners of the

existence of the place; to be a source of information about the wāhi tapu place for

the purposes of the RMA; and to identify measures that local authorities should

take to assist in the conservation and protection of the wāhi tapu area.

100) The listing of the site per se is not the sole determinative factor in my decision to

refuse consent. However, the listing is clear evidence that the site is important

and sacred to Mana Whenua. It adds weight to the Mana Whenua Submitters’ view

that the adverse cultural and spiritual effects from the proposal will be significant

on them.

The Applicant

101) The Applicant addressed the cultural effects of the proposal and the concerns of the

Mana Whenua Submitters, in particular those of the Te Kauae Marae. Mr Heskett,

Mr Norman Hill and Mr Aplin addressed the cultural and spiritual effects of the

proposal and the engagement undertaken with Te Kauae Marae and others.

102) Mr Heskett acknowledged the significance of the site and area to Mana Whenua

and Te Kauae Marae, and has actively engaged with Te Kauae Marae. As described

by Mr Heskett, and as set out in Mr Hill’s evidence, Mr Heskett commenced Iwi

9 Paragraph 3.1 of Ms Vertongen’s legal submissions. 10 The extent of Wāhi Tapu Area includes the land known as Lot 2 Deposited Plan 409891 (CT 436263), Lot 3 Deposited Plan 409891 (CT 436264), South Auckland Land District (known as

Pukeroa Pā), which covers the vast majority of the subject site. 11 Pages 10 and 11 of the New Zealand Heritage List/Rārangi Kōrero.


engagement for the Hangatiki site in February 2019. As set out in Mr Hill’s

evidence:12

Initial consultation discussions with Te Kauae Marae began with members of

the Koroheke whanau but subsequently moved to meetings alone between

Kaumātua Bob Koroheke and the developer (John Heskett). As the lead

Kaumātua of Te Kauae Marae, Kaumātua Bob asserted mandate and led to

direct discussions and negotiations with John Heskett.

It is my understanding that consultation between John Heskett and

Kaumātua Bob Koroheke over a ten-month period led to a position of support

for the application from Te Kauae Marae via Kaumātua Bob. Unfortunately,

following health complications, Kaumātua Bob Koroheke passed in March

2020.

103) Mr Heskett said that he understood that he had the support of Te Kauae Marae for

the proposal. Notwithstanding the submissions in opposition of the proposal from

the Mana Whenua Submitters (including from Te Kauae Marae), he understood he

still had the support of the Marae. Mr Heskett tabled a letter from Mr Chris

Koroheke (chairperson of Te Kauae Pā Marae Committee) dated 23 June 2020, in

which Mr Chris Koroheke, following Kaumātua Bob Koroheke’s wishes, supported

the proposal. I note here that the Te Kauae Marae Submitters consider that letter

from Mr Koroheke to be his personal view, and state that it was not discussed or

authorised by the Te Kauae Pā Marae Committee.

104) Mr Heskett also tabled the ‘Statement of Intent’ letter, dated 5 June 2020, that

was sent to Te Kauae Marae. In that letter he set out a number of things he was

willing to offer including: donating money to the Marae; establishing a community

garden; ensuring the continued water supply from the puna (and up grading the

infrastructure); restoring the Pā site on the Tihi; and gifting back the Tihi so that

Te Kauae Marae could retain ownership of the maunga and to have year round

access to it.

105) At the hearing, Mr Heskett, offered a ‘partnership arrangement’ with Te Kauae

Marae in relation to the proposal. He and representatives of the Te Kauae Marae

Submitters met during a break to discuss what this might entail. In reporting back

at the hearing, the Te Kauae Marae Submitters said no agreement had been

reached and they sought that application be refused consent (discussed below).

While they appreciated Mr Heskett’s offer, it was not acceptable due to their

strongly held views that the proposed development would have unacceptable

adverse effects on the sacred site and was contrary to their cultural values.

106) As I stated at the hearing, many of those things offered by Mr Heskett were not

matters I could consider in resource management terms, or impose as conditions in

terms of section 108 of the RMA if consent were to be granted. Mr Aplin and Mr

Whyte acknowledged that this was the case.

107) Mr Norman Hill, a Cultural and Environmental consultant, provided a Cultural

Impact Assessment (CIA) and addressed this at the hearing. Mr Hill also assisted

in the engagement with the Te Kauae Marae submitters during the hearing.

12 Paragraphs 24 and 27 of Mr Hill’s evidence


108) Mr Hill set out in the CIA Te Kauae Marae has a “special ancestral, cultural and

spiritual association with Pukeroa Pā site and environs and interest in what occurs

on the site”.13 He also stated:14

The tihi o Pukeroa is understood to be of significant cultural importance

being firstly a pou of tribal identity for not just Ngati Kinohaku but for other

iwi as well. It is an important boundary or rohe marker.

109) He also acknowledged the significance of Wai Ora to the Mana Whenua submitters

in relation to the puna on the site.15 He further stated:16

Issues raised in the Te Kauae Marae submission refer to cementing the car

park areas, infrastructure, covered walkways and a big building to host the

visitors are all environmental concerns.

One of the most adverse effects identified regarding the proposed application

for Te Kauae Marae are the visual effects. The tower, whilst aiming to blend

into the background, cannot be hidden or blended. It is visual pollution that

cannot be screened.

110) Mr Hill also addressed that the Te Kauae Marae had submitted an application to

Heritage NZ Pouhere Taonga (Pouhere Taonga) on 11 November 2019 to protect

the Tihi as wāhi tapu.17 I have discussed above Pouhere Taonga’s listing of the site

as wāhi tapu.

111) Mr Hill discussed the consultation that had been undertaken. He acknowledged

that the wider Te Kauae Marae membership/whanau had felt aggrieved by the

consultation process between Kaumātua Mr Bob Koroheke and Mr Heskett and the

exclusivity of the process. Mr Hill stated:18

While there has not been complete agreement on matters or the ideal

consultation outcome between whanau of Te Kauae Marae, the consultation

process for this application is difficult to fault.

112) In summary Mr Hill, acknowledged and understood the significance of this site (and

area) to the Mana Whenua submitters. He accepted that the Hangatiki area has

historical, cultural and spiritual importance to mana whenua and the hapū of Ngaati

Kinohaku and Te Kauae Marae, and that the protection of heritage, identity and

environmental attributes, such as mauri, are vital to the well-being of mana

whenua.

113) Furthermore, he recognised the commitment of Mana Whenua to protect the

significance of the Tihi. In his view, given that the Tihi would be protected, he saw

13 Paragraph 33 of Mr Hill’s evidence. 14 Paragraph 44 of Mr Hill’s evidence. 15 Paragraphs 37 to 40 of Mr Hill’s evidence. 16 Paragraphs 41 and 42 of Mr Hill’s evidence. 17 At the time of submitting his evidence, Pouhere Taonga had not made any decision on this

application. 18 Paragraph 29 of Mr Hill’s evidence


no reason why the consent sought should not be granted. However, he added:19

….In saying this and given the strong link between cultural issues and

environmental issues, agreement should be reaffirmed by Te Kauae

leadership in accordance to the legacy of the late Bob Koroheke.

114) As addressed below, the agreement of Te Kauae leadership in accordance with the

legacy of the late Bob Koroheke (and the letter from Chris Koroheke) was not

reaffirmed by Te Kauae Marae submitters at the hearing.

115) From a planning perspective, Mr Aplin addressed this matter in his evidence-in-

chief, stating:20

Cultural effects have been assessed by Norman Hill in form of a CIA. The CIA

recommends that cultural and environmental issues raised by mana whenua,

proposed mitigation, remedial or avoidance measures should be addressed

through appropriate consent conditions. On this basis, the CIA concludes that

is considered that the proposed Sky Garden development will not be

inconsistent with or have overly negative impacts on the cultural values

associated with the area.

116) In his Reply Statement, Mr Aplin stated under the hearing of Partnership

Agreement that if consent was granted, the Applicant confirmed that a partnership

arrangement would be sought with the Te Kauae Marae. However, Mr Aplin

acknowledged:21

Any partnership agreement (which may include but not limited to the

matters identified in the statement of intent attached as Appendix B) in my

opinion is a matter outside the resource consent process and therefore

cannot be a condition of consent.

117) Mr Heskett is to be commended on his engagement and consultation with the late

Mr Bob Koroheke. Mr Heskett understood he was engaging with the right

people/person in term of the Te Kauae Marae (and more recently with Mr Chris

Koroheke, including his letter of continuing the support given by Mr Bob Koroheke).

118) Mr Heskett has also attempted to engage with and get the support of the wider Te

Kauae Marae and other submitters since the passing of Mr Bob Koroheke. This

includes his Statement of Intent and his offer of a ‘partnership’ arrangement with

the Marae, made at the hearing.

119) It is clear from the Reply Statement filed by Mr Aplin that a further attempt was

made by the Applicant to engage with the Submitters, and to see if any agreement

could be brokered. There was no agreement. I address this further in the

following section, where I address the concerns of the Mana Whenua Submitters.

120) A set of conditions (in addition to those provided at the hearing) was filed with the

Reply Statement. These, among other things, sought to address some of the

19 Paragraph 57 of Mr Hill’s evidence 20 Paragraph 33 of Mr Aplin’s evidence-in-chief 21 Paragraph 24 of Mr Aplin’s Reply statement


concerns of the Mana Whenua submitters from a cultural perspective. They

included conditions relating to:

• protecting the Pā site (including the Tihi, ditch and pits),

• allowing cultural monitors onsite to enable supervision of earthworks

alongside the consent holders archaeologist in the event of any archaeological

deposits were encountered during earthworks,

• enabling access to and clarification of the geotechnical and construction plans,

and

• establishing a Kaitiaki Group to, among other things, enable opportunities for

any concerns and issues of tangata whenua or the community to be reported

to and responded to by the consent holder.

121) Had consent been granted, the conditions offered by the Applicant as part of the

Reply Statement would have formed the basis of an appropriate set of consent

conditions.

Overall findings on the cultural effects

122) In light of the evidence discussed above, I conclude that there would be significant

adverse cultural effects if the application was granted in the absence of Mana

Whenua support. Those effects have not been avoided or mitigated.

Statutory Planning Provisions

123) I have addressed the effects of the proposal above. Other than the cultural issues,

I have already recorded that in relation to all of the other matters the effects could

be avoided or mitigated and would be consistent with the relevant objectives and

policies of the planning documents. However, the effects of a proposal cannot be

considered in isolation from the relevant statutory planning provisions.

Accordingly, given the significance of the cultural issues, I have set out the

relevant planning provisions in some detail.

124) The Council and Applicant agreed that recourse to the higher order RMA

documents, including Part 2, would add significantly to my evaluative exercise in

determining the application – particularly in relation to cultural matters. This was

due to the District Plan being made operative in 2009, and so it does not ‘give

effect’ to the current higher order documents. I agree with them.

125) Having stated the above, the ODP does contain relevant provisions relating to

cultural effects. These include:

Section 1 – Introduction – part 4 Maori Issues

4.7 The themes expressed recognise the strong legislative requirement

toward Maoridom with the Resource Management Act, 1991, recognise

the strong past and present Maori influence within the Waitomo

District, and hopefully will allow liaison with wisdom and

understanding as expressed by prominent Maori leaders in the early

1880’s, which concludes “...we wish you to understand that, if our


petition is granted, we will strenuously endeavour to follow such a

course as will conduce to the welfare of this Island.”

Rural Zone

11.2 Resource Management Issues

11.2.4 – Issues Earthworks, vegetation clearance and land development for

rural activities may damage or destroy sites of archaeological, historical and

cultural significance.

Objective 11.3.3

To ensure that significant archaeological, historical and cultural features are

protected from adverse effects arising from the removal of vegetation, or

other development of land. See also Section 21, Heritage Resources.

Policy 11.4.3

To avoid, remedy or mitigate the adverse effects of rural development on

sites, areas or landscapes of significance in terms of their contribution to

amenity or their archaeological, historical, cultural or ecological importance.

Chapter 21 Heritage Resources

21.3 Objectives

21.3.2 To protect sites, features and buildings of historical or cultural

significance.

(Underlining is my emphasis.)

126) The Maniapoto Environmental Management Plan is also relevant and I have had

regard to it. The relevant sections include:

PART 18 – LAND

18.3.1 Objective: Unsustainable and inappropriate land use practices

Land management and land use enhance and protect the holistic functioning

and interconnected relationships of the natural environment and are

compatible with Maniapoto values and principles

18.3.1.1 Policy

Land management and land use is sustainable and the mauri of land is

protected and enhanced.

PART 26.0 - TOURISM AND RECREATION

26.3.1 Objective: Tourism activities

To ensure tourism activities are sustainable and provides for environmental,


social, cultural and economic wellbeing of Maniapoto while protecting

Maniapoto sites and culture.

26.3.1.1 Policy

Tourism in the Maniapoto rohe is operated in a manner that provides for

environmental, social, cultural and economic wellbeing of Maniapoto while

protecting Maniapoto sites and culture.

Action

(a) Ensure Maniapoto retain priority, undisrupted traditional access to and

use of cultural and spiritual resources.

(c) Encourage and support protection of Maniapoto sites of significance, wāhi

tapu and customary resources.

127) The Waikato Regional Policy Statement – Operative 2016 (“RPS”) includes the

following:

Objective 3.18

Historic and cultural heritage Sites, structures, landscapes, areas or places of

historic and cultural heritage are protected, maintained or enhanced in order

to retain the identity and integrity of the Waikato region’s and New Zealand’s

history and culture.

128) It is clear that the relevant ODP and Maniapoto Environmental Management Plan

provisions have a focus on protecting sites of cultural significance, including wāhi

tapu, and avoiding, remedying and mitigating adverse effects on them.

129) The RPS goes further in my view than the provisions of the ODP and Maniapoto

Environment Management Plan. The RPS requires that cultural heritage sites,

areas or places of historic and cultural heritage are protected, maintained or

enhanced in order to retain the identity and integrity of the Waikato region’s and

New Zealand’s history and culture. Protecting, maintaining or enhancing are

strong directives and do not ‘easily’ encompass remedying or mitigating adverse

effects of proposals. The terminology infers the stronger ‘avoidance’ of adverse

effects.

130) While I accept that the actual archaeological (Pā site) would not be physically

altered by this development (ie, the development will not be over it), for the

reasons above Mana Whenua not only consider the Pā site (and Tihi) as sacred, but

the whole site as listed by Pouhere Taonga. Given the scale and intensity of the

proposal, and the values of this site as wāhi tapu, the site will not be protected and

the adverse effects will not be appropriately avoided, remedied or mitigated.

Part 2 of the RMA

131) As I set out earlier, in this case, having recourse to Part 2 of the RMA would add

significantly to the evaluative exercise required to be undertaken. This is

particularly the case here where there would be significant positive economic


benefits arising from this proposal (as have been set out above and contained in

the Applicant’s report from Martin Jenkins) and significant adverse cultural effects

on Mana Whenua given the absence of their support for the proposal.

132) Part 2 of the RMA consists of section 5 (the Purpose), section 6 (Matters of National

Importance), section 7 (Other matters including kaitiakitanga) and section 8

(Treaty of Waitangi). Sections, 6, 7 and 8 are strong directives in resource

management terms. I address Sections 6, 7 and 8 first and then return to section

5.

Section 6 – Matters of National Importance and Section 7 – Other Matters

133) The only matter of national importance relevant to this application is Section 6(e).

In terms of that section all decision makers must “recognise and provide for” “the

relationship of Maori [the Mana Whenua] and their culture and traditions with their

ancestral lands, water, sites, waahi tapu and other taonga”.

134) Section 6(e) is often paraphrased as the relationship of iwi or hapū with ancestral

lands, waters and taonga; but reference to “their culture and traditions” is equally

relevant. As noted by the Environment Court,22 it is the tikanga and belief systems

of the relevant iwi authority [Mana Whenua] that are to be provided for, whether

or not others agree with those belief systems:

[59]…What is to be recognised and provided for, as a matter of national

importance, is ... the relationship of Maori and their culture and traditions

with their ... waahi tapu and other taonga. What Maori regard as waahi tapu

and other taonga is for them. What the law requires is the recognition of, and

provision for, that relationship and neither this Court nor any other RMA

decision-maker can dismiss s 6 factors, simply because they may not share

the beliefs of Maori, and their traditions and lore…

135) In this case the Mana Whenua submitters have clearly articulated the values they

hold for this site, and how those values would be significantly adversely affected by

this proposal. Despite Mr Heskett’s offers, and the condition proffered by him, the

Mana Whenua submitters said their relationship with this ancestral whenua, as a

wāhi tapu and taonga, would not be recognised nor provided for. This was due to

the nature, scale and intensity of the proposed activities.

136) Mana Whenua also have an obligation to care for and protect their natural

environment as kaitiaki; a section 7 matter (the evidence of and discussion with

Dr Hikuroa at the hearing). Given the section 6(e) matters addressed above,

Mana Whenua would not be able to exercise kaitiakitanga over the site. While Mr

Heskett has offered to gift the Tihi site to the Mana Whenua, Mana Whenua’s

concern is that the Tihi does not exist in isolation, and they would not be able to

properly exercise their kaitiaki role.

137) Given the agreement of Te Kauae Marae leadership in accordance to the legacy of

22 Maungaharuru-Tangitu Trust v Hastings District Council [2018] NZEnvC 79.


the late Mr Bob Koroheke (and the letter from Chris Koroheke) was not reaffirmed

by Te Kauae Marae Submitters,23 it is my finding that the section 6 and 7 matters

addressed above cannot be satisfied by this application. This is a significant

matter which has been pivotal in my decision to refuse consent. A different

outcome may have resulted had the Te Kauae Marae and other submitters agreed

to the terms offered by, or to work with, Mr Heskett, but they have not.

Section 8 – Treaty of Waitangi

138) Section 8 provides a clear directive that the principles of the Treaty must be taken

into account in resource consent decision making. The principles most often cited

are: partnership, participation (engagement and consultation) and protection. Mr

Heskett, in my view, has clearly attempted to address those treaty principles;

seeking to engage and consult, partner and participate with the Mana Whenua,

and to protect the Tihi and Pā site.

Section 5

139) Section 5 sets out the purpose of the RMA:

(1) The purpose of this Act is to promote the sustainable management of

natural and physical resources.

(2) In this Act, sustainable management means managing the use,

development, and protection of natural and physical resources in a way, or

at a rate, which enables people and communities to provide for their

social, economic, and cultural well-being and for their health and safety

while—

(a) sustaining the potential of natural and physical resources (excluding

minerals) to meet the reasonably foreseeable needs of future

generations; and

(b) safeguarding the life-supporting capacity of air, water, soil, and

ecosystems; and

(c) avoiding, remedying, or mitigating any adverse effects of activities on

the environment.

(Underlining is my emphasis)

140) In terms of section 5(2), the provisions of particular relevance are:

(a) the enablement of “social, economic, and cultural well-being and for their

health and safety”;

(c) the avoidance and mitigation of adverse effects on the “environment” which

includes ‘cultural matters’;

141) There is no doubt that granting consent would have enabled the Applicant’s and

23 See paragraphs 85 and 86 above.


parts of the community’s social, economic, and cultural well-being. However, this

would have been at the expense of Mana Whenua’s cultural wellbeing.

142) However, given my findings in relation to sections 6 and 7 above, and the

significant adverse cultural effects that cannot be avoided or mitigated, in terms of

section 5, sustainable management on this site would be better promoted by

refusing consent.

Decision

143) In terms of section 104, I have had regard to the effects of the proposal and the

relevant objectives and policies of the statutory planning documents, the

Maniapoto Environmental Management Plan and Part 2 of the RMA. For the

reasons set out above, the actual and potential effects of this proposal for all

matters other than the cultural effects could be appropriately avoided, remedied or

mitigated and would be consistent with the relevant statutory planning provisions.

144) That is not the case in relation to cultural matters given the significance of the site

to Mana Whenua. There would be significant adverse effects. The proposal would

not protect the values of the site and would not satisfy sections 6(e) and 7(a) of

the RMA. Due to the nature, scale and intensity of the activity on this site, and the

importance of the site to Mana Whenua, the proposal would not meet the purpose

of the RMA without the support of Mana Whenua.

145) In exercising my delegation under section 34A of the RMA and having regard to the

matters set out above in this decision, including Part 2 of the RMA, I have

determined that resource consent application by Waitomo Sky Gardens Limited is

refused.

Greg Hill

Independent Hearing Commissioner

27 July 2020

Documents

Decision following the hearing of an application for ... · SA983/271 Panorama Motels Limited 95 Waitomo Caves Road, Hangatiki ... Lot 5 DP 471398 639534 Daniel Raymond Cullen