28 February 2013 Committee Secretariat Local Government and Environment Parliament Buildings WELLINGTON

Dear Sir / Madam Please find attached Auckland Councils submission in response to the Resource Management Act Reform Bill. We would like to appear before the Committee and elaborate on our views during the hearing process. The views of Manurewa, Orakei and Waitakere Ranges Local Boards are appended to this submission. Please give independent consideration to each of them. If you require any clarification on the submission please contact Dr Roger Blakeley, Chief Planning Officer on 09 307 6063, or by email at roger.blakeley@aucklandcouncil.govt.nz

Yours sincerely

PENNY HULSE DEPUTY MAYOR AUCKLAND COUNCIL

Encl.

1 Greys Avenue | Private Bag 92300, Auckland 1142 | aucklandcouncil.govt.nz | Ph 09 301 0101

Submission to the

Local Government and Environment Committee

RESOURCE MANAGEMENT REFORM BILL

28 February 2013
2

Auckland Council submission on the Resource Management Reform Bill

1. 2. 3. 4. 5. This is Auckland Councils submission on the Resource Management Reform Bill (Bill). The address for service is Auckland Council, Private Bag 92300, Victoria Street West, Auckland 1142. Please direct any enquiries to Dr Roger Blakeley, Chief Planning Officer. Phone 09 307 6063 or email roger.blakeley@aucklandcouncil.govt.nz Auckland Council wishes to appear before the Local Government and Environment Committee to discuss this submission. This submission has been approved by the Auckland Plan Committee of Auckland Council. In addition three local boards have requested that their views on the Bill be included as appendices. In view of Part 2 of the Bill relating specifically to the process for delivering the combined regional policy statement, regional plan and district plan of Auckland Council (Auckland combined plan), the Council requests the opportunity to review Part 2 of the Bill before it is reported back from the committee. The submission is set out as follows: Introduction Executive summary Submissions on proposed amendments to the Local Government (Auckland Transitional Provisions) Act 2010 (LGATPA) Submissions on proposed amendments to the Resource Management Act 1991 (RMA) Schedule of proposed drafting amendments

6.

7.

Section 1: Section 2: Section 3: Section 4: Section 5:

Appendix 1: Local Board Submissions

SECTION 1:
8.

INTRODUCTION

Auckland Council was established with a mandate to promote integrated decision making in New Zealands biggest city to bring about a step change in Aucklands performance that will improve quality of life for all Aucklanders and, ultimately, all New Zealanders. Central to the fulfilment of this mandate is the ability to plan holistically for Aucklands future. This has been enabled through the development of two critical strategic documents. The first is the spatial plan (the Auckland Plan) which was adopted in March 2012 and the second is the combined regional policy statement, regional coastal plan, regional plan and district plan (the Unitary Plan). Effective delivery of these plans requires partnership with central government, the private sector, communities and other stakeholders. The Auckland Plan sets the Councils high-level strategic directions and the Unitary Plan is a key tool to implement those directions within the resource management arena. It will be the planning rule-book that will protect what is unique and special 3

9.

about Auckland while enabling housing choice, economic growth and the strengthening of communities. 10. Auckland Council has committed to developing the Unitary Plan in a different way from the past. Importantly, the focus has been on early engagement with key stakeholders to test ideas and draft rules. These stakeholders include community groups, central government agencies, NGOs, sector groups, developers, iwi, and elected representatives. The purpose of this extensive consultation is to develop the best Unitary Plan possible as well as to ensure that the key issues are identified and understood as early as possible in the process. As part of this new approach, the Council will release the Unitary Plan in draft form and offer Aucklanders the opportunity to give feedback on the plan prior to its formal notification. In time and cost terms, this enhanced process places greater emphasis on, and attention to, engagement and issue resolution during the pre-notification and notification phases. The Council considers that the focus at the pre-notification stage will deliver a better quality proposed Unitary Plan and should result in a significant narrowing of issues that require resolution at the hearings stage. Auckland Council notes that this Bill forms the first of two stages of Resource Management Act reforms. This Bill proposes a process for the delivery of the first Unitary Plan for Auckland. Auckland Council supports a process that will help to facilitate integrated planning for Auckland and provide certainty of outcomes for Aucklanders but has significant concerns with how the provisions in the Bill are currently drafted. The key concerns are outlined in the Executive Summary and detailed in full in the main body of the submission. In summary Auckland Council submits that: the Unitary Plan must take legal effect from notification in order for the benefits of Aucklands amalgamation to be fully realised greater legal weight must be given to the Unitary Plan relative to existing plans, many of which are now over 10 years old the Councils ability to jointly appoint members to the Hearings Panel is crucial and will help to ensure panel members have appropriate local knowledge and understanding of local issues rather than place a blanket moratorium on all variations to the Unitary Plan, there is recognition of special circumstances (such as defining the location of the rural urban boundary) that may make limited variations desirable timeframes must be workable, including that for the section 32 analysis that must be provided to the Ministry for the Environment before the Unitary Plan is notified; and the timeframe for the Council to consider the Hearings Panels report and make its decisions the scope of the Hearings Panels recommendations and the Councils decisions should be limited by the scope of the submissions in line with the usual principles of public participation.

11.

12.

13.

14.

15.

The Bill also proposes a number of substantive changes to the Resource Management Act. In relation to these proposed changes Auckland Council submits that: any changes to the existing section 32 requirements should not risk upsetting the balance contained in the definition of sustainable management in Section 5 of the RMA the proposed requirements under the new section 32AA would add to the compliance costs incurred by Council during the First Schedule process without any benefit to the public or stakeholders in that process there is no clear rationale for the changes which would only stop the processing clock from the third working day after a request for further information is made (with respect to any non-notified, limited notified or publicly notified resource consent applications). the changes to tree protection provisions (section 76 of the RMA), as currently drafted, are onerous and unworkable. Amendments are sought to enable identification on district plan maps and clarification of the definition of group of trees resource management decisions are best made by communities affected by those decisions. The approach to making direct referral mandatory for high value applications is unnecessary and represents an erosion of local decision-making powers.

16.

Please note that throughout this submission reference is made to the Unitary Plan rather than the Auckland combined plan as this is the name that has been used throughout the engagement process with the community and other stakeholders.

SECTION 2:

EXECUTIVE SUMMARY

Proposed amendments to the Local Government (Auckland Transitional Provisions) Act 2010 (LGATPA): process for streamlining delivery of the first Unitary Plan
17. While the Council supports the Bill providing a specific, tailored process for the delivery of the first Unitary Plan, it has significant concerns with how the provisions of the Bill are currently drafted. Changes, as set out in the text of this submission, are required in order to achieve the benefits associated with the Auckland reorganisation. The Councils main concerns with Part 2 of the Bill are set out below, generally in order of importance to the Council, although the Council considers all of these issues to be of critical importance.

18.

When rules in the Unitary Plan will have legal effect 19. In order that Auckland can start to realise the benefits of amalgamation, and to provide certainty to the public, business community and other stakeholders, it is crucial that the Unitary Plan takes legal effect from the date it is publicly notified. Much of the plan (including many regional rules) will already have immediate legal effect on notification under section 86B of the RMA, including rules with a focus on protecting natural resources but not rules that have a focus on the built environment (and have the 5

potential to encourage development). If the entire plan is not given legal effect from notification, positive outcomes enabled by the plan (including freeing up land for housing and commercial and industrial development) will take three years longer to be realised. Weight to be given to the Unitary Plan 20. Furthermore, the Bill must ensure that the Unitary Plan is given greater weight from notification than existing plans, many of which are over 10 years old. This would reflect the high level of public engagement in the development of the Auckland Plan, and the subsequent public engagement that will follow the public release of the draft Unitary Plan in March 2013 and that will be taken into account by the Council in the notified Unitary Plan that is released at the end of this year. Greater legal weight for the Unitary Plan will fast-track the positive outcomes it seeks to achieve as noted above. It will also avoid inconsistent judgments about the relative weight of different plans being made in resource consent decisions over the three years following notification of the Unitary Plan, and increase certainty for the public, business community and other stakeholders.

Ministerial appointment of the Hearings Panel 21. The Unitary Plan is a document that primarily affects Auckland and Aucklanders, while having wider benefits to the country as a whole, particularly economically. Given that, it is essential that the Council has a greater role in the appointment of members of the Hearings Panel. Currently, the Bill provides for Ministers to appoint the Hearings Panel in consultation with the Auckland Council and the Independent Mori Statutory Board. The Council believes that all appointments should be made by the Council in consultation with Ministers and the Independent Mori Statutory Board. However, as an alternative the Council suggests that a joint selection process is undertaken prior to Ministerial announcement of the Hearings Panel. There are precedents where Council and Government have made joint appointments such as to the board of the Tamaki Redevelopment Company Limited. This approach will better reflect the fact that the Auckland Council is bearing the majority of the cost associated with the process.

Weight Hearings Panel must give to Auckland's spatial plan (Auckland Plan) 22. The Auckland Plan should have greater statutory influence on the Unitary Plan process than currently provided for in the Bill. The Bill requires the Hearings Panel merely to have regard to" the Auckland Plan when making its decision. The Local Government (Auckland Council) Act 2009 (LGACA) required that the Auckland Plan be a comprehensive and effective long-term (20- to 30-year) strategy for Auckland's growth and development, and provide a basis for aligning the Council's implementation plans, regulatory plans, and funding programmes. The Council adopted the Auckland Plan in March 2012, following comprehensive engagement with community and stakeholders on the plan's content and direction. Given the high level of community input into the Auckland Plan, the Hearings Panel should be required to ensure that its recommendations be consistent with the Auckland Plan. Without greater legal weight in the panel's decision-making, the Auckland Plan will not achieve its purposes as set out in the LGACA, and positive outcomes from the Auckland Plan in relation to matters such as land supply and urban growth will not be achieved in a timely manner.

Moratorium on variations 23. While there are good reasons to limit variations to the Unitary Plan, particularly in order to ensure that the Council can make the Unitary Plan operative as soon as possible, 6

the current drafting of the Bill is too blunt an instrument. There may be special circumstances (such as defining the location of the rural urban boundary (RUB) around some rural towns or the implementation of the national policy statement on freshwater management) that require variations within three years of the plan being notified. It is essential that the Council is able to promulgate variations for these purposes to ensure it is able to achieve the objectives of the amalgamation and meet its other legislative requirements in a timely manner. The Bill should be amended to retain the ability to notify variations to address material changes in circumstances or significant information that has become available since notification of the plan. However, to ensure that any variation does not slow down the hearing of submissions on the Unitary Plan, and that in accordance with clause 16B of the First Schedule the variation can merge with the proposed Unitary Plan once it reaches the same procedural stage, the Council should only be able to notify variations until the closing date for further submissions on the Unitary Plan. An exception to that approach needs to enable site-specific additions to historic heritage schedules in the Unitary Plan which would not impact upon other substantive parts of the Unitary Plan, and therefore will not hold up the Unitary Plan hearings process but is necessary to ensure that buildings identified for scheduling can be protected as and when such identification is made or they may be at risk of demolition or destruction pending completion of the scheduling process. 24. The Hearings Panel should also have the power to direct the Council to prepare a variation to address matters raised in submissions or during the hearings process that are more appropriately addressed through a separate Schedule 1 process. Such matters might include a site specific comprehensive rezoning of a particular property or particular properties. It is not possible under the First Schedule to the RMA for private plan changes to be lodged on a proposed plan. However given the resource implications associated with the Unitary Plan, the Council further suggests that there should be a moratorium on private plan changes to any operative district or regional plans until such time as the Unitary Plan is operative. Those wishing to lodge a private change request would still have the six month period between the release of the draft Unitary Plan for consultation in March 2013 and when the Unitary Plan is ready for public notification in September 2013 in which to lodge a private plan change request.

25.

Timeframes 26. Subject to the above, the Bills provisions generally achieve a streamlining of the delivery of the first Unitary Plan. However two timeframes are unworkable and are therefore opposed. The first is the requirement that the Councils section 32 analysis report be provided to the Ministry for the Environment 60 working days before the Unitary Plan is notified. This requirement will make it almost impossible for the Council to notify the plan in this current electoral term, because analysis and decisions based on the feedback from public engagement in March to May 2013 will not be completed until the end of July 2013. The second unworkable timeframe is 20 working days for the Council to consider the Hearings Panel's report and make its decision whether to accept or reject its recommendations. This timeframe may be doubled by the Minister, at the Council's request. Given the volume of decision-making required due to the scope of the Unitary Plan, and to ensure it can give full consideration to the Hearings Panel's recommendations, the Council seeks 40 working days in which to make its decision on recommendations, and that the Minister be able to allow for an additional 20 working days where the Council so requests.

Hearings Panel recommendations not limited by submissions 27. The Council opposes the Bills proposal that the scope of the Hearings Panels recommendations, and the Councils decisions, are not limited by the scope of submissions and further submissions lodged in respect of the notified Unitary Plan. This proposal is inconsistent with the principle of public participation that underlies planning processes, and could enable significant changes which could affect private property and public interest without the requisite opportunity for public involvement. No reason has been given why the usual principles in relation to changes being within the scope of submissions should not apply. Accordingly, the Council submits that the Hearings Panel and Council should remain limited in the scope of its recommendations and decisions to the Unitary Plan as notified and any submissions and further submissions received in respect of that plan.

Proposed amendments to the RMA

28. Council also has concerns and seeks clarification in relation to a number of the proposed RMA amendments.

Changes to section 32 29. The Council seeks amendments to the proposed new section 32 to clarify that the requirement to quantify, if practicable, the benefits and costs of environmental, economic, social and cultural effects does not result in greater weight being given to those effects that are able to be quantified. Without such clarification, the proposed changes risk upsetting the balance contained in the definition of sustainable management in section 5 of the RMA. The Council strongly supports the section 32 evaluation containing a level of detail that corresponds with the level of anticipated environmental and other effects, but seeks further clarification that the evaluation is to be undertaken across the proposal (such as a proposed plan) as a whole. However, the Council opposes the requirement in the proposed new section 32AA that a further evaluation report must be prepared for changes to the proposal made since the original section 32 evaluation. Decision reports under clause 10 of the RMA's First Schedule can and do address the costs and benefits of any changes made to proposed plans and plan changes in response to submissions. There is no evidence that a separate further evaluation is required.

Timeframes where a further information request is made during the resource consent process 30. The Council opposes the Bill's proposal that the processing clock only stops from the third working day after a request for further information is made (with respect to any non-notified, limited notified or publicly notified resource consent application). There is no clear rationale for this change. If further information is required but is still outstanding, a council is unable to progress the application. It is unfair to keep the clock running for three days during which the information is still outstanding.

Tree protection rules in district plans 31. The changes to section 76 of the RMA as currently drafted are onerous and unworkable. The Council seeks amendments to the proposed new subsections in section 76 of the RMA, to allow for important groups of trees that traverse multiple sites such as significant areas of native vegetation on thousands of private properties in the Waitakere Ranges Heritage Area to be identified on district plan maps, without also having to specify street addresses or legal descriptions (which would be cumbersome 8

and clutter up district plan schedules). The Council also seeks clarifications to the definition of "groups of trees" to confirm that large tracts of native bush are groups of trees and to confirm that significant vegetation such as coastal pohutukawa, tracts of mature trees around the base of the citys volcanic cones, and urban stream/coastal riparian edges that may not always be physically contiguous is a group of trees. The amendments sought would provide certainty to landowners as to what trees are and are not protected, while enabling the Council to continue to meet its statutory obligations to manage and protect biodiversity, ecosystem services and amenity effects on behalf of all Aucklanders. Mandatory direct referral 32. The Council opposes provisions in the Bill that would require direct referral of resource consent applications and notices of requirement to the Environment Court, where the value of the investment exceeds the threshold set out in regulations, unless there are exceptional circumstances. The RMA is based on the principle that most resource management decisions are best made by communities affected by those decisions. There is no evidence of a problem in relation to the consenting of high value proposals by local authorities. Nor is the value of a proposal a proxy for the importance or complexity of a resource consent decision: "low value" proposals affecting natural resources may be highly significant, while "high value" proposals in general conformity with plan provisions may be straightforward and uncontroversial. Mandatory direct referral based on the value of the investment is also unnecessary given the applicant's ability to seek direct referral, and ministerial call-in powers, under existing RMA provisions.

SECTION 3:

PROPOSED AMENDMENTS TO THE LOCAL GOVERNMENT (AUCKLAND TRANSITIONAL PROVISIONS) ACT 2010

33.

The Council considers that a new plan process is necessary to deliver the Unitary Plan without undue delay, and achieve one of the main benefits of Auckland's local government reorganisation. As noted in the regulatory impact statement for the Bill, the Unitary Plan is "critical to achieving Auckland's proposed growth targets, as well as planning land-use, critical infrastructure and housing supply". The Council has concerns with, and wishes to comment on, several aspects of the proposed procedure, as set out below. The Council may be taken to support any provision in Part 2 on which it has not specifically commented below. The key concerns for the Council in Part 2 are: The moratorium on variations under proposed section 121 of the LGATPA (the following references to sections are to proposed sections of the LGATPA); The Hearings Panel not being limited to making recommendations within the scope of submissions under proposed section 139; The weight the Hearings Panel must give to the Auckland Plan when making recommendations under proposed section 140;

34.

35.

The 20 working day timeframe for the Council to consider the Hearings Panel's recommendations under proposed section 143; What rules in the Unitary Plan will have immediate legal effect under proposed section 147, and the related question of what weight the plan is to have on and from notification; and The appointment of members of the Hearings Panel under proposed section 155.

36.

However, the Council addresses below all significant matters in Part 2 (whether supported or opposed), in the order in which they appear in the Bill.

Clause 124 Transitional regulations

37. The Council supports this clause.

Discussion 38. The flexibility to make transitional regulations in addition to or in place of the new provisions in Part 4 of the LGATPA to be inserted, or to deal with matters not sufficiently provided for in Part 4, is important. The existing power to make transitional regulations in section 5 of the LGATPA has proved to be useful in addressing anomalous situations that were not foreseen at the time the LGATPA was enacted.

Recommendation 39. The Council seeks that Clause 124 is enacted in its current form.

Section 119 Auckland combined plan to combine regional and district documents
40. The council supports this section, subject to the comments and recommendation below.

Discussion 41. Section 119(1)(c) refers to the Unitary Plan containing "a district plan for Auckland". The Council does not, however, intend to include within the Unitary Plan the district plan for the Hauraki Gulf Islands, a second generation RMA plan most of which is now operative having been through submissions and appeals over the past few years.

Recommendation 42. Rather than reopen the district plan for the Hauraki Gulf Islands to a further public process by including it within the Unitary Plan, the Council recommends that section 119(1)(c) be amended as follows: (c) a district plan for Auckland, excluding the area covered by the Hauraki Gulf Islands district plan until such time as a variation or plan change is introduced to incorporate the Hauraki Gulf Islands into the Auckland combined plan.

10

Section 120 Initial preparation of Auckland combined plan

43. The Council supports this section.

Discussion 44. In particular the Council supports the modifications to the otherwise applicable timeframes under the RMA's First Schedule, and the removal of the Council's power to extend timeframes or waive non-compliance with timeframes. The removal of this power is justifiable in light of the already expanded timeframes for submissions on the Unitary Plan, and the three year deadline (from notification) for the Hearings Panel to make recommendations to the Council under proposed section 141. In any event the chairperson of the Hearings Panel has the power to accept a late submission under the proposed section 131.

Recommendation 45. The Council seeks that clause 120 is enacted it its current form.

Section 121 Restriction on amendments or variations to Auckland combined plan

46. The Council opposes this section as currently drafted, and recommends amendments as discussed below.

Discussion 47. This section provides that the following RMA provisions do not apply to the Unitary Plan before it is operative: (a) section 55 (requirement to amend the plan to recognise national policy statements); (b) clauses 16 to 16B of the First Schedule (which include the power to correct minor errors and to make variations to a proposed plan); and (c) other provisions that allow an amendment or variation to be made. 48. The Council understands the moratorium on variations to be aimed at making as much of the Unitary Plan as possible operative within three years of notification. It supports that goal, but notes that special circumstances (such as defining the location of the rural urban boundary (RUB) or the implementation of the national policy statement on freshwater management) will likely require variations to be promulgated within three years of the plan being notified. These variations will allow the Council to achieve some of the key outcomes of amalgamation and to meet related statutory obligations. The Council recommends that it retain the ability to notify variations to address material changes in circumstances, or significant information that has become available since notification of the plan. However, to ensure that any variation does not slow down the hearing of submissions on the Unitary Plan, and that in accordance with clause 16B of the First Schedule the variation can merge with the proposed Unitary Plan once it reaches the same procedural stage, the Council should only be able to notify variations until the closing date for further submissions on the Unitary Plan. The exception would be for site-specific additions to historic heritage schedules in the Unitary Plan, 11

49.

which would not impact upon other substantive parts of the Unitary Plan and therefore would not hold up the Unitary Plan hearings process but is necessary to ensure that buildings identified for scheduling can be protected as and when identification is made pending completion of the scheduling process. Without this exception, the protection of significant heritage buildings warranting scheduling could be frustrated, as an owner could lawfully demolish the building (assuming there were no controls in the relevant operative plan) before the Council was able to notify a variation on the expiry of the moratorium. 50. It also recommends that the Hearings Panel should also have the power to direct the Council to prepare a variation, to address matters for which it considers insufficient provision is made in the Unitary Plan, which are raised in submissions, but which are more appropriately dealt with through a separate First Schedule process. Examples might include submissions seeking comprehensive site specific rezoning of land. This would supplement its power to make recommendations under proposed section 139, but significantly, could be exercised earlier in the Hearings Panel's decision-making process. The Council would expect this power to direct variations to be used only in exceptional circumstances, as it is important that variations do not compromise the Hearings Panel making its recommendations 50 working days before the 3 years anniversary of the plan being notified (as required by section 141). In addition, given the resource implications for the Council associated with the Unitary Plan, it suggests that there should be a moratorium on private plan changes to any operative district or regional plans until such time as the Unitary Plan is operative. Those wishing to lodge a private change request would still have the six month period between the release of the draft Unitary Plan for consultation in March 2013 and its public notification in September 2013 in which to lodge a private plan change request. It is also unclear why the power to correct minor errors under clause 16(2) of the First Schedule is removed until the Unitary Plan becomes operative. Case law and practice in relation to clause 16(2) is clear that the power to correct minor errors under clause 16(2) should not affect substantive rights, and there is no evidence of this power being abused. Retaining this power allows the Council to address errors quickly and efficiently, and thereby reduce uncertainty and confusion (both for those applying the Unitary Plan during the resource consent process, and those making submissions on the plan). The Council therefore recommends that this power be retained.

51.

52.

Recommendation 53. The Council recommends that proposed sections 121(1) and (2) be amended as follows: Restriction on variations to Auckland combined plan (1) The following provisions of the RMA do not apply to the Auckland combined plan before it is operative: (a) section 55: (b) clauses 16 to 16B 16A of Schedule 1: (c) any other provision. . . (1) Auckland Council may notify a variation to the Auckland combined plan under clause 16A of Schedule 1 only if one or more of the circumstances in subsection (2) applies.

12

(2) However, despite subsection (1) an amendment may be made A variation may only be notified(a) before the closing date for further submissions referred to in section 120(7) of this Act, unless paragraph (b) or paragraph (c) applies; or (b) if the variation concerns a site-specific addition to a historic heritage schedule to the Auckland combined plan; under clause 4(10) of Schedule 1 of the RMA; or (c) at the direction of the Hearings Panel, or as a result of the Auckland Council's decisions on the recommendations of the Hearings Panel. 54. The Council also recommends that a new section 121A be inserted as follows: 121A Restriction on requests for changes to policy statements or plans Notwithstanding anything in Part 2 of Schedule 1 of the RMA, no person may request a change to a policy statement, regional plan or district plan that applies in Auckland in the period commencing on the date the Auckland combined plan is publicly notified and ending on the date the Auckland combined plan is made operative.

Section 122 Audit of evaluation report on proposed Auckland combined plan

55. The Council supports this section, subject to the comments and recommendation below.

Discussion 56. This section provides that the Council must provide the evaluation report prepared under section 32 to the Ministry for the Environment for auditing no later than 60 working days before the proposed plan is to be notified. The Council accepts the rationale for the Ministry to audit the Council's section 32 report, and notes that this is likely to further enhance public and wider stakeholder confidence in the robustness of the Council's analysis underlying the Unitary Plan. However, this requirement for the report to be provided 60 working days before the proposed plan is to be notified will make it almost impossible for the Council to notify the plan in this current electoral term. This is because analysis and decisions based on the feedback from public engagement in March to May 2013 will not be completed until the end of July. In addition, the Council recognises that the section 32 report will be an important document that will require adequate preparation time to complete. The Council therefore supports reducing that requirement to 20 working days before the proposed plan is notified. The Council notes that this reduction need not affect the Council's obligation to make the Ministry's audit report publicly available, as under the proposed section 130(7) that report is to be made publicly available "at the same time as, or as soon as practicable after, the proposed plan is publicly notified".

57.

Recommendation 58. The Council therefore recommends that section 122(3) be amended as follows: (3) The Auckland Council must provide the reports to the Ministry as soon as practicable after they are prepared, but no later than 60 20 working days before the day on which the proposed plan is to be publicly notified.

13

Section 129(6) Conference of experts

59. The Council supports this section, subject to the comments and recommendation below.

Discussion 60. This subsection provides that the Council may attend a conference of experts under this section only if authorised to do so by the Hearings Panel. There does not appear to be any rationale for excluding the Council from a conference of experts. The danger is that excluding the Council or a representative of the Council from a conference of experts could result in the rationale for the Council's position as set out in the proposed plan being overlooked, or the impact of possible changes to the proposed plan not being fully understood. Accordingly, the Council suggests redrafting subsection (6) to create a presumption of Council attendance at a conference of experts.

Recommendation 61. The Council recommends subsection 129(6) be amended as follows: (6)To avoid doubt, t The Council or an expert engaged by the Council may attend a conference under this section only if authorised to do so by unless the Hearings Panel specifically directs otherwise.

Section 130 Alternative dispute resolution

62. The Council supports this section, subject to the comments and recommendation below.

Discussion 63. The Council supports the overall intent of this section, but considers that similar wording to that used in proposed section 129(5) should be added as mediations or other processes are undertaken on a without prejudice basis.

Recommendation 64. The Council recommends that subsection (4) be amended as follows: (4) The person who conducts the mediation or other process must report the outcome to the Hearings Panel, but must not advise the Hearings Panel of any material communicated or made available at the mediation or other process on a without prejudice basis.

Section 132(3)(b) Hearing Procedure cross examination

65. The Council supports this subsection subject to the comments and recommendation below.

Discussion 66. This subsection provides for the Hearings Panel to permit cross examination. Given the nature of the hearings process this is appropriate and supported.

14

67.

However, Council considers that cross examination should be limited to experts only and not include lay persons. Cross examination will be most valuable for the Hearings Panel when it is between experts. It is important that lay persons feel confident to participate in the hearing process and are not subjected to unnecessary formality or legal process. The hearings panel will still be able to test the evidence of lay witnesses through its own questions.

Recommendation 68. The Council recommends that subsection (3) be amended as follows: (a) subject to paragraph (b), may permit a party to question any other party or witness; and (b) may permit cross-examination of experts, but not of lay witnesses; and

Section 139(2) Hearings Panel recommendations not limited by scope of submissions

69. The Council opposes this subsection.

Discussion 70. This subsection states that the Hearings Panel is not limited to making recommendations within the scope of submissions, and may make recommendations on any other matters relating to the proposed plan identified by the panel or any other person during the hearing. This subsection is a substantial departure from the existing law. Under the RMA, a consent authority is limited by clause 10(1) of the First Schedule to giving a decision on the provisions and matters raised in submissions. The established case law requires that any amendment to a proposed plan must be "fairly and reasonably raised" within the submissions filed. Auckland Council is unsure as to the rationale for this provision. In particular, it is unclear why the normal power to make recommendations on matters fairly and reasonably raised in submissions is seen as unreasonably constraining the Hearings Panel. Indeed, given the interest in the Unitary Plan and the range of views likely to be expressed in submissions, the Hearings Panel could be expected to have ample scope to make recommendations. Section 139(2), on its face, gives the Hearings Panel an unfettered discretion to make any recommendation on any matter relating to the proposed plan. This raises two key concerns: (a) First, submitters and the general public will have no opportunity to consider and address a Hearings Panel recommendation on a matter that is outside the scope of existing submissions. A recommendation beyond the scope of submissions could have a significant impact on property rights and other interests, yet the affected parties would have no opportunity to respond to it: they could only hope that the Council refused to accept the Hearings Panel's recommendation. The "right to be heard", which the subsection (2) offends, is one of the core principles of natural justice.

71.

72.

73.

15

(b) Second, the power to make recommendations beyond the scope of submissions blurs the boundary between adjudication (which is the proper role of the Hearings Panel) and plan making (which is the proper role of Auckland Council as a democratically elected local authority). To that extent, the power is contrary to the principle of separation of powers under which legislative (in the case of plan making) and judicial functions are kept separate. 74. Further, there would be no right of appeal in relation to any recommended changes to the proposed plan that go beyond submissions, as all appeal rights are limited to matters "that the person addressed in the submission" (see sections 150(1)(a) and 152(1)(a)). The Council proposes that this subsection be amended to ensure that any changes recommended to the proposed plan by the Hearings Panel are within the scope of submissions, unless they relate to the Hearings Panel directing the Council to initiate a variation to the proposed plan, or they relate to alterations of minor effect or corrections of any minor errors.

75.

Recommendation 76. The Council recommends that section 139(2) be deleted.

Section 140(3) Status of the spatial plan (Auckland Plan)

77. The Council supports the intent of this section, subject to the comments and recommendation below.

Discussion 78. This subsection requires the Hearings Panel to ensure that regard has been had to the Auckland Plan when complying with subsection 1(f) in respect of section 66 of the RMA (which relates to the preparation and changing of any regional plan). This is the only requirement for the Hearings Panel to consider the Auckland Plan. The Local Government (Auckland Council) Act 2009 (LGACA) required that the Auckland Plan be a comprehensive and effective long-term (20- to 30-year) strategy for Auckland's growth and development, and provide a basis for aligning the Council's implementation plans, regulatory plans, and funding programmes. Anticipating its links to RMA plans and strategies, the LGACA specifically required the Auckland Plan to explicitly identify the existing and future location and mix of (a) residential, business, rural production, and industrial activities within specific geographic areas within Auckland; and (b) critical infrastructure, services, and investment within Auckland (including, for example, services relating to cultural and social infrastructure, transport, open space, water supply, wastewater, and stormwater, and services managed by network utility operators). 80. 81. The primary means by which the Council, as a regulatory authority, can enable these outcomes is through the Unitary Plan. The Auckland Plan was adopted in March 2012, following comprehensive engagement with community and stakeholders on the plan's content and direction. In accordance with the LGACA's direction, central government, infrastructure providers (including 16

79.

network utility operators), the communities of Auckland, the private sector, the rural sector, and other parties were involved throughout the plan's preparation and development. 82. The Council seeks that the Hearings Panel be required to ensure that the Unitary Plan be consistent with the Auckland Plan given the high level of community buy-in to the Auckland Plan. Without greater legal weight in the panel's decision-making, the Auckland Plan will not achieve its purposes as set out in the LGACA, and positive outcomes from the Auckland Plan in relation to matters such as land supply and urban growth cannot be achieved in a timely manner.

Recommendation 83. The Council recommends that section 140(3) be amended as follows: (3) To avoid doubt, when When complying with subsection 1(f) in respect of section 66 of the RMA, the Hearings Panel must ensure that regard has been had to the its recommendations are consistent with the spatial plan for Auckland prepared and adopted under section 79 of the Local Government (Auckland Council) Act 2009.

Section 143(3) Auckland Council may accept recommendations beyond the scope of submissions
84. The Council opposes this subsection.

Discussion 85. For the reasons outlined above in relation to section 139(2), the Council opposes the Hearings Panel having the power to make recommendations beyond the scope of submissions. For the same reasons the Council should not have to power to accept recommendations beyond the scope of submissions.

Recommendation 86. The Council recommends that this subsection be deleted.

Section 143(4) Auckland Council to notify decisions within 20 working days

87. The Council supports this section, subject to the comments and recommendation below.

Discussion 88. This subsection requires the Council, no later than 20 working days after it is provided with the Hearings Panel's report under section 141, to publicly notify its decisions. It must state, in respect of each recommendation of the Hearings Panel, whether it accepts or rejects the recommendation, and if it rejects the recommendation, the reasons for doing so and its alternative solution. The Council considers that 20 working days is insufficient for the Council to consider the report of recommendations of the Hearings Panel. The Unitary Plan is a very broad ranging document, combining the regional policy statement, regional coastal plan, regional plan and district plan for Auckland. The recommendations of the Hearings Panel will inevitably be extensive. A 20 working day time period, in reality, 17

89.

gives the Council little choice other than to accept the Hearings Panel's recommendation or reject it and stick with the proposed plan as notified. This is despite section 139 specifically requiring the Council to give reasons for rejecting the Hearings Panel recommendations, and to state an alternative solution (which may or may not include elements of the proposed plan and Hearings Panel recommendations). Put simply, 20 working days provides insufficient time to give due consideration to the Hearings Panel's recommendations. 90. The Council therefore seeks 40 working days in which to make its decision on recommendations, and that the Minister be able to extend that decision-making period where the Council so requests by an additional 20 days.

Recommendation 91. Accordingly, the Council proposes that subsection (4) be amended as follows: (4) The Council must, no later than 20 40 working days after it is provided with the report under section 141 . . .

Section 147 RMA provisions relating to legal effect apply

92. The Council opposes this section as currently worded and seeks that it be amended.

Discussion 93. 94. This subsection states that sections 86A to 86G of the RMA apply, with all necessary modifications, to a rule contained in the proposed plan. Section 86B(3) of the RMA provides that a rule in a proposed plan will have immediate legal effect if the rule (a) protects or relates to water, air, or soil (for soil conservation); or (b) protects areas of significant indigenous vegetation; or (c) protects areas of significant habitats of indigenous fauna; or (d) protects historic heritage; or (e) provides for or relates to aquaculture activities. 95. Under section 86B, therefore, many rules in the Unitary Plan will have immediate legal effect: that is effect from the date the plan is publicly notified. By contrast, other important rules in the proposed plan will only have legal effect after the Hearings Panel has made its recommendations, and the Council made a decision on those recommendations. This period is likely to be in the order of three years. This has the potential to significantly delay opportunities to take advantage of positive outcomes the Unitary Plan will enable on matters such as affordable housing, extensions of the Rural Urban Boundary, and the availability of land for commercial and industrial development. It is noted that while, under section 86B, rules with a focus on protecting natural resources (and that have the potential to constrain development) will have immediate legal effects, rules that have a focus on the built environment (and have the potential to encourage housing development) will not have immediate legal effect. Accordingly, there is an imbalance in what rules have legal effect, until such time as the Council notifies its decisions following the Hearings Panel recommendations.

96.

18

97.

The Council considers that section 147(1), as currently worded, is potentially inconsistent with the Governments intention of simplifying planning processes, because the applicant will need to determine which rules in the combined Auckland plan do and do not have immediate legal effect. While that is the case with any district or regional plan that is notified, the problem is exacerbated due to the Unitary Plan containing both regional rules (many of which will have immediate effect under section 86B but some of which will not) and district rules (most of which will not have immediate legal effect under section 86B, but some of which will). A particular reason for the first Unitary Plan to have immediate legal effect is that there are currently 10 district plans, 4 regional plans and a regional policy statement in force in Auckland. Apart from the Rodney District Plan and Proposed Hauraki Gulf Islands plan, each of the district and regional plans was made operative between 1999 and 2005, meaning they no longer reflect the present needs and aspirations of Auckland's communities. Statutory direction that the Unitary Plan has greater weight than these documents would provide greater simplicity and certainty for the public and other stakeholders. In addition, apart from the rules all of the Unitary Plan (including objectives, policies and methods) will have immediate legal effect from notification, and therefore will need to be considered by consent authorities alongside relevant provisions in the existing, operative plans and regional policy statement. This raises the question of what weight consent authorities give to objectives, policies and relevant other provisions in the Unitary Plan, relative objectives, policies and other relevant provisions in the existing operative plans. These judgements will need to be made by commissioners hearing resource consent applications on a case by case basis, giving little certainty to applicants and other stakeholders in the resource consent process.

98.

99.

100. Giving the entire plan immediate legal effect will provide greater certainty to the public, business community and other stakeholders and will greatly simplify the current complex range of plans in operation in Auckland and avoid confusion. Further, an amendment to the Bill stating that, from notification, greater weight is to be given to relevant provisions in the Unitary Plan than to relevant provisions in the operative regional policy statement and operative plans, will provide clarity to consent authorities and greater certainty to applicants and other stakeholders in the resource consent process. It will also fast-track the positive outcomes under the Unitary Plan noted earlier. 101. Auckland Council has considered the different ways in which rules in the Unitary Plan could be made to have some legal effect from notification. The first, "status quo", option is that only those rules which fall within the scope of section 86B(3) of the RMA would have immediate legal effect. As noted above, this is both confusing for the public and applicants, and undesirable in policy terms because it postpones the development outcomes the Unitary Plan will facilitate. 102. The second option is for Auckland Council to apply to the Environment Court for orders under section 86D of the RMA that particular rules in the Unitary Plan (other than those already having immediate legal effect under section 86B(3)) have immediate legal effect. Apart from the inherent uncertainty as to whether such applications would be granted, this option is impracticable because the case would need to be made for each rule to have immediate legal effect. This would impose a huge evidential burden on the Council and an enormous task on the Environment Court as the body determining the application. 19

103. A third option is that the Unitary Plan has the same immediate legal effect as all new plans notified before the 2009 RMA amendments which inserted sections 86A to 86G of that Act. In other words, the plan including all rules would have immediate legal effect, but very little weight compared to the operative regional policy statement and operative regional and district plans, because it was only at the start of the First Schedule process and hence had not been tested through submissions and appeals. Again, this option can be discounted for the reasons discussed above relating to uncertainty and postponement of development outcomes facilitated by the Unitary Plan. 104. Accordingly, the Unitary Plan having immediate legal effect plus greater weight than the operative regional policy statement and operative regional and district plans is considered to be the most suitable option. Recommendation 105. The Council recommends that proposed section 147 be amended as follows: 147 RMA provisions relating to legal effect of rules do not apply (1) Sections 86A to 86G of the RMA do not apply, with all necessary modifications, to a rules contained in the proposed plan, all of which are to have immediate legal effect on and from notification of the proposed plan. (2) Without limiting subsection (1), every reference to clause 10(4) of Schedule 1 must be read as a reference to section 143(4)(a). 106. It further recommends that a new section 147A be inserted as follows: 147A Weight to be given to proposed plan When considering an application for resource consent under section 104 of the RMA, or a requirement under section 171 or section 191 of the RMA, a consent authority or a territorial authority (as the case may be) must give greater weight to relevant provisions in the proposed plan than to relevant provisions in a regional policy statement or plan.

Section 149 Appeal rights

107. The Council supports this section. Discussion 108 This section provides that the only appeal rights available in respect of the Unitary Plan are the right of appeal to the Environment Court under section 150 and the right of appeal to the High Court under section 152. The Council considers it appropriate for appeal rights to be limited as provided for in sections 150 and 152, given the significantly enhanced consultation process followed for the Unitary Plan, and the enhanced hearing procedure before the Hearings Panel which the Bill provides. The enhanced procedure, similar to a board of inquiry process from which only limited rights of appeal are available under the RMA, will ensure robust decision-making at first instance, obviating the need for merits appeals to the Environment Court except where the Council rejects a Hearings Panel recommendation.

20

Recommendation 109. Section 149 is enacted in its current form.

Section 150 Right of appeal to Environment Court

110. The Council supports the intent of this section, but recommends that it be reworded for greater clarity. Discussion 111. Under this section a submitter can appeal to the Environment Court in respect of a provision or matter relating to the proposed plan, that the submitter addressed in their submission and in relation to which the Council rejected a recommendation of the Hearings Panel which resulted in a provision being included in the proposed plan or a matter being excluded from the proposed plan. 112. The Council considers that the proposed hearings process will ensure all issues are robustly considered. In situations where the Auckland Council makes an alternative decision (having rejected the recommendation of the Hearings Panel) without the benefit of hearing all the evidence, then the Council considers that the matter should be able to be appealed to the Environment Court. 113. While the Council supports this policy position, section 150 as presently worded does not make it clear that there is a right of appeal to the Environment Court where the Council amends a provision recommended by the hearings panel (as opposed to simply including a provision or excluding a matter). At present this is only implicit, as amending a provision will involve including a "provision" in the proposed plan (i.e. the amended provision), excluding a "matter" from the plan (i.e. elements of the panel's recommended wording), or possibly both. 114. The scope of any statutory right of appeal should be clear and unambiguous. Accordingly, the Council recommends that section 150 be reworded to make it clear that a submitter can appeal a Council decision to reject a Hearings Panel recommendation by including a provision in the proposed plan, excluding a matter from the proposed plan or amending a provision recommended by the Hearings Panel. Recommendation 115. Section 150 is amended as follows: 150 (1) Right of appeal to Environment Court A person who made a submission on the proposed plan may appeal to the Environment Court in respect of a provision or matter relating to the proposed plan(a) that the person addressed in the submission; and (b) in relation to which the Council rejected a recommendation of the Hearings Panel, which resulted in by(i) (ii) including a provision being included in the proposed plan; or excluding a matter being excluded from the proposed plan; or 21

(iii)

amending a provision recommended by the Hearings Panel.

Section 152 Right of appeal to High Court on question of law

116. The Council supports the intent of this section, but recommends that it be reworded for greater clarity and consistency with proposed section 150. Discussion 117. This section limits an appeal to the High Court to situations where a submitter addressed a provision or matter in their submission, and the Council accepted a recommendation of the Hearings Panel which resulted in a provision being included in the proposed plan or a matter being excluded from the proposed plan. Retaining a right of appeal on points of law is an important safeguard in the event of there being an error of law. 118. Equally, limiting the right of appeal points of law (except where the Council rejects a Hearings Panel recommendation) is consistent with existing appeal rights under the RMA from boards of inquiry, which the process proposed for the Unitary Plan closely resembles. Limiting rights of appeal to points of law will prevent the merits of the Hearings Panel recommendations and Council's decisions accepting those recommendations being re-litigated, and the Unitary Plan is made operative more quickly than would otherwise be the case. 119. The Council recommends, however, minor changes to the wording of section 152 to simplify it and to make it consistent with the wording of section 150 as amended above. Recommendation 120. Section 152 is amended as follows: 152 (1) Right of appeal to High Court on question of law A person who made a submission on the proposed plan may appeal to the High Court in respect of a provision or matter relating to the proposed plan(a) that the person addressed in the submission; and (b) in relation to which the Council accepted a recommendation of the Hearings Panel, which resulted in by(i) including a provision being included in the proposed plan; or

(ii) excluding a matter being excluded from the proposed plan. (iii) amending a provision recommended by the Hearings Panel.

Section 155 Minister for Environment and Minister of Conservation to establish Hearings Panel
121. The Council opposes this section as currently drafted and recommends amendments as discussed below. 22

Discussion 122. This section provides for the chairperson and other members of the Hearings Panel to be appointed jointly by the Ministers, following consultation with the Auckland Council and the Independent Mori Statutory Board. 123. The Unitary Plan is a document that primarily affects Auckland and Aucklanders. The fact that it deals with inherently local issues which require local knowledge is recognised to some extent in proposed section 155(4), which requires that panel members appointed collectively have knowledge of and expertise in relation to (amongst other matters) tikanga Mori as it applies in Tmaki Makaurau, and the manawhenua, and the other people of Tmaki Makaurau. The text suggests that Auckland Council should partner with central government in appointing the Hearings Panel, because it is best placed to identify who the potential members possessing the necessary local knowledge are. The Council considers that it should have decisionmaking powers, rather than merely being consulted with, in the appointment of the Hearings Panel. The Unitary Plan will ultimately be Auckland Councils plan, and decisions whether or not to accept the panel's recommendations will be made by the elected representatives of Auckland Council. Again, this suggests that the Council should be involved in the decision-making around the membership of the Hearings Panel. 124. While the Council believes that all appointments should be made by the Council in consultation with Ministers and the Independent Mori Statutory Board, Council suggests that guidance can be drawn from the process for appointing directors to the Tamaki Redevelopment Company Limited. Of its five to seven directors, one is appointed by the Crown, one by the Council, the balance appointed by ordinary resolution of the shareholders (the Crown and Council), and the chairperson agreed by the Crown and the Council. A joint selection process prior to Ministerial announcement will also better reflect the fact that Auckland Council is bearing the majority of the cost associated with the process. Given that the Independent Mori Statutory Board was established by legislation to assist the Auckland Council make decisions, perform functions and exercise powers by promoting issues of significance to Mori and to recognise the close working relationship of the Board and Council it is recommended that Auckland Council takes the primary role in consulting with the Board over the appointment of the Hearings Panel members. Recommendation 125. The Council considers that section 155 should be amended as follows: Section 155 Ministers and Auckland Council for Environment and Minister of Conservation to establish Hearings Panel (3) The Hearings Panel must be appointed as follows: (a) (b) (c) The Ministers have the right to appoint one member; Auckland Council has the right to appoint one member; The chairperson and other members must be appointed jointly by the Ministers after consulting with and the Auckland Council after Auckland Council has consulted with the Independent Mori Statutory Board.

126. Consequential amendments should also be made to subsections (4), (7) and (8) by inserting the words "and the Council" after the word "Ministers".

23

Section 157 When member ceases to hold office

127. The Council supports this section, subject to the comments and recommendation below. Discussion 128. This section provides a process for the Minister for the Environment and Minister of Conservation to remove a member of the Hearings Panel at any time for just cause. Given that Auckland Council believes that all appointments to the Hearings Panel should be made jointly by the Crown and Auckland Council, Councils position is that Hearings Panel members can only be removed in a manner consistent with the suggested amendments to Section 155. Recommendation 129. The Council considers that section 157 should be amended as follows: Section 157 When member ceases to hold office (2) The Minister for the Environment and, the Minister of Conservation and the Auckland Council may jointly, at any time for just cause, remove a member by written notice to the member (with a copy to the Hearings Panel).

Section 162 Funding of Hearings Panel and related activities

130. The Council supports this section, subject to the comments and recommendation below. Discussion 131. This section provides for the Council to be responsible for all costs incurred by the Hearings Panel and for the activities related to the performance or exercise of the Panel's functions and powers under this Part. The cost implications of the Council being responsible for all costs incurred by the Hearings Panel are significant (likely to be several million dollars). 132. While the Council would normally be responsible for the costs incurred by Council hearings panels, in the case of the Unitary Plan, the hearing process will be significantly longer and more comprehensive. As noted above, the Hearings Panel's procedure will be more akin to a Board of Inquiry process. 133. The Council understands that generally the Governments approach is that responsibility for funding should follow responsibility for decision-making. The requirement that the Council be responsible for all costs incurred by the Hearings Panel runs counter to the government holding the final power of appointment of the Chairperson and members on the Hearings Panel. 134. Furthermore, the significantly enhanced engagement process before the Hearings Panel is, in many ways, the quid pro quo for the loss of a right to lodge merits appeals to the Environment Court where the Council accepts the Hearings Panel's recommendations. The government is responsible for the costs of the Environment Court, and accordingly stands to benefit from the reduction in Environment Court appeals. 24

135. The Council notes that the Hearings Panel has considerable scope to regulate its own procedure under proposed sections 124 to 138, including the power to require prehearing session meetings and conferences of experts, and to commission of reports. Under proposed section 159 the Chairperson has powers to decide how many members of the Hearings Panel are to be present at each hearings session. The way these powers are exercised, in conjunction with the volume and complexity of submissions on the proposed plan, are likely to have a significant impact on the overall costs to be borne by the Council under proposed section 165. Given these variables, it is not possible to estimate, in advance and with any degree of precision, of the overall costs of the hearings process. The Council does not oppose being responsible for costs incurred by the Hearings Panel, provided that Council and Government agree upon other aspects of the hearings process discussed in this submission. Recommendation 136. The Council recommends that, consistent with its earlier recommendation that it have a partnership with central government in appointing the Hearings Panel rather than simply a right to be consulted, section 162(3) should be amended as follows: (3) be For the purposes of subsection (1), each member of the Hearings Panel must paid-

(a) remuneration by way of salary, fees, or allowances at a rate determined by agreed between the Minister for the Environment after consultation with and the Council; and

SECTION 4:

PROPOSED AMENDMENTS TO THE RESOURCE MANAGEMENT ACT 1991

137. The Council wishes to comment on several aspects of the proposed amendments to the RMA in Part 1 of the Bill, as set out below. The Council also notes that it supports the intent of the Bill to introduce a 6 month consent time frame for medium sized projects. However as the new provisions are complex there is the potential for local authorities to interpret their requirement in different ways. 138. The key concerns for the Council in Part 1 are: District plan tree protection provisions under clause 12; Mandatory direct referral for resource consent applications under clauses 13, 33, 38 and 41; Changes to section 32 evaluation reports, and new section 32AA further evaluation reports under clause 69; and Changes to stopping the clock where a further information request is made during the resource consent process under clause 92.

139. However, the Council addresses below all significant matters in Part 1 (whether supported or opposed), in the order in which they appear in the Bill.

25

SUBPART 1 AMENDMENTS THAT COMMENCE DAY AFTER ROYAL ASSENT

Clause 7 Monitoring 140. The Council supports this clause subject to the comments and recommendations below. Discussion 141. This clause enables regulation(s) to be made that will specify what a council should monitor and how it should undertake that monitoring. 142. The Council considers that flexibility in the requirements imposed by regulations will be important because some of the environmental issues and challenges, and consequently monitoring approaches, reflect local issues. Accordingly, the Council considers that a balance must be struck between national, regional and local requirements. As regulations will impose obligations and costs onto councils, their design needs to be done in collaboration with local government, including Auckland Council, and funding set aside to fund their implementation. Clause 12 District plan tree protection provisions 143. The Council opposes this clause as currently drafted, and recommends amendments as discussed below. Discussion 144. This change amends section 76(4A) of the RMA to clarify the extent to which a rule protecting a tree or a group of trees may be included in a district plan. A new definition of "groups of trees" is also provided in section 76(4B). 145. Section 76(4A) requires the tree or group of trees to be specifically identified in a schedule to the plan by street address or legal description of the land, or both. In the case of a group of trees it must satisfy the new definition in section 76(4B) to be a "cluster, grove, or line of trees that are located on the same or adjacent allotments." The new provisions apply to tree protection rules in the "urban environment" (also defined in section 76(4B)). 146. The initial amendments to section 76 of the RMA were introduced by the Resource Management (Simplifying and Streamlining) Amendment Act 2009 and were intended to prevent "blanket" tree protection rules in district plans. As a result of the way in which the 2009 amendments have been interpreted, the Council understands that further amendments to section 76 are now considered necessary to clarify its intent. 147. The Council opposes the proposed amendments as currently drafted. Of particular concern to the Council are the large tracts of forest ecosystems on privately owned land in the foothills of the Waitakere Ranges. Many of these sites in places such as Titirangi and Laingholm would meet the definition of urban environment. Much of this area is within the Waitakere Ranges Heritage Area established by the Waitakere Ranges Heritage Area Act 2008 which recognises its national, regional and local significance. 148. The requirement for groups of trees to be identified by street address or legal description of the land on a schedule creates practical difficulties when thousands of properties are involved (approximately 10,000 privately owned properties in the case of 26

the Waitakere Ranges). It would require significant Council resources to schedule these sites and the process would result in a very large district plan schedule. Therefore the mapping of this tree resource is more sensible. 149. In addition, it is unclear whether trees in such a large forest ecosystem would fall within the proposed definition of group of trees. The terms "cluster" and "grove" and "line of trees" create new uncertainties and could be narrowly interpreted to apply to only contiguous and small groups of trees. In the absence of a definition of tree, it is also not clear whether those expressions would apply to both the understory and canopy trees of a forest ecosystem. 150. Similar issues arise with Auckland's coastal pohutukawa resource, tracts of mature trees around the base of the Auckland's volcanic cones, urban stream/coastal riparian edges, places identified as significant ecological areas and native bush in other locations. Trees in these locations may provide important ecosystem services and make a significant contribution to Auckland's landscape character. Aside from the practicalities of scheduling a large number of properties, it is not clear whether coastal pohutukawa along cliffs and riparian vegetation that is not always physically contiguous is a "line of trees" or could be considered a "cluster" or "grove." 151. The existing rules that protect these tree resources are not the type of blanket tree protection rules that the 2009 amendments to the RMA were intended to prevent. In this respect, Property Council New Zealand Incorporated advised the Council and the Environment Court in 2012 that many of the rules in the Auckland Council's district plans that currently protect such resources were not subject to substantive challenge in its application for declarations about the interpretation of the 2009 tree protection rule amendments. The proposed amendments to section 76 could therefore unintentionally result in important tree resources in the Auckland region being unable to be protected in the future through district plan rules. 152. To achieve its obligation to recognise and provide for the protection of areas of significant indigenous vegetation (section 6(c)) and its other duties under the RMA, this may leave the Council with the only option of protecting important tree resources in the Auckland urban environment through its functions as a regional council by the use of regional plan rules, rather than district plan rules. 153. The proposed amendments also do not address issues concerning the interpretation and scope of the definition of "urban environment" in section 76(4B). The current definition excludes non-reticulated allotments greater than 4000m2. In practice this has resulted in interpretative issues in urban areas about whether tree protection rules apply. An example is where parent lots greater than 4000m2 are subject to crossleases. Also in locations such as Whangaparaoa some dwellings have reticulated water supply and sewerage systems and others rely on tank water which has led to confusion from members of the public about whether tree protection rules apply. Recommendation 154. The Council recommends that clause 12 be amended as follows: (1) Replace section 76(4A)(a) with: (a) specifically identified in a schedule to the plan by street address or legal description of the land, or both, regardless of whether the tree or group of trees is also identified on any map in the plan, unless the scheduling relates to trees on 100 or more contiguous allotments, or where the scheduling 27

relates to trees that are within areas of significant indigenous vegetation or significant habitats of indigenous fauna, (in which case identification on any map in the plan is sufficient); . . .or (2) Replace section 76(4B) with: (4B) In subsection (4A), group of trees means a cluster, grove, or line or other group of trees with shared characteristics (such as coastal pohutukawa) that are located on the same or adjacent allotments and includes contiguous native vegetation irrespective of area urban environment means an allotment, other than an allotment in the Waitakere Ranges Heritage Area established under section 5 of the Waitakere Ranges Heritage Area Act 2008, no greater than 4,000 m. . . Clauses 13, 33, 38 and 41 Mandatory direct referral for resource consent applications, coastal permit applications and requirements for designations and heritage orders 155. The Council opposes these clauses. Discussion 156. These changes would make it mandatory for the Council to refer applications to the Environment Court, when requested by the applicant if the application meets or exceeds an investment threshold (yet to be determined in regulations), unless exceptional circumstances (yet to be identified in regulations) exist. 157. The Council does not consider that there is any justification for the proposed amendments. Since the previous amendments were enacted, only 3-4 requests for direct referral have been made in the Auckland area. The Council has made a considered decision to either support or decline the request in each case. 158. The RMA is based on the principle that most resource management decisions are best made by communities affected by those decisions. The approach of making direct referral mandatory for high value applications represents an erosion of local decisionmaking powers. 159. The proposed changes suggest that regulations will set thresholds for direct referrals based on the value of the investment represented by the proposal. This is a relatively blunt measure. In practice, there is no direct relationship between the investment represented by a proposal and the effects and/or level of controversy it raises. The value of a proposal is not a safe proxy for the importance or complexity of a resource consent decision: "low value" proposals affecting natural resources may be highly significant, while "high value" proposals in general conformity with plan provisions may be straightforward and uncontroversial. Mandatory direct referral in these instances could lead to increased costs for the Council, and increased costs and an intimidating atmosphere for third parties including lay people in particular. 160. Mandatory direct referral based on the value of the investment is also unnecessary given the applicant's ability to seek direct referral, and ministerial call-in powers, under existing RMA provisions. 161. The suggestion that local authorities would be able to defer direct referral only in exceptional circumstances necessitates the exercise of discretion and arguably creates further uncertainty, despite the prospect of regulations (under section 360) 28

providing some guidance on the matters to which an authority is required to have regard to in determining whether exceptional circumstances exist. 162. The Environment Court is not under the same statutory time constraints as the Council, so this could arguably give rise to a longer processing period for these types of consents (particularly when other changes to impose timeframes for the processing of complex applications by local authorities are considered). Recommendation 163. The Council proposes that clauses 13, 33, 38 and 41 be deleted in their entirety. Clauses 14, 39 and 42 Consent authority report requirements for direct referral 164. The Council supports these clauses, provided that the changes proposed to section 285 in clause 47 are also made. Discussion 165. The changes proposed to sections 87F, 198D, and 198J clearly identify the matters that a consent authority must address in its report on a resource consent application or a requirement relating to a designation or a heritage order that has been directly referred. The proposed changes require that a consent authority's report must (a) address issues that are set out in sections 104 to 112 or sections 171-191 or, sections 168A(3) or 189A(10) as relevant; (b) suggest conditions that it considers should be imposed if the Environment Court grants the application; and (c) provide a summary of submissions received. 166. The existing RMA provisions give the consent authority a discretion to address matters (a) and (b) in its report. They also do not require a consent authority to provide a summary of the submissions received. 167. The proposed changes also include a new subclause (6) which requires a consent authority to ensure that it provides reasonable assistance to the Environment Court in relation to any matters raised in the authority's report. 168. The Council supports clauses 14, 39 & 42, provided that the changes proposed to section 285(7) and (8) in clause 47 are also made. Those changes enable the Environment Court to order an applicant to pay the costs and expenses that a consent authority or a territorial authority incurred in assisting the Court in relation to a report provided by the authority. The Court must apply a presumption that such costs are to be ordered against the applicant (section 285(8)). 169. The changes will likely result in increased costs being incurred by the Council. However, if these costs can then be passed on to the applicant by order of the Environment Court under the changes proposed to section 285(7) of the RMA, the Council does not oppose them. Recommendation 170. Enact clauses 14, 39 and 42 and the changes to section 285(7) and (8) in clause 47 in their current form. 29

Clause 19 Correcting minor mistakes/defects in a resource consent 171. The Council supports this clause. Discussion 172. This change provides the Council (as a consent authority) with an additional 5 working days (from 15 working days to 20 working days) from the date the consent was granted to issue an amended consent that corrects minor mistakes or defects in the consent. Recommendation 173. Enact clause 19 in its current form. Clause 20 Local authority to be notified of call in request 174. The Council supports this clause. Discussion 175. The change will require an applicant to serve the Council (where it is the local authority) with notice of the request to the Minister to call in a matter. This change will ensure that the Council is made aware of all call in applications. Recommendation 176. Enact clause 20 in its current form. Clause 47 Court can order applicants to pay costs relating to direct referral report 177. The Council supports this clause, for the reasons outlined in the discussion of clauses 14, 39 and 42 above. Clause 61 Making of regulations 178. The Council supports this clause as it relates to (hk) and (hl), but opposes this clause as it relates to (hm). Discussion 179. These changes enable the making of regulations for specifying indicators or other matters by reference to which a local authority must monitor the state of the environment of its region or district, and various related matters. The Council supports most of the proposed changes, but would expect to be significantly involved in any legislative development that had operational consequences for environmental monitoring. 180. However, the Council opposes the regulation making power in paragraph (hm), which provides for the setting of threshold amounts and matters to which an authority is required to have regard to in determining whether exceptional circumstances exist (in the context of mandatory direct referral). The reasons for the Council's opposition are discussed in relation to clauses 13, 33, 38 and 41.

30

Recommendation 181. The Council proposes that paragraph (hm) be deleted. Clause 67 Transitional provisions that apply to amendments made on or after 1 January 2013 182. The Council supports the intent of this clause, but seeks amendments to clause 2 in the new Schedule 12 to the RMA contained in Schedule 2 of the Bill. Discussion 183. Schedule 2 inserts a new Schedule 12 to the RMA, which contains the transitional provisions relating to the Bill's amendments to the RMA. 184. Clause 2 sets out the transitional provisions for the existing section 32 to apply to certain proposed policy statements and plans based on their state of advancement through the First Schedule process. As presently worded, however, it would not exempt the first Unitary Plan from having to comply with the new sections 32 and 32AA. 185. The Council has been preparing the Unitary Plan over the past two years in accordance with the existing section 32 provisions. The Unitary Plan is a significant document, which is to be notified in 2013. The Council considers that a requirement for the Council to undertake further evaluation reports in accordance with the proposed amendments to section 32 has the potential to cause significant delays to the notification of the Unitary Plan. Recommendation 186. The Council's opposition to further evaluations under section 32AA is discussed below. However, should the committee decide that section 32AA (contrary to the Council's submission) be retained, the Council recommends that a new clause 2A be added as follows: 2A Existing section 32 applies to first Auckland combined plan The evaluation report under section 32, and further evaluation required under section 32AA in relation to the first Auckland combined plan (as defined in section 116 of the Local Government (Auckland Transitional Provisions) Act 2010), must be undertaken as if subpart 2 had not come into force. SUBPART 2 AMENDMENTS THAT COMMENCE 3 MONTHS AFTER ROYAL ASSENT (OR DAY AFTER ROYAL ASSENT FOR CERTAIN PURPOSES) Clause 69 Section 32 evaluation reports and section 32AA further evaluation reports 187. The Council supports this section, subject to the comments and recommendation below. Discussion 188. The changes would replace the existing section 32 with two new sections section 32 (which sets out the requirements for preparing and publishing evaluation reports) and 31

section 32AA (which sets out the requirements for undertaking and publishing further evaluations). 189. In addition to existing requirements, the changes outlined in the new section 32 would require that an evaluation report: a) Identify alternative options (in addition to the proposal). b) Assess the efficiency and effectiveness of the provisions of the proposal to achieve the proposals objectives. c) Summarise the rationale for having the provisions of the proposal. d) Identify, assess and if practicable, quantify, the benefits and costs of the environmental, economic, social and cultural effectives that are expected from implementation of the proposal. e) Include the opportunities for economic growth which are gained or lost if the proposal is implemented. f) Include the opportunities for expansion or reduction in employment that result if the proposal is implemented.

190. The Council supports there being a robust evidential and analytical basis for RMA planning documents, which the public can scrutinise. It also strongly supports the stipulation in proposed section 32(1)(c) that the level of detail the evaluation report contains should correspond to the scale and significance of the environmental, economic, social and cultural effects that are anticipated from the implementation of the proposal. 191. However, there are limits on the extent to which Parliament can legislate for "good practice" in the preparation of section 32 reports. Moreover, as noted in the Regulatory Impact Statement for the Bill, an evaluation group convened following the 2009 TAG report concluded that section 32 was not fundamentally flawed, but that legislative and practice improvements could be made to improve the quality and consistency of councils' section 32 reporting. The proposed changes to section 32 go significantly further. 192. The Council has a number of concerns with the proposed sections 32 and 32AA as presently drafted. First, the particular emphasis now placed on the opportunities for economic growth and employment, coupled with the the requirement to quantify (if practicable) the benefits and costs of environmental, economic, social and cultural effects, risks upsetting the current balance contained in the definition of sustainable management in section 5 of the RMA. Certain environmental, social and in particular cultural effects may be less amenable to quantification than economic effects. For example, it is unclear how the environmental, social and in particular cultural effects of adopting particular rules in relation to wastewater discharges might be quantified, as opposed to described qualitatively. The Council recommends changes to the Bill, outlined below, to clarify the implications of the requirement to quantify costs and benefits. 193. The Council also opposes the requirement in proposed section 32(3) to examine the objectives of both the proposal and an existing standard, statement regulation or plan that the proposal would amend. In a section 32 analysis there is no presumption in favour of the status quo, and the proposed section 32(1) already requires the 32

evaluation report to analyse both the proposed provisions and "other reasonably practicable options for achieving the objectives" in the proposal. In Auckland's case, the objectives in existing RMA planning documents are typically over 10 years old. The analytical requirements of the proposed section 32(3) would significantly increase the workload of councils preparing their evaluation reports, and the Ministry when auditing the reports, without any corresponding benefit in terms of the explaining the reasons for the proposal. 194. More generally, the Council is concerned that the proposed section 32(1)(c) does not go far enough to prevent the enhanced section 32 requirements imposing very significant compliance costs on local authorities, which could only be funded through increase in rates. The resources available to local authorities must, it is submitted, be a relevant factor in determining the extent to which costs and benefits are analysed in a section 32 evaluation report (as they are under section 79(2)(b) of the Local Government Act 2002). In addition, clarity is required that the evaluation required under section 32(1) is of then proposal as a whole, rather than potentially, each objective in the proposal. There comes a point at which the benefits to be achieved from ever more fine grained analysis become illusory, and further information on the effects of a proposal can only be gained from public consultation and feedback through the submission process. 195. The Council opposes the requirement under the proposed section 32AA to undertake a section 32 evaluation for each decision where the plan differs from the notified version of the plan. Decision reports under clause 10 of the RMA's First Schedule can and do address the costs and benefits of changes made to proposed plans and policy statements in response to submissions. There is no evidence that separate and further section 32 evaluation report is required. In particular, a key rationale for the evaluation report which is prepared before a proposed plan or policy statement is notified that the public might be informed of the reasons for the proposal and presented with an analysis of alternatives, to assist them when making submissions clearly does not apply. In the Council's view the proposed section 32AA requirement would simply add to the compliance costs incurred by a local authority during the First Schedule process, without any benefit to the public or stakeholders in that process. Recommendation 196. The Council therefore recommends that the proposed new section 32, to be inserted under clause 69, be amended as follows: Replace section 32 with: 32 Requirements for preparing and publishing evaluation reports (1) An evaluation report required under this Act must (a) examine the extent to which the objectives of the proposal being evaluated, as a whole, are the most appropriate way to achieve the purpose of this Act; and (b) examine whether the provisions in the proposal, as a whole, are the most appropriate way to achieve the objectives by (i) (ii) identifying other reasonably practicable options for achieving the objectives; and assessing the efficiency and effectiveness of the provisions in achieving he objectives; and 33

(iii) (c)

summarising the reasons for deciding on the provisions; and

contain a level of detail that corresponds to the scale and significance of the environmental, economic, social, and cultural effects that are anticipated from the implementation of the proposal.

... (2A) To avoid doubt, the ability to quantify some benefits and costs does not mean those benefits and costs must be given greater weight than benefits and costs which cannot be quantified. If the proposal will amend an existing standard, statement, regulation, or plan, the examination under subsection (1)(b) must examine the objectives of both the proposal and the existing standard, statement, regulation, or plan. A regional council or territorial authority which prepares an evaluation report may have regard to the extent of its resources in determining the level of detail in the report.

(3)

.... 32AA Requirements for undertaking and publishing further evaluations (1) A further evaluation required under this Act (a) is required only for any changes that have been made to, or are proposed for, the proposal since the evaluation report for the proposal was completed (the changes); and (b) must be undertaken in accordance with section 32(1) to (4); and (c) must, despite paragraph (b) and section 32(1)(c), be undertaken at a level of detail that corresponds to the scale and significance of the changes; and (d) must (i) (ii) be published in an evaluation report that is made available for public inspection at the same time as the proposal is publicly notified; or be referred to in the decision-making record in sufficient detail to demonstrate that the further evaluation was undertaken in accordance with this section and be included in the public notification of the proposal.

(2) To avoid doubt, an evaluation report does not have to be prepared if a further evaluation is undertaken in accordance with subsection (1)(d)(ii). (3) In this section, proposal means a proposed statement, plan, or change for which a further evaluation must be undertaken under this Act.

34

Clause 70 Ability to challenge provisions 197. The Council opposes this clause. Discussion 198. The change proposed by clause 70 would replace, in section 32A(1), the words "section 32 has not been complied with", with a reference to the evaluation report having not been prepared or regarded, a further evaluation having not been undertaken or regarded, or section 32 or 32AA having not been complied with. 199. A key effect of the change is to allow submitters to challenge not only a failure to undertake a proper section 32 analysis, but also to challenge the resulting plan provisions on the basis that they do not have particular regard to the section 32 analysis. A submitter already has full rights to address the merits of a proposed plan or policy statement through the submission process. The proposed amendment, however, implies that the outcome of a council's section 32 analysis must point in a particular direction. It also elevates the section 32 analysis beyond other matters a council is required to take into account when preparing a regional policy statement under section 61, a regional plan under section 66, and a district plan under section 74. Recommendation 200. The Council recommends that clause 70(1) be deleted. Clauses 75 - 77 Matters to be considered when preparing regional policy statements and regional and district plans 201. The Council opposes proposed subsections 61(1)(d), 66(1)(e) and 74(1)(e). Discussion 202. The three subsections referred to above, for regional policy statements, regional plans and district plans respectively, insert a new requirement on councils to prepare the document "in accordance with its obligation to have particular regard to an evaluation report prepared in accordance with section 32. 203. The requirement to have "particular regard" to the section 32 evaluation report elevates that report above other considerations listed in sections 61(1), 66(1) and 74(1) of the Act, notably the provisions of Part 2. There is currently no hierarchy in these subsections, and nor should there be. 204. The proposed amendments, by inserting a hierarchy into sections 61(1), 66(1) and 74(1), also have the potential to undermine other subsections in sections 61, 66 and 74 that recognise the hierarchy of planning documents with national policy statements at the top, followed by regional policy statements and finally, regional and district plans. Recommendation 205. The Council recommends that the proposed subsections 61(1)(d), 66(1)(e) and 74(1)(e) be deleted. Clause 79 Scope and effect of declaration 206. The Council opposes this clause. 35

Discussion 207. This clause would allow the Environment Court, in declaration proceedings to determine the existence or extent of the proposed duty "to prepare and have particular regard to an evaluation report or to undertake and have particular regard to a further evaluation or imposed by section 32 or 32AA". 208. It should not be for the court to determine what the requirement to have particular regard to the evaluation means in any given case. The duty to have regard to a matter is a procedural decision-making requirement (mandatory relevant consideration), not a direction that particular substantive outcomes must be adopted. There will inevitably be disputes as what the obligation to have "particular regard" entails in practice, and how compliance with this obligation may be demonstrated. Recommendation 209. The Council recommends that clause 79 be deleted. Clause 81 Section 32 evaluation report to be prepared for proposed policy statement or plan 210. The Council opposes this clause. Discussion 211. This clause would insert a new clause 5(1) into the RMA First Schedule, requiring a local authority that has prepared a proposed policy statement or plan to prepare an evaluation report for that document in accordance with section 32, and to have particular regard to that report when deciding whether to proceed with the statement or plan. Under this clause as currently worded, preparation of the evaluation report would occur after the preparation of the policy statement or plan. This is inconsistent with the requirements in sections 61, 66 and 74 of the RMA, which provide that a proposed policy statement or plan must be prepared in accordance with an evaluation report that is prepared before the preparation of a proposed policy statement or plan. Recommendation 212. The Council therefore recommends that clause 81 be deleted. Clause 82 Local authority decision on proposed policy statement or plan to include further evaluation report (section 32AA) 213. The Council opposes this clause. Discussion 214. Clause 82(1) adds a further requirement into clause 10(2) of the First Schedule, that a decision of a local authority (such as the Council) include a further evaluation of the proposed policy statement or plan undertaken in accordance with section 32AA. Consistent with the Council's submission on clause 69 opposing the proposed new section 32AA requiring a further evaluation to be undertaken, the Council opposes clause 82(1). 215. Clause 82(2) adds a further requirement into clause 10(4) of the First Schedule, that a council is to have particular regard to the further evaluation when making its clause 10 36

decision. Consistent with the Council's submission on clause 69, the Council also opposes clause 82(2). Recommendation 216. The Council therefore recommends that clause 82 be deleted. Clause 84 Local authority to have particular regard to the evaluation report prepared for the proposed plan or change in accordance with clause 22(1) 217. Consistent with the Council's submission on clause 69, the Council also opposes clause 84 and recommends that it be deleted. Recommendation 218. The Council therefore recommends that clause 84 be deleted. Clause 85 Local authority to undertake further evaluation report in relation to private plan changes 219. Consistent with the Council's submission on clause 69, the Council also opposes clause 84 and recommends that it be deleted. Recommendation 220. The Council therefore recommends that clause 85 be deleted.

SUBPART 3 AMENDMENTS THAT COMMENCE BY ORDER IN COUNCIL

Clause 92 Provision of further information (when the processing clock stops) 221. The Council opposes the amendments made by this clause to the excluded time periods after a request for further information has been made in sections 88C(1) and 88C(2)(a). Discussion 222. This clause amends section 88C(1) so that the time limits for processing a resource consent application are affected by only the first request for further information that is made before notification. The clause also amends section 88C(2)(a) so that for any non-notified, limited notified or publicly notified application the processing clock only stops from the third working day after a request for further information is made. At present the clock stops on the day that the request is made. 223. The Council is concerned at the proposed changes to section 88C(1) that will result in the processing clock only stopping after the first request for information that is made before notification of an application. The clock is not stopped if the request for information is made after notification. New information often comes to light during the submissions process and this may result in the Council needing to make a further substantive request for information after notification. During the period that the applicant is responding to an information request after the receipt of submissions the Council considers that the processing clock should also stop. 224. The proposed change to section 88C(2)(a) is also of concern to the Council because as currently drafted it will apply to all requests for further information. In the majority of 37

cases the Council's requests for information relate to significant matters (i.e. not just minor omissions). If the processing clock does not stop until three days after an applicant has been requested to provide further information, the processing clock will continue to run. However it is unlikely that the Council will be able to continue to process the application during that time in the absence of the information requested. 225. The proposed change to section 88C(2) will effectively mean that the Council has three less working days to process applications when a request for further information that has a significant bearing on an application has been made. In the case of a nonnotified application this will effectively reduce the processing time frame from 20 to 17 working days. 226. There is no clear rationale for the proposed change to section 88C(2) and the C Council recommends that section 88C(2)(a) remain unchanged. Recommendation 227. It therefore recommends that clauses 92(3) and 92(5) be deleted.

Clause 121/Schedule 1 Information requirements to support resource consent applications 228. The Council supports this clause and Schedule 1, subject the comments in the discussion below. Discussion 229. However, the Council considers that further changes are required. The information requirements to support a resource consent application were previously limited to the lodgement of an Assessment of Environmental Effects in such detail as corresponds with the scale and significance of the effects that the activity may have on the environment (section 88(2)(b) of the RMA). 230. The proposed changes involve the relocation of all information requirements into a revised Schedule 4 (previously these were variously located in section 88, Schedule 4, or in forms promulgated under the Resource Management (Forms, Fees and Procedure) Regulations 2003). 231. In addition to the Assessment of Environmental Effects that is required by Clauses 5 and 6 of Schedule 4, the changes in the new Schedule 4 require, in clause 1(1), that an application for resource consent include (a) a description of the activity; (b) a description of the site at which the activity is to occur; (c) the full name and address of each owner or occupier of the site; (d) a description of any other activities that are part of the proposal to which the application relates; (e) a description of any other resource consents required for the proposal to which the application relates; 38

(f) an assessment of the activity against the matters set out in Part 2; and (g) an assessment of the activities against any relevant provisions of a document referred to in section 104(1)(b). 232. There is now an explicit requirement for all applications to be accompanied by an assessment of the proposal against relevant plan provisions, which has the effect of underscoring the importance of policy considerations. 233. Collectively, the proposed changes have the effect of raising the bar, in terms of the quality and completeness of applications. They will require the Council's resource consent staff to carry out a more thorough assessment of the adequacy of applications, the costs of which will remain recoverable from the applicant. The Council considers that this can also be supported through internal training and guidance. The changes clarify the obligations of consent applications, would further improve the quality of applications, and reduce subsequent processing delays and costs. The changes are likely to lead to a short term spike in the rejection of applications, particularly those not lodged on behalf of applicants by resource management professionals. 234. However, the Council is concerned about the impact of the changes on lay applicants and small businesses, and the ease of obtaining consent for activities with less significant effects. It considers that the information requirements should be commensurate with the scale of the activity and anticipated effects. It seeks changes to the clause to enable councils to waive the requirement (in clause 1(1)(g) of Schedule 4) for applicants to provide an assessment of the activity against the relevant plan provisions in appropriate circumstances. Recommendation 235. The Council proposes a new subclause (1A) be added to the proposed new Schedule 4 as follows: (1A) A consent authority may, in its discretion and having regard to the nature of the activity, waive compliance with clause 1(1)(g).

39

SECTION 5:

SCHEDULE OF PROPOSED AMENDMENTS

Part 1 - Proposed amendments to the Resource Management Act 1991 Clause 12 Section 76 amended (District rules) The Council recommends that the proposed clause 12 be amended as follows: (1) Replace section 76(4A)(a) with: (a) specifically identified in a schedule to the plan by street address or legal description of the land, or both, regardless of whether the tree or group of trees is also identified on any map in the plan, unless the scheduling relates to trees on 100 or more contiguous allotments, or where the scheduling relates to trees that are within areas of significant indigenous vegetation or significant habitats of indigenous fauna, (in which case in which case identification on any map in the plan is sufficient); . . . (2) Replace section 76(4B) with: (4B) In subsection (4A), group of trees means a cluster, grove, or line or other group of trees with shared characteristics (such as coastal pohutukawa) that are located on the same or adjacent allotments and includes contiguous native vegetation irrespective of area urban environment means an allotment, other than an allotment in the Waitakere Ranges Heritage Area (as defined in the Waitakere Ranges Heritage Area Act 2008), no greater than 4,000 m. . . Clause 13 Section 87E amended (Consent authority's decision on request) The Council recommends that this clause be deleted. Clause 33 Section 165ZFE amended (Processing of affected applications) The Council recommends that this clause be deleted. Clause 38 Section 198C amended (Territorial authority's decision on request) The Council recommends that this clause be deleted. Clause 41 Section 198I amended (Territorial authority's decision) The Council recommends that this clause be deleted. Clause 61 Section 360 amended (Regulations) The Council recommends that clause 61 be amended as follows: Replace section 360(1)(hk) with: . (hm) prescribing, for the purposes of sections 87E, 165ZFE, 198C, and 198I, threshold amounts and matters to which an authority is required to have regard in determining whether exceptional circumstances exist: 40

Clause 69 Section 32 replaced (Consideration of alternatives, benefits, and costs) The Council recommends that clause 69 be amended as follows: Replace section 32 with: 32 Requirements for preparing and publishing evaluation reports (1) An evaluation report required under this Act must (a) examine the extent to which the objectives of the proposal being evaluated, as a whole, are the most appropriate way to achieve the purpose of this Act; and (b) examine whether the provisions in the proposal, as a whole, are the most appropriate way to achieve the objectives by (i) (ii) (iii) (c) identifying other reasonably practicable options for achieving the objectives; and assessing the efficiency and effectiveness of the provisions in achieving he objectives; and summarising the provisions; and reasons for deciding on the

contain a level of detail that corresponds to the scale and significance of the environmental, economic, social, and cultural effects that are anticipated from the implementation of the proposal.

... (2A) To avoid doubt, the ability to quantify some benefits and costs does not mean those benefits and costs must be given greater weight than benefits and costs which cannot be quantified. If the proposal will amend an existing standard, statement, regulation, or plan, the examination under subsection (1)(b) must examine the objectives of both the proposal and the existing standard, statement, regulation, or plan. A regional council or territorial authority which prepares an evaluation report may have regard to the extent of its resources in determining the level of detail in the report.

(3)

... 32AA Requirements for undertaking and publishing further evaluations (4) A further evaluation required under this Act (e) is required only for any changes that have been made to, or are proposed for, the proposal since the evaluation report for the proposal was completed (the changes); and (f) must be undertaken in accordance with section 32(1) to (4); and

41

(g) must, despite paragraph (b) and section 32(1)(c), be undertaken at a level of detail that corresponds to the scale and significance of the changes; and (h) must (i) (ii) be published in an evaluation report that is made available for public inspection at the same time as the proposal is publicly notified; or be referred to in the decision-making record in sufficient detail to demonstrate that the further evaluation was undertaken in accordance with this section and be included in the public notification of the proposal.

(5) To avoid doubt, an evaluation report does not have to be prepared if a further evaluation is undertaken in accordance with subsection (1)(d)(ii). (6) In this section, proposal means a proposed statement, plan, or change for which a further evaluation must be undertaken under this Act. Clause 70 Section 32A amended (Failure to carry out evaluation) The Council recommends that clause 70(1) be deleted. Clause 75 Section 61 amended (Matters to be considered by regional council (policy statements)) The Council recommends that clause 75 be amended by deleting proposed subsection 61(1)(d). Clause 76 Section 66 amended (matters to be considered by regional council (plans)) The Council recommends that clause 76 be amended by deleting proposed subsection 66(1)(e). Clause 77 Section 74 amended (Matters to be considered by territorial authority) The Council recommends that clause 77 be amended by deleting proposed subsection 74(1)(e). Clause 79 Section 310 amended (Scope and effect of declaration) The Council recommends that clause 79 be deleted. Clause 81 Schedule 1, clause 5 amended The Council recommends that clause 81 be deleted. Clause 82 Schedule 1, clause 10 amended The Council recommends that clause 82 be deleted. Clause 84 Schedule 1, clause 25 amended The Council recommends that clause 84 be deleted.

42

Clause 85 Schedule 1, clause 29 amended The Council recommends that clause 85 be deleted. Clause 92 Section 88C amended (Excluded time periods relating to provision of further information) The Council recommends that clauses 92(3) and 92(5) be deleted. Schedule 1 The Council recommends that a new subclause (1A) be added to the proposed new Schedule 4 as follows: (1A) A consent authority may, in its discretion and having regard to the nature of the activity, waive compliance with clause 1(1)(g). Schedule 2 The Council recommends that a new clause 2A be added to the proposed new Schedule 12 of the RMA as follows: 2A Existing section 32 applies to first Auckland combined plan The evaluation report under section 32 in relation to the first Auckland combined plan (as defined in the Local Government (Auckland Transitional Provisions) Act 2010), must be undertaken as if subpart 2 had not come into force. Alternatively, if the Council's recommendation in relation to clause 69 is not accepted, and a new section 32AA in inserted into the RMA, the Council recommends that a new clause 2A be added to the proposed new Schedule 12 of the RMA as follows: The evaluation report under section 32, and further evaluation required under section 32AA in relation to the first Auckland combined plan (as defined in the Local Government (Auckland Transitional Provisions) Act 2010), must be undertaken as if subpart 2 had not come into force. Part 2 - Proposed amendments to Local Government (Auckland Transitional Provisions) Act 2010 (references to sections are to sections to be inserted into that Act under clause 125 of the Bill) Section 119(1)(c) The Council recommends that proposed section 119(1)(c) be amended as follows: (c) a district plan for Auckland, excluding the area covered by the Hauraki Gulf Islands district plan until such time as a variation or plan change is introduced to incorporate the Hauraki Gulf Islands into the Auckland combined plan. Sections 121(1) and (2) The Council recommends that proposed sections 121(1) and (2) be amended as follows:

43

Restriction on amendments or variations to Auckland combined plan (1) The following provisions of the RMA do not apply to the Auckland combined plan before it is operative: (a) section 55: (b) clauses 16 to 16B 16A of Schedule 1 (c) any other provision. . . (1) Auckland Council may notify a variation to the Auckland combined plan under clause 16A of Schedule 1 only if one or more of the circumstances in subsection (2) applies. (2) However, despite subsection (1) an amendment may be made A variation may only be notified(a) before the closing date for further submissions referred to in section 120(7) of this Act, unless paragraph (b) or paragraph (c) applies; or (b) if the variation concerns a site-specific addition to a historic heritage schedule to the Auckland combined plan; under clause 4(10) of Schedule 1 of the RMA; or (b) at the direction of the Hearings Panel, or as a result of the Auckland Council's decisions on the recommendations of the Hearings Panel. The Council also recommends that a new section 121A be inserted as follows: 121A Restriction on requests for changes to policy statements or plans Notwithstanding anything in Part 2 of Schedule 1 of the RMA, no person may request a change to a policy statement, regional plan or district plan that applies in Auckland in the period commencing on the date the Auckland combined plan is publicly notified and ending on the date the Auckland combined plan is made operative. Section 122 The Council recommends that proposed section 122(3) be amended as follows: (3) The Auckland Council must provide the reports to the Ministry as soon as practicable after they are prepared, but no later than 60 20 working days before the day on which the proposed plan is to be publicly notified. Section 129(6) The Council recommends that proposed section 129(6) be amended as follows: (6)To avoid doubt, t The Council or an expert engaged by the Council may attend a conference under this section only if authorised to do so by unless the Hearings Panel specifically directs otherwise. Section 130 The Council recommends that proposed section 130(4) be amended as follows: (4) The person who conducts the mediation or other process must report the outcome to the Hearings Panel, but must not advise the Hearings Panel of any material communicated or made available at the mediation or other process on a without prejudice basis.

44

Section 132(3)(b) The Council recommends that subsection (3) be amended as follows: (a) subject to paragraph (b), may permit a party to question any other party or witness; and (b) may permit cross-examination of experts, but not of lay witnesses; and Section 139(2) The Council recommends that proposed section 139(2) be deleted. Section 140(3) The Council recommends that proposed section 140(3) be amended as follows: (3) To avoid doubt, when When complying with subsection 1(f) in respect of section 66 of the RMA, the Hearings Panel must ensure that regard has been had to the its recommendations are consistent with the spatial plan for Auckland prepared and adopted under section 79 of the Local Government (Auckland Council) Act 2009. Section 143(3) The Council recommends that proposed section 143(3) be deleted. Section 143(4) The Council recommends that proposed section 143(4) be amended as follows: (4) The Council must, no later than 20 40 working days after it is provided with the report under section 141 . . . Section 147 The Council recommends that proposed section 147 be amended as follows: 147 RMA provisions relating to legal effect of rules do not apply (1) Sections 86A to 86G of the RMA do not apply, with all necessary modifications, to a rules contained in the proposed plan, all of which are to have immediate legal effect on and from notification of the proposed plan. (2) Without limiting subsection (1), every reference to clause 10(4) of Schedule 1 must be read as a reference to section 143(4)(a). The Council recommends that a new section 147A be inserted as follows: 147A Weight to be given to proposed plan When considering an application for resource consent under section 104 of the RMA, or a requirement under section 171 or section 191 of the RMA, a consent authority or a territorial authority (as the case may be) must give greater weight to relevant provisions in the proposed plan than to relevant provisions in a regional policy statement or plan. Section 150 The Council recommends that proposed section 150 be amended as follows:

45

150 (1)

Right of appeal to Environment Court A person who made a submission on the proposed plan may appeal to the Environment Court in respect of a provision or matter relating to the proposed plan(a) (b) that the person addressed in the submission; and in relation to which the Council rejected a recommendation of the Hearings Panel, which resulted in by(i) (ii) (iii) including a provision being included in the proposed plan; or excluding a matter being excluded from the proposed plan; or amending a provision recommended by the Hearings Panel.

Section 152 The Council recommends that proposed section 152 be amended as follows: 152 (1) Right of appeal to High Court on question of law A person who made a submission on the proposed plan may appeal to the High Court in respect of a provision or matter relating to the proposed plan(a) (b) that the person addressed in the submission; and in relation to which the Council accepted a recommendation of the Hearings Panel, which resulted in by(i) (ii) including a provision being included in the proposed plan; or excluding a matter being excluded from the proposed plan.

Section 155 The Council recommends that proposed section 155 be amended as follows: Section 155 Ministers and Auckland Council for Environment and Minister of Conservation to establish Hearings Panel ... (3) The Hearings Panel must be appointed as follows: (a) The Ministers have the right to appoint one member; (b) Auckland Council has the right to appoint one member; (c) The chairperson and other members must be appointed jointly by the Ministers after consulting with and the Auckland Council after consulting the Independent Mori Statutory Board. (4) The Ministers and the Council must appoint members who collectively have knowledge of, and expertise in relation to, the following: (a) the RMA; and (b) district plans, regional plans (including regional coastal plans), and regional policy statements or combined regional and district documents; and (c) tikanga Mori, as it applies in Tmaki Makaurau; and 46

(d) Tmaki Makaurau, the manawhenua, and the other people of Tmaki Makaurau. ... (7) To avoid doubt, the Ministers and the Council may appoint additional members after the initial appointment of members so long as the total number is no more than 7 members and a chairperson. (8) The Ministers and the Council may appoint a member to replace a member who ceases to hold office. Section 157 The Council recommends that section 157 be amended as follows: (2) The Minister for the Environment and, the Minister of Conservation and the Auckland Council may jointly, at any time for just cause, remove a member by written notice to the member (with a copy to the Hearings Panel). Section 162 The Council recommends that proposed section 162 be amended by adding a new subsection (3), as follows: (3) For the purposes of subsection (1), each member of the Hearings Panel must be paid (a) remuneration by way of salary, fees, or allowances at a rate determined by agreed between the Minister for the Environment after consultation with and the Council;

47

APPENDIX 1:

LOCAL BOARD SUBMISSIONS

Manurewa Local Board

25th February 2013

SubmissionManurewaLocalBoardontheResourceManagementReformBill Background TheManurewaLocalBoardpromotesthesocial,economic,environmentalandculturalwellbeingof currentandfuturecommunitiesintheManurewaarea.ThereforetheLocalBoardhasconsidered theResourceManagementReformBillandsubmitsthecommentsasoutlinedbelow. Submissionpoints TheManurewaLocalBoardwouldliketocommentonthefollowingaspectsoftheResource ManagementReformBill(furtherreferredtoastheBill). 1. IntheproposedBillitissetoutthatMinisteroftheEnvironmentandtheMinisterof ConservationappointallMembersoftheHearingPanelontheUnitaryPlanandthat AucklandCouncilwillonlybeconsulted.TheBoardbelieveshoweverthatitisextremely importantthattheCouncilisinvolvedinthedecisionmakingprocessastheUnitaryPlansets outaspecialsetofplanningprovisionsfortheAucklandregion.ThereforetheBoardstrongly supportstheAucklandCouncilsubmissionandwouldliketoemphasizetheimportanceofa partnershiparrangementwiththeGovernmentontheselectionoftheHearingPanel Members(Part4,Clause125,p6189). 2. TheManurewaLocalBoardisconcernedabouttheverylimitedappealprocessonthe UnitaryPlanasaresultoftheproposedchangestotheBillandwouldliketoseethat processchanged.TheManurewaLocalBoardhassomeconcernsthatwiththeproposed changestotheprocess,AucklandCouncilwillnotabletoguaranteearobustandmeaningful consultationandengagementprocessandtakeallthepointsraisedduringtheconsultation periodintofullconsideration(Part4,Clause125,p6189). 48

3. TheBillrestrictstheabilitytodovariationsontheUnitaryPlan.AlthoughtheManurewa LocalBoardunderstandstherationalbehindthisprinciple,theBoardisoftheviewthat theremaybespecialcircumstanceswhichrequireavariationtobepromulgated.TheBoard wouldliketoadvocateforanabilitytonotifyvariationstotheUnitaryPlanaslongasthe variationprocesshasconcludedthestageofsubmissionsandfurthersubmissions,priorto thehearings. 4. Withregardstothetreerules,theManurewaLocalBoardsupportstheCouncilsubmission andagreeswiththesuggestionofmappingtoindicatethatalltreesinaparticularareaare protected(Part1,Clause12,p1314). 5. UndertheBilltheevaluationreportsrequiredforaresourceconsentapplication,needtobe moredetailedthenunderthecurrentsection32analysis.TheManurewaLocalBoardin principlesupportsthechanges.HowevertheBoardwouldliketopointoutthatabalanced approachonthisisneeded.Especiallyincaseofasimpleresourceconsent.TheBoard believesthatthenewlegislationshouldnotresultinanincreaseincostsorcomplexityof theconsentapplicationprocess(Part1,Clauses6985,p3138). Conclusion TheManurewaLocalBoardislookingforwardtoaconstructivedialoguewithLocalGovernmentand theEnvironmentalCommittee. TheLocalBoardwishestospeakinsupportofthissubmission. Yours sincerely

Angela Dalton Chairperson Manurewa Local Board Manurewa Local Board Office Private Bag 92300 Auckland 1142 E-mail: Angela.Dalton@aucklandcouncil.govt.nz Telephone: 021 212 5115

49

Orakei Local Board

Submission to the

Local Government and Environment Committee

RESOURCE MANAGEMENT REFORM BILL

28 February 2013

Orakei Local Board, Auckland Council submission on the Resource Management Reform Bill

1. 2. 3. 4. 5.

This is the Orakei Local Boards submission on the Resource Management Reform Bill (Bill). The address for service is Orakei Local Board, Auckland Council, Private Bag 92300, Victoria Street West, Auckland 1142. Please direct any enquiries to Troy Churton, Member, Orakei Local Board. Phone 027 420 4076 or email troy.churton@aucklandcouncil.govt.nz Orakei Local Board wishes to appear before the Local Government and Environment Committee to discuss this submission. This submission has been forwarded to the Auckland Council Governing Body to be attached as a submission to the Auckland Council submission.

The Orakei Local Board, Auckland Council submits on the proposed Bill as follows: 1. The Orakei Local Board supports the overall approach taken in Part 2 of the Bill, which inserts new provisions into the LGATPA designed to streamline the process for delivery of the first Auckland combined plan.

50

2. The board believes there is too much uncertainty about the impact the planned compact city intensification will have in Auckland and the way it will be rolled out. As a result we do not support the Governing Bodys request that full legal effect be provided at notification without qualification. We believe that only if, following Unitary Plan consultation and the Hearings Panel process, there is strong support for what is proposed in the Unitary Plan, should full legal effect being accorded at notification. We think there should be a threshold, as to the level of support amongst Aucklanders for what is proposed in the Unitary Plan, introduced into this legislation, and that this threshold must be met before the Plan is given full legal effect. Given the significant changes proposed by the Unitary Pan this threshold of support for the significant Unitary Plan changes which drive the intensification should be above 60%. 3. Following from 2 above, we believe that amendments to the Bill to give the Auckland combined plan (the Unitary plan) greater weight from notification than existing plans, many of which are over 10 years old, should only be given where there is wide-spread support for the Unitary Plan and the threshold has been met. 4. The Bill requires the Hearings Panel to have regard to" the Auckland Plan when making its decision. IF there is a high level of community buy-in to the Auckland Plan we support the words have regard to as they adequately enable the Hearings panel to consider other ideas raised in the hearings process. 5. We note that special circumstances (such as defining the location of the rural urban boundary (RUB) around some rural town centres or the implementation of the national policy statement on freshwater management) are not yet resolved, and are likely to require variations within three years of the plan being notified. We agree that Council could retain the ability to notify variations to address material changes in circumstances or significant information that has become available since notification of the plan, and that the Hearings Panel should also have the power to direct the Council to prepare a variation to address matters raised in submissions or during the hearings process that are more appropriately addressed through a separate Schedule 1 process. We do not support a moratorium on private plan changes to any operative district or regional plans until such time as the Unitary Plan is operative as this may be a useful mechanism to progress desirable developments if disagreements between the Hearings Panel and Auckland Council result in prolonged Environment Court challenges. 6. We submit that the Hearings Panel (and Council) should remain limited in the scope of its recommendations and decisions to the issues raised in the Auckland combined plan (the Unitary plan) and any submissions and further submissions received in respect of that plan. Changes as stated in point 4 above will allow a broader hearing and deliberation. 7. We agree there should be amendments to the proposed new section 32 to clarify that the requirement to quantify, if practicable, the benefits and costs of environmental, economic, social and cultural effects does not result in greater weight being given to those effects that are able to be quantified. Without such clarification, the proposed changes risk upsetting the balance contained in the definition of sustainable management in section 5 of the RMA. Qualitative assessment must be retained also. 8. We see some merit in the requirement in the proposed new section 32AA that a further evaluation report must be prepared for changes to the proposal made since the original section 32 evaluation. Decision reports under clause 10 of the RMA's First Schedule can and do address the costs and benefits of any changes made to proposed plans and plan

51

changes in response to submissions, however the extent of changes can be far greater than from the time of the original evaluation, and for some applicants for plan changes this is a strategic tactic 9. Tree protection rules in district plans The changes to section 76 of the RMA as currently drafted are in our practical experience onerous and unworkable. And will also not enable the Council to deliver on objectives of air quality and reduced carbon emissions. Mere scheduling of trees does little to promote or preserve mature trees especially indigenous trees in any area other than public land and occasional private property. This means the character of some suburbs, especially leafy green ones in Orakei, and the ecology are not sustainably managed. The concept of mitigation measures for re-planting is an inadequate tool to compensate for the proposed s76 amendment or to remedy the unconstrained opportunity to fell large trees in private property because: the incentive to re-plant a large growing specimen will diminish, often the replacement tree will be a smaller growing one or an exotic that gives no indigenous or long term ecological benefit. The cumulative effect of unprotected trees and permissive felling and that sort of perceived mitigation is a gradual erosion of ecology and suburban character. We agree there should be amendments to the proposed new subsections in section 76 of the RMA, to allow for: reinstatement of blanket tree protection in Wards by way of Ward specific by-law processes instigated and determined by Local Boards rather than the Governing Body, and generally for important groups of trees that traverse multiple sites such as significant areas of native vegetation on thousands of private properties in our Ward and across the isthmus to be identified on district plan maps, without also having to specify street addresses or legal descriptions (which would be cumbersome and clutter up district plan schedules).

10.

We believe the chairperson and other members of the Hearings Panel must be appointed jointly by the Ministers, following consultation with the Auckland Council and the Independent Maori Statutory Board. The Hearings Panel should be convened with experts to work collegially to achieve the best recommendations for the Unitary Plan. The practice of parties having reserved panel members appears incompatible with this objective. We support clause 121 and Schedule 1, but in addition to the Assessment of Environmental Effects that is required by Clauses 5 and 6 of Schedule 4, the changes in the new Schedule 4 require, in clause 1(1), that an application for resource consent include the factors stated and a further specific requirement for an assessment of the cumulative effects of the proposal

11.

52

Waitakere Ranges Local Board February27,2013 TheCommitteeClerk LocalGovernmentandEnvironmentCommittee SelectCommitteeOffice ParliamentBuildings WELLINGTON SubmissionontheResourceManagementActReformBill 1. ThissubmissionisbytheWaitakereRangesLocalBoardoftheAucklandCouncil ContactPerson: Email: GregPresland greg.presland@aucklandcouncil.govt.nz 021998411

Phonenumber: 2.

TheBoardwishestoappearbeforetheSelectCommitteepreferablyatAucklandin supportofthissubmission.

RemovalofBlanketTreeProtectionRules 3. TheWaitakereRangesLocalBoardhasaparticularinterestinsection12ofthe ResourceManagementReformBill,whichproposestodoawaywithblankettree protectionrulesfromtheDistrictPlan.Ifenactedsection76oftheActwillbe amendedsothatforatreetobeprotecteditwillhavetobespecificallyidentifiedin ascheduletotheplan.Foragroupoftreestobeprotectedtheywillhavetobe identifiedinascheduletotheplaneitherasbeingonapropertyorbeingonan adjacentproperty.

53

HistoricalContext 4. Thisisthesecondrecentattemptatremovingblankettreeprotectionrulesfrom AucklandsDistrictPlan.Thepreviousattemptwasmadein2009underthe ResourceManagementStreamliningandSimplifyingBill,whichwasenacted.That Billprovidedthattheonlyrulesthatcouldprovideblankettreeprotectionwere thosethatreferredtotreesorgroupsoftreesspecificallyidentifiedinthedistrict plan.Therewasconcernatthetimethatthiscouldmeanthatmanyofthetreesin TitirangiandLaingholmwouldlosetheirprotection. 5. AucklandCouncilsoughtadeclarationfromtheEnvironmentCourttotestwhat effectthelawchangehad.InacomprehensivedecisionreleasedinMay2011Judge JacksonruledthattreesinthemanagednaturalareasofTitirangiandLaingholm constituteagroupoftreesandarethereforeprotected,(seeAttachment2). 6. Section12ofthebillappearstobeadirectattempttonegatetheeffectofJudge Jacksonsdeclaration.TheBoardunderstandsthattherewasnopriordiscussion aboutthisparticularprovisionwithAucklandCouncilandgiventheobvious importanceoftheEnvironmentCourtsdeclarationtotheCouncilthisissurprising anddisappointing. 7. Itisnotedthattheregulatoryimpactstatementforthebilldoesnotspecificallyrefer totheremovalofblankettreeprotection.Itdoesrefertocorrect[ing]drafting omissionsandprovid[ing]clarification.Theproposedchangeshaveconsiderably moreeffectthanthis. 8. Itisimportanttobearinmindcurrentrulesrelatingtotreesintheaffectedareas.In theformerWaitakereCitysDistrictPlanforallareaspruningofnomorethan20%of atreesmassinanarboreallyapprovedmannereachyearisalreadypermitted. TitirangiandLaingholmszoningismostlymanagednaturalareawithsomegeneral naturalarea.Inthemanagednaturalareaallexotictreesunder6metresinheight andallnativetreesunder6metreswithin3metresofadwellingmayberemoved. Inthegeneralnaturalareaalltreesunder6minheightcanberemoved.
54

Detrimentialeffectsofremovalofblankettreeprotection 9. ItisclearthattheeffectoftheproposedchangesontheareasofTitirangiand Laingholmhavenotbeenconsideredbythedraftersofthisbill.Treesareobviously viewedtobenothingmorethanobjectswithaestheticvalue.ButtreesinTitirangi andLaingholmserveanumberofimportantfunctionsthatthebilldoesnot anticipate: a. TreesandbushinTitirangiformpartofanorganicwholeandevenpartial removalcancausedamagetotheforestasawhole. b. Theimportanceoftreestothestabilityoftheareaisnotconsidered. c. Thecontributionoftheforesttoamenityvaluesisnotconsidered. TheproposalisalsoinbreachofthespiritifnottheprovisionsoftheWaitakere RangesHeritageAreaAct2008.Andfinallyitisdifficulttounderstandhowthe proposedprotectivemeasurewouldworkinpractice. Damagetoqualityofforest 10. InrelationtothedamagethatevenpartialclearancecancausetheWaitakere RangestheCouncilReportProtectionoftheWaitakereRangescontainsthe followingpassage: Vegetationclearancecanimpactontheamountoffoodavailabletobirdsandother nativewildlife.Itcanalsoaffecttheremainingvegetationandwildlifehabitatby fragmentingtheareaofvegetation,isolatingwildlifeandreducingtheirhabitat. Fragmentationusuallyincreasesthelengthofbushedges,allowingmorelightand windintothebusharea,andcreatingconditionsthatallowweedstoestablish. Itisclearthatthepiecemealreductioninthequalityofthebushthatwilloccurif thesechangesarepassedwillhaveanadverseeffectontheforest. 11. Theremightbeanargumentthatbushclearancecanstillberegulatedand controlledbytheDistrictPlaneveniftreescannotbutitisdifficulttoseehowthis couldwork.Ifanindividualtreecanbefelledthenwhynotanindividualbush.And whoisgoingtoparticulariseeachpieceofvegetationontheirpropertyinthehope thatthebushcanbeprotected.

55

StabilityConcerns 12. InrelationtostabilityAucklandCouncilsrecordsholdmanyreferencestothe importancethatthebushhasonthestabilityofthearea.ForinstancetheCouncil documentBuildingintheBushcontainsthefollowingpassage: MuchofthelandintheWaitakereRangesisstabilitysensitive.Ageotechnical assessmentisoftenrequiredwhendevelopingabushsite.Youcanfindoutwhether yoursitehasstabilityissuesbygettingaProjectInformationMemorandumreport (PIM)oraLandInformationMemorandumreport(LIM)fromthecouncil. Buildingfoundationswithminimalearthworksarepreferableinthebush,and keepingasmuchvegetationaspossibleonthesitealsoaidsstability. 13. Thereasonsareclear.Treesprovidestabilitytobanksandsteepareasandtheyalso regulateandmoderatetheabsorptionandflowofstormwater.Abankwithout treesorbushwillhavewaterflowingoveritmorequicklyandthebindingtogether ofthegroundwillbeweaker. AmenityValues 14. Inrelationtoamenityvaluesthephrasehasitsownstatutorydefinition.Amenity valuesaredefinedundertheRMAasthosenaturalorphysicalqualitiesand characteristicsofanareathatcontributetopeoplesappreciationofitspleasantness, aestheticcoherence,andculturalandrecreationalattributes.ForTitirangiand Laingholmtreesandthebushclearlycontribute. 15. Section7oftheActstatesthefollowing: InachievingthepurposeofthisAct,allpersonsexercisingfunctionsandpowers underit,inrelationtomanagingtheuse,development,andprotectionofnaturaland physicalresources,shallhaveparticularregardtothemaintenanceand enhancementofamenityvalues. 16. TheDistrictPlansaysthefollowingabouttheeffectofbushclearingonamenityin thebusharea: Anybushclearanceassociatedwiththeestablishmentofdwellingshasthepotential tocontributecumulativelytothefragmentationofvegetation,decreasingthe intactnessofthenaturalcharacterofthelandscapeandbreakingupthecontinuityof
56

indigenousvegetation.Thesehavebeenidentifiedaskeyqualitiesoftheoutstanding landscapevalueconferredontheWaitakereRanges. 17. ItappearsthatifenactedallpersonsexercisingfunctionsandpowersundertheRMA willhavetohaveparticularregardtothemaintenanceandenhancementofamenity valuesexceptasareprovidedbyTitirangistrees.Thisisastrangeoutcomegiven thattreesprovidemoreamenityvaluetotheareathananythingelse. 18. TheRMAallowscommunitiestodesigndistrictplanstoregulateallsortsofissues fromthebanningofnuclearpowerstationstotheprovisionofroadsandhousesand shops,fromthecontrolofstormwaterrunofftothecontrolofanyactivitythathas aneffectontheenvironment.Exceptifthisamendmentispassedfortheprotection ofTitirangistrees. WaitakereRangesHeritageAreaAct2008 19. TitirangiandLaingholmarepartoftheareacoveredbytheWaitakereRanges HeritageAreaAct2008.ThatAct,whichstartedoffasalocalBill,isastatementby Waitakeresinhabitantsthattheirareaisaspecialareawhichneedstobeprotected. 20. TheheritagefeaturesasdefinedintheActincludelargecontinuousareasof primaryandregeneratinglowlandandcoastalrainforest1.Theseecosystemsare recognisedtohaveintrinsicvalue,provideadiversityofhabitatsforindigenousflora andfauna,andhavenaturalscenicbeauty2.TheActalsotalksaboutthe subservienceofthebuiltenvironmenttotheareasnaturalandrurallandscapeand thedistinctiveharmony,pleasantnessandcoherenceofthelowdensityresidential andurbanareasthatarelocatedinregenerating(andincreasinglydominant)forest settings3. 21. Theobjectivesofestablishingtheheritageareaaresaidtobetoprotect,restore andenhancetheareaanditsheritagefeatures4andwhenconsideringdecisions thatthreatenseriousorirreversibledamagetoaheritagefeaturetocarefully considertherisksanduncertaintieswithanyparticularcourseofaction,andtake

Section 7(2)(a)(i) WRHAA Section 7(2)(a) WRHAA 3 Section 7(2)(i) WRHAA 4 Section 8(a) WRHAA
1 2

57

intoaccountthebestinformationavailableandtoendeavortoprotecttheheritage feature5.Itisclearthatthisapproachhasnotbeentakenintoaccountwhen consideringtheproposalasitrelatestoTitirangiandLaingholm. 22. Undersection11(3)oftheWRHAAwhenAucklandCouncilisevaluatingaproposed planchangefortheHeritageAreaitisobligedtoexaminewhethertheproposed changeisthemostappropriatewaytoachievetheobjectives.OfcourseParliament hasthepowertooverruletheprovisionsoftheWRHAAbutitshouldberespectfulof LocalActsandonlydosoifitconsidersthattheexistingprovisionsaretotally inappropriate. Inappropriatenessofproposedprotectivemeasure 23. Thedraftbillproposesthatprotectiononlybeaffordedbythenotingoftreesor groupsoftreesintheDistrictPlan.Aucklandhasrecentlyengagedinaplanchange toaddinanumberoftreesintotheDistrictPlan.Thisprocesswasstarted immediatelyafterthepassingoftheResourceManagementStreamliningand SimplifyingBill.TheprocessisknownasPlanchange41. 24. Thedecisionofcommissionershasrecentlybeenreleased(seeAttachment3).The boardbelievesthatthedecisionandtheprocessusedhighlightshowinappropriateit istousethisasameansofprovidingtreeprotection. 25. Thehearingfortheplanchangetookplaceover4days,94submissionswere receivedandevidencefrom26submitterswasheard.Treeswerenotaddedtothe scheduleunlesstherewasarboriculturaladviceprovided. 26. Theproposedplanchangewastoadd240treesorgroupsoftreestotheheritage vegetationindexoftheDistrictPlan.Thecommissionersdecidedthat188ofthese treesshouldbesoprotected. 27. InTitirangialonethereareabout1,500residentialsectionsandataveryrough estimatetherewouldbe100treesoneachsection.Toprotecteachtreewould require150,000arborealinvestigationsandonaproratabasis3,000hearingdaysby commissionerstoconsidereachrequest.

Section 8(c) WRHAA

58

28.

AcursoryreadofthejudgmentindicatesthattheCommissionerswereonly interestedintheamenityvalueofeachtreeandtheeffectonstabilitywasnota matterthatwasconsidered.

29.

TheBoardbelievesthattheproposedprotectionsystemfortreesishopelesslyunfit forpurpose.

LocalSupport 30. OnFebruary21,2013atameetingattendedbyabout80peopleorganisedbythe TitirangiResidentsandRatepayersAssociationaunanimousresolutionwaspassed asfollows: ThattheTRRAresolvestoapproachAucklandCouncilregardingdraftingaLocalBill tosecureblanketprotectionfortreesintheWaitakereRangesHeritageArea. 31. Asatthedateofthefinalisingofthissubmission318peoplehavesignedanonline petitionurgingtheGovernmenttoretainblankettreeprotectioninTitirangiand Laingholm(seeAttachment4). Conclusion 32. Theboardrecommendsthateitherthechangesarenotproceededwithor alternativelythattheWaitakereRangesHeritageareaasdefinedintheWaitakere RangesHeritageAreaAct2008beexemptedfromtheeffectsofthebill. SupplementaryInformation: 1. Mapofarea 2. JudgeJacksonsdecision 3. DecisionofCommissionersinPlanChange41 4. Listofonlinesignatoriestopetition

59