IN THE ENVIRONMENT COURT WELLINGTON REGISTRY

Under

In the matter

Duncan Cotterill

ENV-2016-WLG-000058

section 274 of the Resource Management Act 1991

of the Resource Management Act 1991 of Notice of Motion under section 87G requesting the granting of resource consents to WELLINGTON INTERNATIONAL AIRPORT LIMITED for the Wellington International Airport Extension of Runway: Construction, Operation and Maintenance

MEMORANDUM OF COUNSEL FOR GUARDIANS OF THE BAYS INCORPORATED

25 November 2016

Counsel instructed: Solicitors acting: Jonathan Scragg / Cameron Gubb PO Box 10376, Wellington 6143 JGH BARR,ISTER Phone +64 4 499 3280 Fax +64 4 499 3308 jonathan.scragg@duncancotterill,com cameron.gubb@duncancotterill .com

JDK Gardner-Hopkins Woodward Street Chambers PO Box 10-789 Wellington

May it please the Court:

Introduction

This memorandum is filed by counsel for Guardians of the Says Incorporated

(GOTB). On 18 November 2016, GOTS filed a notice pursuant to section

274 of the Resource Management Act 1991 (Act) wishing to be a party to th is

proceeding. The extended period for section 274 notices to be filed closes

today, 25 November 2016. There may be some late section 274 notices

filed, but it should soon be clear who the parties are to these direct referred

proceedings to the Environment Court.

2 GOTS has set out its background in its original submission and its section

274 notice. GOTS represents a broad range of interests and is liaising with

other key groups who have more particular interests, such as the Moa Point

Residents (Hua te Taka) and the Surfbreak Protection Society.

3 GOTS has received considerable support from the community, but has

limited resources available to it - as has the community generally. While it is

acknowledged the applicant's decision to direct refer the proceeding will

avoid two hearings (one at Council-level and one on appeal before the

Environment Court), a direct referral does represent a barrier to community

representation in the process.

4 GOTS wishes to ensure, as best as possible, that the proceeding is

conducted as efficiently and effectively as possible. GOTS members are

particularly concerned to understand the likely timeframes for the application.

To that end, GOTS respectfully requests the Court schedule a pre-hearing

judicial conference (PHC), before the end of 2016 so that the parties can

have some understanding of the likely timetable and commitments between

now and the hearing of the application . To allow sufficient time for

preparation and the filing of any proposed timetabling orders and other

interlocutory matters in advance of a PHC, GOTS proposes:

4.1

4.2

A PHC be held in the week of 12 December 2016; and

Any applications or memoranda for the PHC are to be filed and

served by 7 December 2016.

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5 The balance of this memorandum foreshadows some of GOTB's concerns

with the process to date, which may culminate in formal orders being sought

from the Court, such as in respect of the disclosure of certain information and

the production of further information or reports by the applicant and/or the

Wellington City Council (Council) .

Role of the Council

6 GOTB wishes to understand better the role of the Council, and its officers

who have produced reports and who, presumably, will provide evidence in

this process.

7 To date, the Council has had a function in aspects of the processing of the

consent application, for example in approving the applicant's request for

direct referral, as well as in producing its section 87F reports. The Council

itself, in fact, made a submission on the application. The submission is

expressed as being neutral but raises significant concerns about the

application on the Moa Point Wastewater Treatment Plant outfall pipeline

(outfall pipeline) and the sludge pipeline which carries sludge to the

Southern Landfill (sludge pipeline). In respect of the outfall pipeline the

submission records: "any damage to the outfall or restriction in being able to

maintain (including a future potential replacement) and operate the outfall has

the potential to cause significant cost to the community in both monetary and

environmental terms". In respect of the sludge pipeline, the submission

records: "in particular the sludge pipeline is a high pressure pipeline and any

damage or breach of it will result in significant adverse effects on the

environment" . It would be usual in light of such major issues for a submitter

to oppose the application unless its concerns could be avoided, remedied or

mitigated .

8 The Council in its submission records that its wishes to be heard in support of

the submission.

9 The Council also owns 33% of the Airport, and has contributed over $3m in

funding towards the consent process to date. It is unclear as to whether this

funding is as a shareholder, or as a territorial authority interested in ensuring

a comprehensive assessment of the issues of concern to their ratepayers.

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10 Whatever that past position, the position of the Council before the Court

needs to be clearly understood. It is unclear whether it is here in its capacity

as:

10.1 a submitter that recorded its wish to be heard; and/or

10.2 a regulator, bound to administer the conditions of consent if granted

by the Court, and to assist the Court in a robust evaluation of all the

effects of the proposal; and/or

10.3 whether it here as an advocate for the Airport, as a shareholder with

a bias towards the proposal, which some of its past actions may have

suggested.

11 In other proceedings, such as the Queenstown Lot 6 proceedings (also direct

referred, although via the Environmental Protection Authority), where the

Council had split roles, it was separately represented in each capacity (with

separate counsel). That way there is less potential for the Council in its

regulatory capacity to be perceived as advancing a commercial or political

position.

12 GOTB has experienced difficulties in its dealings with the Council to date,

such as in respect of information requests and the way the submission

process was run.

Information deficiencies

13 In its section 274 notice, GOTB indicated its concerns with a number of

deficiencies in the Greater Wellington Regional Council's and Wellington City

Council's (together, the Councils) section 87F report.

14 These and other deficiencies should be resolved urgently, before GOTB and

other submitters are put to the burden of responding to the section 87F

report. Such matters should not necessarily be left to the applicant to

address in its evidence. This could be too late in the process for GOTB and

other section 274 parties to properly respond to.

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Environmental Legal Assistance

15 GOTB intends to make an application for Environmental Legal Assistance

(ELA). It does not expect that application to be determined until sometime in

the New Year, possibly not until February 2017 or later.

16 Until it has a decision in respect of ELA funding, GOTB (and potentially other

applicants for ELA funding) cannot confirm the expert witnesses it will be able

to call. GOTB respectfully requests this be considered in the finalisation of

any timetabling.

Other timetabling I initial considerations

17 On the basis of the above matters, GOTB tentatively suggests the following

proposed sequence be considered:

17.1 Information deficiencies to be remedied by the applicant / the

Councils.

17.2 Parties to identify issues and likely witnesses to be called.

17.3 Applicant to exchange its evidence.

17.4 Council to exchange its evidence.

17.5 Mediation to consider whether any issues can be narrowed in light of

the evidence filed .

17.6 Section 274 parties to exchange their evidence.

17.7 Expert conferencing and joint witness statements to be produced.

17.8 Rebuttal evidence exchanged.

17.9 Hearing .

Counsel Assisting

18 Finally, GOTB raises for consideration whether Counsel Assisting should be

appointed to assist the Environment Court in its consideration of the issues.

This occurred in the Basin Bridge Board of Inquiry, but also, to a lesser extent

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in several other Boards of Inquiry processes. Occasionally, the Environment

Court will also appoint an "amicus" to assist in robust decision making.

Conclusion

19 GOTB has raised a number of issues in this memorandum. It intends to

engage with the Councils and applicant in advance of any PHC, and will file

an update memorandum in advance of any PHC, together with any

application for specific orders (if any are to be sought at that stage) .

Dated 25 November 2016

J D K Gardner-Hopkins I J K Scragg

Counsel for Guardians of the Bays Incorporated

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