BEFORE THE ENVIRONMENT COURT I MUA I TE KOOTI TAIAO 0 AOTEAROA

IN THE MATTER

AND

BETWEEN

AND

Decision No. [2017] NZEnvC 200

of the Resource Management Act 1991

of an application for a declaration pursuant to s 311 (1) of the Act

MORNINGSTAR DEVELOPMENT LIMITED

(ENV-2017-AKL-152)

Applicant

AUCKLAND COUNCIL

Respondent

Court: Environment Judge JA Smith Environment Commissioner ACE Leijnen

Hearing: At Auckland on 12 December 2017

Appearances: CDH Malone for Morningstar Development Limited (Morningstar) AJ Cumming for Auckland Council (the Council)

Date of Decision: 12 December 2017

Date of Issue: 13 December 2017

ORAL DECISION OF THE ENVIRONMENT COURT1

A: The Court makes the following declaration: Condition 16 and the Bond lawfully

remains in place until the new vegetation planting is certified as being fully

established and sustainable in accordance with the balance of condition 16.

B: The Bond is properly retained by the Council and may be expended on undertaking

the works (under s 109 if necessary). This includes the establishment and

maintenance of the new planting required until A above is met. This work does not

1 Subject to amendments for additions and amendments to improve clarity by consent of the parties.

Morningstar Development Limited

2

include the maintenance of existing indigenous vegetation that may have been

removed by another owner subsequent to the Bond being taken.

C: Any application for costs are to be filed by 25 January 2018; any reply by

9 February 2018, and a final reply, if any, by 16 February 2018. The parties are

encouraged to see if they can resolve costs issues as between themselves.

REASONS

Introduction

[1] Morningstar Development Limited (Morningstar) has applied for a declaration

under s 311 (1) of the Act as follows:

The Auckland Council ("Council") had no power under the conditions of resource consents

40735,42196 and 42234 to require planting maintenance bonds prior to the issue of section

224(c) certificates for the subdivision. Therefore, the taking of the planting maintenance

bonds was an act by the Council that contravened the conditions of resource consents

40735,42196 and 42234.

Background

[2] Three subdivision consents were granted by Auckland Council (40735, 42196

and 42234), providing for a total of 18 lots on land that had existing indigenous

vegetation. One of those consents (40735) is annexed hereto and marked A for

reference purposes for this declaration. The consents include conditions for:

(a) planting to be "established and sustainable" on identified lots and further

protection; and

(b) the maintenance of existing vegetation.

[3] The planting condition is covered by conditions 11, 15 and 16 of 40735, conditions

17 and 18 of 42196 and conditions 4, 13 and 14 of 42234. The relevant conditions in

each consent are similar to conditions 11, 15 and 16 in A. The conditions are supported

by requiring a Bond in certain circumstances.

[4] A Bond requirement in respect of the planting of new areas was paid by

Morningstar in relation to both the planting and subsequently for maintenance. The

ongoing protection and maintenance of existing indigenous vegetation included that

3

which was newly established under condition 41. That condition is protected by a

consent notice on each lot title.

The issue for this Court

[5] The question is whether newly established planting means:

(a) "just after planting"; or

(b) when the area is certified by a suitably qualified arborist as being "fully

established and sustainable" to the satisfaction of the Council team leader

Compliance and Monitoring (South), as noted at the end of condition 16.

Areas of common ground

[6] It was agreed that no planting plan was prepared by Morningstar, nor any planting

undertaken in accordance with conditions 11, 15 and 16 (or the other similar conditions).

Morningstar also subsequently sought a section 224(c) certificate, even though they had

not undertaken any steps to comply with those conditions. Subsequently, Morningstar

through their director, Mr Morgenstern and his wife, signed Bonds, including those for the

maintenance under conditions 16 and their equivalents under the other consents. For

current purposes, we attach the Bond relating to consent 40735 as exhibit B.

[7] Two of the Bonds, being the later ones for consents 42196 and 42234, are

headed "Maintenance of Covenanted Planting Areas". That annexed as B was for the

"Maintenance". However, Schedule 3 of B is a direct reference to condition 16 in consent

40735 (A). The Bond was for the provision, performance and completion of condition 16

(under B) and the equivalent conditions in the other two consents.

[8] Mr Morgenstern says that he signed the Bond to get the s 224(c) so he could

settle sales. He asserts that he disputed the lawfulness of the Bond for maintenance with

Council staff. He accepts that the Bonds were taken and forfeited for the planting, which

he does not dispute. However, he asserts that the Bonds taken under the "maintenance

conditions" are unlawful.

Interpretation

[9] Conditions 11, 15 and 16 are clearly related to the establishment of new areas of

4

indigenous vegetation. The condition can be satisfied in two ways:

(a) by performance, including three years of maintenance (see clause 16,

paragraph 1); or

(b) by the payment of a bond (prior to s 224(c) certificate) that remains in place

until certification (as discussed already) that the area is "fully established and

sustainable" .

[10] There is no dispute the Council has the powers under s 10BA and s 109 to take

a bond for any condition in a consent.

[11] There is no dispute that conditions for maintenance of areas to be "fully

established and sustainable" could be imposed.

[12] Morningstar has suggested a condition requiring the developer to maintain

indigenous vegetation after the sale of the land is unreasonable. We consider that this

cannot be correct for the following reasons:

• The Act has a single purpose, that is the sustainable management of natural and

physical resources. In this case, that is in relation to indigenous vegetation and

its protection as set out in the conditions of consent. We note that the application

required a consent, which we understand was non-complying, or at least fully

discretionary. This would indicate that the question of indigenous vegetation, and

its protection if the land was subdivided, was of significance. This is reflected in

the consent;

• Morningstar was not only the developer but the landowner over the relevant land

as a whole, and over the individual lots at the time of the s 224(c) certificate and

the issue of the titles. The Bonds were therefore executed by both the land owner

and the consent holder;

• Morningstar clearly recognised that obligation when it took title to the land, and

that is supported by the fact that the directors executed the Bond. That is a legal

document, the meaning of which would have been clear to the directors when

they signed it. There is no question in this case that they were under any

compulsion or disability at the time. That has not been raised in any of the

affidavits;

5

• Morningstar had, at all times as the landholder and owner, the power to seek to

recover monies from subsequent owners or place covenants for access to the

land under the titles. Whether or not Morningstar did do that we do not know

because no agreements for sale and purchase were produced. More importantly,

it cannot be unreasonable to expect the landowner to seek to protect themselves

in that way, and we agree with Mr Cummings that it is not for the Council to inquire

as to whether that has occurred.

[13] For the foregoing reasons, we conclude the interpretation of the various

conditions in question is clear. They enabled the Council to take a bond until the newly

established planting was certified as fully established and sustainable. No planting has

occurred and no certification has occurred to date.

[14] The Council has remedies available to it, including powers under s 109 to register

the Bond, enter upon the land, and expend the Bond monies in undertaking the works.

Mr Cummings accepted that the purpose of the Bond is in respect of new planting areas,

and not to replace existing significant indigenous vegetation that may have been removed

by subsequent owners. Nevertheless, we are satisfied that the Bond is clear in its

purpose and the conditions of consent authorise the Council's action, both in taking the

Bond and the Council's remedial action.

Outcome

[15] For the reasons we have explained, we conclude that the Bond covers the

establishment of new vegetation until such time as it is certified as being fully established

and sustainable in accordance with the condition. We accept that, in this case, this will

require extensive new planting and lJlaintenance for a period before it can be certified.

There is no set period prior to certification set out in the Bond condition. We also accept

that s 109 allows that the Bond can be used for the purposes of achieving the condition,

and that the Council has powers to register the Bond, enter on the land and undertake

the works.

[16] Council accept that the Bond does not cover replacement of existing vegetation

by new owners after the bond was taken. That is covered by condition 41 and is

supported by a consent notice against the property title.

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Should we make a declaration?

[17] Section 313 requires the Court to consider whether it should:

(a) make a declaration either as sought or with modification;

(b) make another declaration; or

(c) refuse to make a declaration.

[18] Given the conclusions we have reached, there is no basis upon which we can

make the declaration sought, nor can we see any modification that would achieve the

outcome sought by the Applicant.

[19] The Court has the power to make another declaration, and we discussed with

Mr Cummings whether or not a positive declaration as to the meaning of the condition

would serve any purpose. We note that Mr Chieng, the Council's enforcement officer,

has indicated that the condition is relatively common. It appears to follow a form that

came into common use after 2003 when s 108A was added.

[20] Prior to that the condition had often required each subsequent owner to execute

a bond. The current form of condition assumes that the bond is enforceable due to a

combination of both s 1 08A and s 109. We are not aware that there have been any direct

decisions on the point. Accordingly, we accept that there could be some usefulness in

identifying the clarity of these conditions to avoid future arguments as to the distinction

between the old conditions, such as those mentioned in Fisherton Limited & Anzani Pakiri

Limited v Rodney District Council. 2

[21] We have concluded that clarity is preferable in this case, and that we should make

a declaration as follows:

Condition 16 and the Bond lawfully remains in place until the new vegetation

planting is certified as being fully established and sustainable in accordance

with the balance of condition 16.

Decision No. A221/2003, Newhook EJ

7

[22] We conclude that:

Costs

The Bond is properly retained by the Council and may be expended on undertaking

the works (under s 109 if necessary). This includes the establishment and

maintenance of the new planting required until A above is met. This work does not

include the maintenance of existing indigenous vegetation that may have been

removed by another owner subsequent to the Bond being taken.

[23] Any application for costs are to be filed by 25 January 2018; any reply by 9

February 2018, and a final reply, if any, by 16 February 2018. The parties are

encouraged to see if they can resolve costs issues as between themselves.

For the court:

This. is the Exhibit marked "1" referred to In the affidavit of Arthur Sylvan Morgenstern sworn at Auckland this Z.,~ day of ~C::::r~_ 2017 before me:

Signature ... ~ ...... " ..... ~ ........... , ........... , ... ,. A SoliCitor/Barrister of the High Court of New Zealand (Solicitor to sign in part on Exhibit)

NON·COMPLYING ACTIVITY RESOURCE CONSENT APPLICATIOlli UNDER THE RESOURCE MANAGEMENT ACT 1991

DECISION

SlIz.beth Heaney S.nlor Solicitor Auckland

A

An application (reference 40735) has been made by Arthur Morgenstern to undertake a 5 lot subdivision in two stages, and Involving two areas to be vest as road, at 181 Point View Drive,' East Tamakl. and zoned Rural 3, Rural 4 and SensHive Ridge zone, being a non-complying activity subdivision resource consent application. This requires resource consent for the following reasons:

Operative District Plan (Auckland Council District Plan (Manukau SacUon».

19 The application is a non-complylng activity for subdivision of land under Rule 12.10.3 for subdivision creating lots Involving land within the Rural 4 zone which has a Certificate of Title/Computer Freehold Register issued after the 16t August 1995.

Reasons for Decision

Pursuant to sections 104,1046, 104D, 106, 108, 108A and 220 of the Resource Management Act 1991, this non-complylng activity application is granted for the following reasons:

a) This application merlls consent pursuant to sections 104. 1048, 104D, 106, 108.10BA and 220 of the RMA.

b) The proposal is not considered to be contrary to the relevant objectives and policies of the Auckland Council District Plan (Manukau Section), in particular Chapter 12 - Rural Areas and hence meets the requirement for the granting of a consent for a non-complying activity In terms of &1 04D of the RMA.

c) While the subdivision is a non-complying activity as a result of the age of the Computer Freehold Register, the design, layout and intensity of the proposal meets willi the relevant rules In relation to lot sizes, provision of building platforms, appropriate wastewater and stormwater disposal systems. and protection of bush and riparian areas, and proviSion of additional planting.

d) Safe and efficient vehicle access can be achieved, albeit that it is likely to require some bridging to ensure relevant levels at the entry !exit point for .visibllity reasons.

e) Geotechnical evidence suggests that any inherent ground Instability can be overcome and a stable building platform can be provided on every lot. Suitable conditions In respect of site Investigation, deSign, supervision, construction, and completion of works have been impDSed to ensure that any adverse effects can be adequately avoided, remedied or mitigated.

Conditions

Pursuant to section 108, 108A and 220 of the Resource Management Act 1991, this consent is granted subject to the fO/lowing conditions:

General Conditions - AppUcable to Both stages

Activity In accordance with plans

Report prepared by Terra Consultants, entitled 'Application for Subdivision Consent under the Resource Management Act 1991 -181 Point View Drive, East Tamaki, Auckland - Applicant Arthur Morgenstern', dated July 2012, including a written report and appendices, including: • Terra Consultants 'Context Plan' dated 11.06.2012, referenced Drawing Number RC102 Rev.

A; • Land Information New Zealand 'Title Plan - DP 442487' Generated on the 26.04.2012 (Copy

of the current Computer Freehold Register for the lot was arranged by the Council); • Coffey Geotechnics (NZ) Limited, letter dated 12th July 2012, with attached 'Statement of

Evidence' of Shane Gareth lander dated 29th May 2008, and Drawing Plan set (Rev A). • Foundation Engineering's report entitled 'Geotechnical Investigation Report on Proposed

Residential Subdivision at Masons Road, East Tamaki Heights for Regis Holdings limited', Project No. 12151, dated 1st August 2005.

• Kingett Mitchell Limited report dated July 2005, entitled 'Stage 1, Preliminary Environmental Assessment at 30 Masons Road, tast Tamaki'.

• Terra Consultants 'Scheme Plan dated 21.09.2012, referenced Drawing Number RC1 00 Rev B:

• Terra Consultants 'Geotechnical Zone Plan' dated 13.06.2012, referenced Drawing Number RC101 Rev. A. .

• Terra Consultants 'Slope Identification Plan' dated 20.06.2012, referenced Drawing Number RC103 Rev. A.

" Terra Consultants 'Vegetation Protection and Planting Plan', dated 11.06.2012, referen~ed Drawing Number RC104 Rev. A.

" Terra ConSUltants 'On-site Stormwater and Wastewater layout (indicative)' dated 13.06.2012, referenced Drawing Number RC200 Rev. A.

II Terra Consultants Water/Detention Tanks with Oriface Details' dated 13.06.2012, referenced Drawing Number RC201 Rev. A

• Terra Consultants 'Stormwater Outlet Spreader Details' dated 13.06.2012, referenced Drawing Number RC202 Rev. A. .

II Terra ConSUltants 'Scheme Plan' dated 12.10.2012, referenced Drawing Number S100A Rev A (showIng staging of the subdIvIsIon). -

And all numbered Resource Consent No. 40735 by the Council, with approved plans referenced sheets 1 to 7, and as subject to the following consent conditions.

Building Platfonns

2. All 'buildIng platforms' referred to In this consent are those Identified as 'Proposed Building Platfonn' on Terra Consultants 'Scheme Plan' referenced S100A Rev A, referenced Resource Consent No. 40735, Sheet 2 of 7 by the Council.

Commencement of consent

3. ThIs consent (or any part thereof) shall not commence until such time as the following charges, which are owing at the time the council's decision is notified, have been paid In full: .

a) All fixed charges relating to the receIving, processing and granting of this resource consent under sectIon 36(1) of the Resource Management Act 1991 (RMA); and

b) All additional charges imposed under section 36(3) of the RMA to enable the council to recover its actual and reasonable costs In respect of this application, which are beyond challenge.

4. The consent holder shall pay any subsequent further charges imposed under section 36 of the RMA relating to the receiving, processing and granting of this resource consent within 20 days of receipt of notification of a requirement to pay the same, provided that, in the case of any additional charges under section 36(3) of the RMA that are subject to challenge, the consent holder ·shall pay such amount as is determined by that process to be due and owing, within 20 days of receipt of the relevant decIsion.

Paga2

17

STAGE 1 being subdivision of Lot 1000 DP 442487 being proposed Lots 3, 4 and 5 and balance land {proposed Lot 100 - combined Stage 2 proposed lots 1 and 2}, and vesting of road (45m2 and 21 mZl.

Plans

5. The balance land (shown as Lots 1 and 2 on the proposed scheme plan) shall be shown as Lot 100 of the Land Transfer Plan.

6. The two portions of the land to vest In Council as mad (45m2 and 21 m2) at no cost to CouncIl shall be

shown as Lots 101 and 102 on the Land Transfer Plan.

Predevelopment conditions .

Pre-start Meeting

7. A 'pre-start' meeting shall be arranged and held not less than 48 hours prior to commencement of any works on the site.

Not~: Please contact Council's administration team on te/ephone number 301 0101 extension (41) 81 BB or by email to rca@auck/andcouncfl.govt.nz to arrange this meeting.

8. The pre-start meeting shall not be scheduled, and no works shall be undertaken In respect to this development before the following requirements have been complied with to the Council's satisfaction;

(a) A geotechnIcal report (prepared wIth dIrect reference to the Foundation Engineering Ltd report project No. 12151 dated 1 August 2005 and any other relevant document) shall be prepared to the satisfaotion of council detailing the specifio works to be undertaken to stabilise each of the nominated building platforms for proposed Lots 3, 4, 6, and one on balance land Lot 100. The report shall ensure that the proposed stability works achieve a factor of safety for all the building platforms greater than 1.5 under moderately conservative conditions and not less than 1.2 under any conditions. The report shall also consider the vehicle crossings to each lot, with consideration to the need or otherwise for stormwater control for water off the road such as localised kerb and channelling.

The above report shall be peer reviewed by a Councll appoInted peer reviewer, and revised If necessary to the satisfaction of Council's Team Leader Compliance and Monitoring (South), and a written approval provided by Council. All costs associated with Council's peer review process shall be borne by the consent holder.

Note: The requirement to establish one building platform on balanos Jen'd Lot 100 is tD make an Independent provIsion In the event that Stage 2 does not proceed.

(b) The consent holder shall obtaIn a Buffding Consent for all required retaining sfructures~ including the palisade walls and stabilitY enhancing drainage measures required to stabilise each nominated building platform.

The consent holder shall provIde CouncIl's Team Leader Compliance and Monitoring (South) with copies of completed Producer Statements (PS2 Design Review) for each Individual retaining structure 10 demonstrate such designs have undergone an appropriate structural check and will comply with the Building Act 2004 and the Building RegUlations 1992 (Including the Building Code),

(e) The consent holder shall enter into and maintain a Construction Monitoring Service agreement with a suitably qualified geotechnical expert who is familiar with the contents of all relevant geotechnlcal reports and engineering Information relevant to this application for the duration of the construction project. This Construction Monitoring Service agreement shall be for Construction Monitoring Services to a Jevel OM5 as defined by IPENZ (IPENZ Endorsed InformatIon - Table 1) and shall extend to all engineering works required as a condition of this consent. A copy of the Construction Monitoring Service agreement required by this condition shan be provided to the Council's Team Leader Compliance and Monitoring (South) once entered into and prior to any work. commencing.

tlon No: 40735 Pag83

18

This expert shall be responsible for providing certification that a stable building platform has been achieved at the completion of the construction on each of the allotments (Lots 3, 4, 5 and one on balance land Lot 100) so created. Each building platform shall have a demonstrated factor of safety greater than 1.5 under moderately conservative conditions and not less than 1.2 under any conditions. '

Note: If any constraint is placed on this expert which might restrict the ability of the expert to provide such a certificate, then the expert has the responsibility of requesting a stoppage of the work and must immediately advise Council of the constraInt.

(d) Vehicle crossing designs for the works on the road to provide access to the proposed building platform on each proposed lot (lots 3, 4, 5, and balance land Lot 100) shall be submitted to the Council for approval. It is noted that this may include some bridging, specific stabilisation and storrnwater control measures.

9. Prior to the arrangement of the pre-start meeting the consent holder shall submit a Construction Management Plan for the approval and to the satisfaction of Councirs Team Leader Compliance and Monitoring (SOl,lth). The approved plan shall be Implemented thereafter as approved (subject to any subsequent amendments which the Council may, at its discretion, approve In writing from time to time). The Construction Management Plan shall address the appropriate sequence of construction for all stabilisation measures and land modification work to ensure the short and long term stability of the site and surrQunding land is ma!Qtalned.

10. At the pre-start meeting required by condition 7, all protected trees (including groups of trees) in the vicinity of works shall be clearly identified and measures to be taken to protect and avoid these trees during the construction phase shall be detailed, and relevant measures put in place prior to commencement of works on the site. These protection measures shall include no less than those set out in condition 13 below.

For the purposes of this consent the term 'protected treels' includes trees standing over 6m in height and of a speCies or subspecies as listed in Schedule 6C of the Auckland Council District Plan (Manukau Section) 2002. '

Planting Plan

11. A detailed Planting Plan (including plant schedule, implementation programme and malntenanoe programme) for the required planting works on Lots 3, 4 and 5 (shown as areas Band C on 'Vegetation Protection and Planting Plan' referenced Resource Consent No. 40735, Sheet 3 of 7 by Council) shall be submitted and approved to the satisfaction of the, Council's Team Leader Compliance and Monitoring (South) before any work commencing on the site.

The Planting Plan shall show planting of appropriate native species for their location and soil conditions and with planting to a density of not less than 5,000 stems per hectare (or as otherwise approved).

Bond

12. Prior to commencement of construction works for the subdivision the consent holder shall enter into a bond with the Council with a security value of $150.000 in accordance with section 108A of the Resource Management Act 1991 to secure compliance with conditions of this consent.

The bond shall be released upon the release of the 5224(0) certificate for the subdivision.

The bond will be prepared by the Council's Legal Team at the consent holder's cost The bond shall be prepared and executed, gUaranteed by a New Zealand trading bank and registered on the Computer Freehold Register (Certificate of Title) for the land.

Application No: 40735 Page 4

19

Development in Progress

Protected Trees

13. (a)

(b)

No works shall occur, including no Installation of any seN Ices, within the drlpline of any protected tree (including groups of trees) on the site. This shall Involve: - no storage of materials or goods within the dripline of any protected tree; w no· discharge of liquids (including concrete wash) within the dripline of any protected tree. w No movement of vehicles or heavy machinery within the drlpl/ne of any protected tree.

Any protected tree located in the vicinity of works shall be temporarily fenced off around its dripline, asing steel warratahs or similar appropriate for the site conditions, and established and maintained for the full duration of the construction phase.

Native Bush I Planting

14. A stock proof 7 wire fence (or equivalent) shall be constructed and maintained around the boundary of the existing and proposed bush I vegetation areas on Lots 3, 4 and 5 as indicated on the 'Vegetation Protection and Planting Plan' referenced Resource Gonsent No. 40735, Sheet 3 of 7, and shown as areas A, B, G and 0 on that plan.

15. All planting as detailed on the Planting Plan approved under condition 11 shall be undertaken (prepared and revegetated) and Inaintained in accordance with the approved Planting Plan. Experienced planting contractors under the supervision of a suitably quallfled professional shall carry out 1he planting required as a part of the approved Planting Plan. The preparation and planting shall be undertaken to the satisfaction of the Council's Team Leader Compliance and Monitoring (South) prior to the Council's Section 224 release of the subdivision.

16. The ownerls of Lots 3,4 and 5 shall continue to maintain all plantings, including replacement planting as necessary for a period of not (ess than three years In accordance Planting Plan approved under condition 11.

At the time of release of the subdivision, any outstanding implementation works relating to the planting and re--vegetation programme may also be satisfied by the provision of a bond, determined by the Council and provided the Council is setisiled that sufficIent progress has been made with the implementing the planting and re-vegetation programme.

Where a bond applies, the bond shan remain in plaoo until such time as the entire planting and re­vegetation area within Lots 3, 4 and 5 has been certified by a suitably qualified arborist as being "fully established and sustainable" to the satisfaction of the Council's Team Leader Compliance and MonitorIng (South).

ContaminatIon

17. If evidence of contamination which has net been previously Identified Is discovered durIng earthworks, the consent holder shall Immediately cease the works and notify the Licensing and Compliance Team - South, Auckland Council, and provide a site contamination report to the satisfaction of the Team Leader Licensing and Compliance South, Auckland Council. Any contamination that is discovered shall be investigated, remediated, disposed of and reported on (including validation) in accordance with the current Ministry for the Environment Contaminated Land Management Guidelines and the relevant guidelines addressing contaminants from specific industries or activlt/es.

18. Any soli being removed from the site shall be disposed of In an appropriate landfill and provide the landfill receipts to Council on completion of the earthworks. If any contamination is found, the consent holder shall ensure that any excavated sDii removed from the site are tested to determine appropriate disposal, and provide landfill receipts and all contaminated fills must be disposed of in a landfill licensed I consented to accept contaminated material an provide evidence of the disposal to the Team Leader Licensing and Compliance -South, Auckland Council.

tion No: 40735 Page 5

20

Works ~ General

19. The land stabilising works for Stage 1, being Lots 3,4,5 and one building platform on balance land Lot 100, shall be undertaken in a manner which does not undermine the stability of the slte or the adjoining road reserve. In this regard the consent holder shall employ a suitably qualified geotechnical engineer to investigate, direct and supervise all construction works to ensure that the appropriate design and construction methodology is carried out to maintain the short and long term stability of the site and surrounds.

20. Construction works for the site shall be limited to 7:00 am to 6:00 pm Monday to Saturday. No earthworks, civil works or external building works shall occur on Sundays or Public Holidays throughout the duration of the development works for the subdivisIon.

21. Any noise from constructIon work (as defined in Chapter 18 of the Auckland Council District Plan (Manukau Section) emanating from the site shall comply with the requirements of Rule 5.18.3.6 of the Auckland Council District Plan (Manukau Section).

22. There shall be no damage to public roads, drains, reserves or other public asset as a result of the works approved under this consent. In the event that such damage does occur, the Council's Team Leader Compliance and Monitoring (South) must be notified within 24 hours of its discovery. The casts of rectifying such damage and restoring the asset to its origInal condition will be met by the consent holder.

23. All construction work required by conditions of this consent shall be supervised and certified by a suitably qualified engineering representative appOinted by the owner (refer also condition 8(c»

24. Alii any retaining walls shall be located wholly within private land and not on legal road.

Roadlng

25. Vehicle crossings to the approved design (refer condition 8(d» shall be constructed to the proposed buildIng platform on each proposed lot (Lots 3, 4, and 5 and one for Lot 100).

26. Satisfactory public vehicle and pedestrian access shall be maintained at all times when undertaking works within the road reserve. Furthermore, all necessary precautions shall be taken to protect the public from all hazards associated with the construction works.

Stabilisation Works

27. Prior to the commencement of stabUlsation and earthworks activity on the subject site, erosion and sediment control measures shall be put in place that comply with the requirements of the Auckland Council Technical Publication 90 - TP90 Erosion and Sediment Control.

28. The proposed building sites on each proposed lot shall be stabilised so that there is a factor of safety greater than 1.5 under moderately conservative conditions and not less than 1.2 under any conditions.

29. All earthworks shall be managed to ensure that no debris, soil. silt, sediment or sediment-laden water is discharged from the subject site either to land, stormwater drain~ge systems, watercourses or receiving waters. In the event that a discharge occurs, works shall cease Immediately and the discharge shall be mitigated andlor rectified to the satisfaction of the Council's Team leader Compliance and MonitorIng (South). .

30. . No earth, clay or other debris shall be deposited on any public road as a result of the development actiVIty on the subject site. In the event that such deposition does occur, it shall immediately be removed. In no Instance shalt roads be washed down with water without appropriate erosion and sediment control measures In place to prevent contaminatIon of the stormwater drainage system, watercourses or receiving waters. .

31. There shall be no airborne or deposited dust beyond the subject site as a result of the earthworks activity that In the opinion of the Council's Team Leader Compliance and Monitoring (South) is noxious, offensive or objectionable.

Page 6

21

32. Unobstructed access shall be maintained at all times to private properties during the execution of the works authorised by this consent. All materials and equIpment shall be stored withIn the subJeot site's boundaries unless specifically agreed by the Council.

33. Where the earthworks result in archaeologIcal features being uncovered, all works on the subject site shall cease unless in the opinion of the Council's Team Leader Compliance and Monitoring (South) the works can continue subject to restrictions on works within a 10 metre radius of the archaeological find. A suitable temporary barrier and signage restricting access shall be ~rected immediately, and the New Zealand Historic Places Trust shall be contacted Immediately so that appropriate action can be taken.

Utility Services

34. Power and telephone services shall be Installed underground within the road berm to provide suitable located service connectlons to all proposed lots (Lots 3, 4, and 5, and one connection for balance land Lot 100).

The consent holder shall supply completion certificates from the utility service providers and certified "as builr plans giving locations of all plinths, cables and ducts.

Suitable easements or road boundarY alignments set back from the projected road boundaries shall be provided as necessary for any above-ground electrical transformer, or telephone switching facilities that will be required to service the subdivIsion.

Post Development Conditions

35. On completion of the works requIred by conditions of thIs consent for Stage 1, "as-builr plans and applicable completion certificates, in accordance with the Auckland Council's (Manukau) Quality Assurance Manual, shall be forwarded to Council's Team Leader Compliance and Monitoring (South).

36. The consent holder shall provide Council's Team Leader Compliance and Monitoring (South) with copies of completed Producer Statements (PS4 Construction Review) in respect of each IndivIdual retainIng structure prior to application for 224(0) release to demonstrate all such structures have been constructed In accordance with the Building Act 2004 and the Building Regulations 1992 (includIng the Building Code).

37. A geotechnical completion report shall be submitted to the Council's Team Leader Compliance and Monitoring (South) after completion of the stabilising works that:

(i) Determines the suitability of the completed works and confirms that that there Is a factor of safety greater than 1.5 under moderately conservative conditions and not less than 1.2 under any conditions for all the proposed nominated building sites. It shall also confirm the stability of the access to the building platforms and the Immediately adjoining public road.

(ii) Includes advice of any ongoing maintenance requirements that might be requIred by the owner to maintain the continued stability of the site and surrounds.

38. The follo\'lling requIrements for Lots 3, 4, 5 and balance land Lot 100 shall be complied with on a continuIng basis;

(a) All pertinent matters raised in the geotechnical completion report that Council's Team Leader Compliance and Monitoring (South) considers should be noted.

(b) The owner(s) of proposed Lots 3, 4, 5 and balance land Lot 100 shall locate any household unit and any accessory building(s) wIthin the completed building platform.

The exact location of the building platform within each lot shall be fixed by survey and dimensIoned on a copy of the survey plan to be attached to the consent notice for this condition.

No: 40735 Page 7

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(c) All private stormwater disposal from each building site (including overflows from water tanks) shall be design~d by a suitably experienced engineer and submitted for approval at the time of the Building Consent application. The works shall be undertaken in general accordance with the approved engineering drawings referenced sheets 4, 5 and 6, Resource Consent No: 40135, by Council. .

((his generally requires stormwster to be detained and discharged in a dispersed manner near the invert of an approprIate gully)

Compliance with these requirements shall be on a continuing basis and shall be registered as a Consent notice In accordance with Section 221 of the Resource Management Act 1991 on the Computer Freehold Register of Lots 3, 4, 5 and balance land Lot 100 at no cost to the Council. The consent notice shall be prepared by the Council's legal jearn at the consent holder's cost.

39. A comprehensive wastewater disposal system shall be designed by a suitably experienced engineer and submitted for approval at the time of application for a Building Consent application in accordance with the supplementary letter by Coffey Geotechnics dated 12 November 2008, and the following:

(i) Wastewater flow to ground disposal shall not exceed 1,620 litres per day and shall comply with the Auckland Regional Council's proposed Air Land Water Plan (2004), permitted activity Rule 5.5.20.

(il) The Installation of the on-site wastewater treatment and land disposal system shall be supervised and certified by an Engineer or consultant appropriately experienced in on-site wastewater systems. The installation shall comply with Auckland Regional Council Technical Publication 58 (2004). The Engineers certification and as-built plans shall be forwarded to the Council's Team Leader Compliance and Monitoring (South). The 'as-built' plan shall indicate setbacks from site features including property boundaries. buildings, retaining walls, and surface water. The 'as-built' plan shall also include the location of all components of the wastewater treatment and land disposal system. such as, the disc filter, all valves and terminal end flush points associated with the disposal field.

(iii) The proposed on-site wastewater treatment system shall be capable of treating effluent to secondary standard and include 24 hours emergency storage capacity in pump chambers or within the system and above the high water level alarm float switch. The alarm shall comprise an audible and visual alarm to operate in the event of a pump failure. The audible and visual alarm shall be located in a prominent pOSition on the treatment plant or the dwell1ng. .

(iv) The primary land disposal area shall be intensely planted with water tolerant high evapotranspiration vegetation suitable for on-site wastewater land disposal areas. .

(v) A reserve effluent disposal area equivalent to 50% of the primary disposal area shall be provided. The reserve area location shall be detailed on the 'as-built' plans in (ii) above.

(vi) Stormwater diversion drains shall be provided, as necessary, upslope of the effluent disposal field to redirect any overland stormwater flow away from the effluent disposal field.

(vii) The consent holder shall enter Into, and maintain in force, a written maintenance contract with an experienced wastewater treatment plant operator, or a person trained in the wastewater treatment operation and disposal system by the system supplier, for on-going maintenance of the treatment and land disposal systems. This contract shall incrude an inspection and maintenance schedule and inspections at a frequenoy of no less than 12 monthly intervals.

(viii) The supervising Engineer I Consultant shall ensure that the wastewater land dIsposal area and treatment plant achieves the setback requirement as detailed in the design report and required by Table 5.2 titled 'Recommended minimum separation distances according to treated wastewater discharge quality' of Council's TP58 (2004).

(ix) The on-site wastewater treatment and land disposal system shall be installed and commiSSioned prior to occupation of any new dwelling.

Standard wastewater reducing fIXtures shall be installed in any proposed dwelling.

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a. Front loading or low water consumption washing machines (up to a maximum of 125 Iitres per wash); and,

b. Low wEiter use dishwasner; and c. Dual flush (6/3 litre) water cisterns; and either, d. Aerated faucets; and e. Shower flow restrlctors.

(xi) Extra wastewater produoing fIXtures, such as garbage grinders, spa bath, and multi head showers shall not be installed.

(xli) Plumber's certification shall be provided oonfirming the installation of water reducing fixtures within any proposed dwelling.

This condition shall be complied with on a continuing basis by the owner(s) of Lots 3, 4, 5 and balance land Lot 100 and registered at no cost to Council as a Consent Notice on the Computer Freehold Register pursuant to Section 221 of the Act. The consent notice shall be prepared by the Council's Legal Team at the consent holder's cost.

Potable Water Supply and Fire Rghtlng

40. The owners of Lots 3, 4, 6 and balance land Lot 100 shall capture and provide for theIr own potable water supply as the lots are located within an un--serviced rural zone. This shall include the prOVision of water supply tanks and water detention tanks at the time of residential construction in accordance with the approved plans referenced Resource Consent Number 40735 by the Council. Furthermore:

(a) Upon the construction of any habitable buildIng, sufficient water volume. pressure and flows shall be provided in accordance with NZFS Fire Fighting Water Suppliers Code of Practice SNZ PAS 4509:2003 and this water supply shall be accessible for fire fighting purposes.

(b) That water supply shall be provided by way of tank storage an~ this shan be located at a safe distance away from any habitable dwelling for fire fightIng purposes In accordance with NZFS Fire Fighting Water Suppliers Code of Practice SNZ PAS 4509:2003.

(c) All water holding structures shall have an impervious membrane which minimises water Infiltration Into the substrata and an under drainage system connecting to the piped stormwater drainage system which enables the release of such water should the tank fall.

(d) The detention tank shall be designed to limit the post development dIscharge so that the flow rate is no more than the pre..cfevelopment ra~e and the discharge is not decreased below the pre-development situation. This shall be calculated for the 2 and 10 year return period storm.

This condition shall be complied with on a continUing basis and shall be registered as a consent notice on the Certificates ofTitles of lots 3, 4, 5 and balance land Lot 100 pursuant to Section 221 of the Resource Management Act 1991 at no cost to Council. The consent notice shall be prepared by the Council's Legal Team at the consent holder's cost.

Vegetation Management for Lots 3, 4 and 5

41. The owner(s) of 3, 4 and 5 shall protect, manage and maintain the existing native vegetation, and the newly established planting within Lots 3, 4 and 5 "(as per Conditions 15 and 16 above) on a continUing basis with on-golng weed and pest control to the satisfaction of the Council's Team Leader Compliance and MonItoring (South). No activity shall be undertaken within the bush areas that may prejudIce the health and viability of the trees and associated native vegetation.

To ensure the. health and growth of the bush the owner(s) shall: (a) Monitor regularly the bush/re-vegetation areas; (b) Control weed species by hand or by spot spraying with a suitable herblolde; (0) Reduce grass oompetition from any young plants for the first 2-3 years; (d) Control pest animals and undertake appropriate methods to reduce damage from pests; (e) Inspect fences and repair to prevent stock access into the bush blocks; (f) Provide and plant appropriate supplementary species should there" be failure in the re­

vegetation program. Plant losses of greater than 5% of the total plant numbers shall be

in No: 40735 Paga9

24

replaced in the first planting season following plant [055. Replacement plants shall be of the same species and size as originally specified; and

(g) Remove any remaining exotic species from the bush as the canopy develops.

This condition shall be complied with on a continuing basis and shall be registered as a consent notice on the Certificates of Title of Lots 3, 4 and 5 pursuant io Section 221 of the Resource Management Act 1991 at the consent holder's cost. It will also be recorded on Council's Land Information Register.

Road to Vest

42. Lots 101 and 102 shall be vest in Council as road at no cost to the Council.

Further subdivision of Lots 3. 4 and 5

43. No further subdivision shall be undertaken on Lots 3, 4 and 5 that would result In the total permitted density (refer Rule 12.15.4.1 of the Operative Auckland Council District Plan (Manukau Section) 2002 being exceeded with respect to the parent aUotment legally described as lot 1000 DP 442487.

This condition shall be complied with on a continuing basis and shall be registered as a consent notice on the Computer Freehold Register (Certificate of Title) for Lots 3, 4 and 5 pursuant to Section 221 of the Resource Management Act 1991 and at no cost to CouncIl. It will also be recorded on the Council's land Information Register.

Section 223 and 224(c) Certificates

44. The consent holder shall notify the Councll when the survey plan Is lodged with Landonllne for approval under Section 223 of the Act. The plan will be approved if it is In accordance with this consent.

45. Prior to Issue of 1he certificate under seetlon 224(c) of the Act the consent holder shall satisfy the Council that all the conditions of consent have been complied with.

STAGE 2 being subdivision of balance land Lot 100 DP ..... (Stage 1) being proposed Lots 1 and 2

. Predevelopment conditions

46. A 'pre-start' meeting shall be arranged and held not less than 48 hours prior to commencement of any works on the site.

Note: Please contact Council's administration team on telephone number 301 0101 extension (41) 8188 or byemaii to rca@aucklandcouncil.govf.nz to s/TBnge this meeting.

47. The pre-start meeting shall not be schedUled. and no works shall be undertaken in respect to this development before the following requirements have been complied with to the Council's satisfaction;

(a) A geotechnical report (prepared with direct reference to the Foundation Engineering Ltd report project No. 12151 dated 1 August 2005 and any other relevant document) shall be prepared to the satisfaction of council detailing the specific works to be undertaken to stabilise each nf the nominated building platforms for propnsed Lots 1 and 2. The report shall ensure that the proposed stability worKS achieve a factor of safety for all the building platforms greater than 1.5 under moderately conservative conditions and not less than 1.2 under any conditions. The report shall also consider the vehicle crossings to each lot, with consideration to the need or otherwise for stormwater control for water off the road such as localised kerb and channelling.

The above report shall be peer reviewed by a Council appointed peer reviewer, and revised If necessary to the satisfaction of Council's Team Leader Compliance and Monitoring (South), and a written approval provided by Councll. All costs associated with Council's peer review process shall be borne by the consent holder. .

No:4073S Page 10

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(b)

It is noted that one of the building platforms will have been undertaken as a part of Stage 1 of this decision.

The consent holder shall obtain a Building Cons~nt for all required retaining structures, including the palisade walls and stability enhancing drainage measures required to stabilise each nominated building platform.

The consent holder shall provide Council's Team Leader Compliance and Monitoring (South) with copies of completed Producer Statements (PS2 Design Review) for each Individual retainIng sbucture to demonstrate such designs have undergone an appropriate structural check and will comply with the Building Act 2004 and the Building Regulations 1992 (inciuding the Building Code).

(0) The consent holder shall enter Into and maintain a Construction Monitoring Servloe agreement with a suitably qualifIed geotechnical expert who is familiar with the contents of all relevant geotechnical reports and engineering information relevant to thIs application for the duration of the construction project. This Construction Monitoring Service agreement shall be for Constmction Monitoring Services to a level CM5 as defined by IPENZ (IPENZ Endorsed Information - Tabla 1) and shall extend to all engineering works requIred as a condition of thIs consent. A copy of the Construction Monitoring ServIce agreement required by this condition shall be provIded to the Council's Team Leader Compliance and Monitoring (South) once entered into and prior to any work commencing.

This expert shall be responsible for providing certification that a stable building platform has been achieved at the completion of the construction on each of the allotments (or amalgamated allotments) so created. This platform shall have a demonstrated factor of safety greater than 1.5 under moderately conservative conditions and not less than 1.2 under any conditions.

Note: If any constraint is placed on this expert which might restrict the ability of the expert to provide such a certificate, then the 9xpelf has the responsibIlity of requesting a stoppage of the work and must immediately advise Gaunc!1 of the constraint.

(d) Vehicle crossing designs for the works on the road to proVide access to the proposed building platform on lots 1 and 2 shall be submitted to the Council for approval. It Is noted that thIs may Include some bridging, specific stabilisation and stormwater control measures.

48. Prior to the arrangement of the pre-start meeting the consent holder shall submit a Construction Management Plan for the approval and to the satisfaction of Council's Team leader Compliance and Monitoring (South). The approved plan shall be implemented thereafter as approved (subject to any subsequent amendments which the CouncIl may, at its discretion. approve In writing from time to time). The Construotlon Management Plan shall address the appropriate sequence of construction for all stabilisation measures and land modification work to ensure the short and long term stability of the site and surrounding land is maintained.

49. At the pre.start meeting required by condition 46, all protected trees (Including groups of trees) in the vicinity of works shall be clearly identified and measures to be taken to protect and avoid these trees during the construction phase shall be detailed, and relevant measures put in place prior to the commencement of works on the site. These protection measures shall include no less than those set out in condition 51 below.

For the purposes of this consent the term 'protected tree/s' includes trees standing over 6m In height and of a species or subspecies as listed in Schedule 6C of the Auckland Council District Plan (Manukau Section) 2002.

Bond

50. Prior to commencement of construction works for the subdivision the consent holder shalf enter into a bond with the Council with a security value of $50.000 In accordance with section 108A of the Resource Management Act 1991 to secure compliance with conditions of this consent.

The bond shall be released upon the release of the s224(c) certificate for the subdivIsion.

Iicalion No: 40735 Page 11

26

The bond will be prepared by the Council's Legal Team at the consent holder's cost. The bond shall be prepared and executed, guaranteed by a New Zealand trading bank and registered on the Computer Freehold Register (Certificate of Title) for the land.

Development in Progress

Protected Trees

51. (a) No works shall occur. Including no installation of any services, within the dripline of any protected tree (including groups of trees) on the site. This shall involve: - no storage of materials or goods within the dripline of any protected tree; - no discharge of liquids (Including concrete wash) within the drip line of any protected tree. - No movement of vehicles or heavy machinery within the drlpline of any protected tree.

(b) Any protected tree located in the vicinity of works shall be temporarily fenced off around its dripline, using steel warratahs or similar appropriate for the site conditions. and established and maintained for the full duration of the construction phase on Lots 1 and 2.

Contamination

62. If evidence of contamination which ahs not been previously identified is discovered during earthworks, the consent holder shall immediately cease the works and notify the LIcensing and Compliance Team - South, Auckland Council, and provide a site contamInation report to the satisfaction of the Team Leader Licensing and Compliance South. Auckland Council. Any contamination that is discovered shall be investigated. remedlated, disposed of and reported on (including validation) in accordance with the current Ministry for the Environment Contaminated Land Management Guidelines and the relevant guidelines addressing contaminants from specific Industries or activities.

53. Any soil being removed from the site shall be disposed of in an appropriate landfill and provide the landfill receipts to Council on completion of the earthworks. If any contamination is found, the consent holder shall ensure that any excavated soli removed from the site are tested to determine appropriate disposal, and provide landfill receipts and all contaminated fills must be disposed of in a landfill licensed I consented to accept contaminated material an provide evidence of the dlsposaJ to the Team Leader Licensing and Compliance - South, Auckland Council.

Works - General

54. The land stabilisIng works for each building platform on lots 1 and 2 shall be undertaken In a manner which does not undennine the stability of the site or the adjoining road reserve. In this regard the consent holder shall employ a suitably qualified geotechnical engineer to Investigate, direct and supervise all construction works to ensure that the appropriate design and construction methodology is carried out to maintain the short and long term stability of the site and surrounds.

55. Construction works for the site shall be limited to 7:00 am to 6:00 pm Monday to Saturday, No earthworks. civil works or external building works shall occur on Sundays or Public Holidays throughout the duration of the development works for the subdivision.

56. Any noise from construction work (as defined in Chapter 18 of the Auckland Council District Plan (Manukau Seotion» emanating from the site shall comply with the requirements of Rule 5.18.3.6 of the Auckland Council District Plan (Manukau Section).

57. There shall be no damage to public roads, drains, reserves or other public asset as a result of the works approved under this consent. In the event that such damage does occur, the Council's Team leader Compliance and Monitoring (South) must be notified within 24 hours of Its discovery. The costs of rectifying such damage and restoring the asset to its original condition will be met by the consent holder.

58.

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59. AlII any retaining walls sha!! be located wholly within private land an.d not on legal road.

Roadlng

60. Vehicle crossings to the approved design (refer condition 47{d)} shall be constructed to the proposed building site on each proposed lot.

61. Satisfactory public vehicle and pedestrian access shall be maintained at all times when undertaking works Within the road reserve. Furthermore, all necessary precautions shall be taken to protect the public from all hazards associated with the construction works.

Stabilisation Works

62. PrIor to the commencement of stabilisation and earthworks activity on the subject siteJ erosion and sediment control measures shall be put in place that comply with the requIrements of the Auckland Council Technical Publication 90 - Tpga Erosion and Sediment Control.

63. The proposed building platforms on lots 1 and 2 shall be stabDised so that there is a factor of safety greater than 1.5 under moderately conservative conditions and not less than 1.2 under any conditions. It is noted that one of these building platforms will already have been stabilised to satisfy part of this condition as a part of Stage 1 of this decision.

64. All earthworks shall be managed to ensure that no debris, soil, silt, sediment or sediment-laden water is discharged from the subject site either to land, stormwater drainage systems. watercourses or receiving waters. In the event that a discharge occurs, works shall cease immediately and the discharge shall be mHigated and/or rectified to the satisfactIon of the Council's Team Leader Compliance and MonitOring (South).

65. No earth, clay or other debris shall be deposited on any public road as a result of the development activity on the subject site. In the event that such deposition does occur, it shall immediately be removed. In no instance shall roads be washed down with water without appropriate erosIon and sediment control measlIres In place to prevent contamination of the stormwater drainage system, watercourses or receiving waters.

66. There shall be no airborne or deposited dust beyond the subject site as a result of the earthworks activity that in the opinion of the Council's Team Leader Compliance and MonitorIng (South) Is noxious. offensive or objectionable.

67. Unobsbucted access shall be maintained at all times to private properties during the execution of the works authorised by this consent. All materials and equipment shall be stored within the subject siteJs boundaries unless specifically agreed by the Council;

68. Where the earthworks result In archaeological features being uncovered, all works on the subject site shall cease unless In the opinion of the Council's Team Leader Compliance and Monitoring (South) the works can continue subject to restriotions on works within a 10 metre radius of the archaeological find. A suitable temporary barrier and signage restrictfng access shall be erected Immediately, and the New Zealand Historic Places Trust shall be contacted ImmedIately so that appropriate action can betaken.

Utility Services

69. Power and telephone services shall be installed underground within the road benn to provide suitable located service connections to Lots 1 and 2.

The consent holder shall supply completion certificates from the utility service providers and certified "as bullf' plans giving locations of all plinths, cables and ducts.

Suitable easements or road boundary alignments set back from the projected road boundaries shall ,,.. ... -- _ be provided as necessary for any above..ground electrical transformer, or telephone switching

(. ':.)~L at- {I;· cllllies that will be required to service the subdivision. AV - 'TC:' ~

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Post Development Conditions

70. On completion of the works required by condItions of this consent for Stage 2, "as-built" plans and applicable completion certificates, in accordance with the Auckland Council's (Manukau) Quality Assurance Manual, shall be forwarded to Council's Team Leader Compliance and Monitoring (South). . .

71. The consent holder shall provide Council's Team Leader Compliance and Monitoring (South) with copies of completed Producer Statements (PS4 Construction Review) in respect of each Individual retaining structure prior to application for 224(c) release to demonstrate all such structures have been constructed In accordance with the Building Act 2004 and the Building Regulations 1992 (including the Bundlng Code) .

. 72. A geotechnical completion report shall be submitted to the Council's Team Leader Compliance and Monitoring (South) after completion of the stabilising works that:

(0 Determines the suitability of the completed works and confirms that that there Is a factor of safety greater than 1.5 under moderately conservative conditions and not less than 1.2 under any conditions for all the proposed nomInated building sites. It shall also confirm the stability of the access to the building platforms and the immediately adjoining public road.

(ii) [ncludes advice of any ongoing maintenance requirements that might be required by the owner to maintain the continued stability of the site and surrounds.

73. A Consent Notice In accordance with Section 221 of the Resource Management Act 1991 shall be registered on the Computer Freehold Register of Lots 1 and 2 to specify the following requirements on a continuing basis;

(a) All pertinent matters raised in the geotechnical completion report that Council's Team Leader Compliance and Monitoring (South) consIders should be noted.

(b) The owner{s) of Lots 1 and 2 shall locate any household unit and any accessory building(s) within the building platform.

The exact location of the building platforms within Lot 1 and 2 shall be fIXed by survey and dimensIoned on a copy of the survey plan to be attached to the consent notice.

(c) All private stormwater disposal from each buildIng site (including overflows from water tanks) shall be designed by a suitably experienced engineer and submitted for approval at the time of Building Consent application. The works shall be undertaken in ganeral accordance with the approved engIneerIng drawIngs referenced sheets 4, 5, and 6, Resource Consent No: 40735, by Council. .

(This generally requires storm water to be detained and discharged in a dispersed manner near the Invert of an appropriate gully.)

Compliance with these requirements shall be an a continuing basis and shall be registered as a Consent natice in accordance with Section 221 of the Resource Management Act 1991 on too Certificates of Title/Freehold Computer Register of Lots 1 and 2 at no cost to the Council. The consent notice shall be prepared by the Council's Legal Teall! at the consent holder's cost.

74. A comprehensive wastewater disJ;)osal system shall be designed ·by a suitably experienced engineer and submitted for approval at the time of Building Consent application in accordance with the supplementary letter by Coffey Geotechnlcs dated 12 November 2008, and the following:

(i) Wastewater flow to ground disposal shall not exceed 1,620 "tres per day and shall comply with the Auckland Regional Council's proposed Air Land Water Plan (2004), permitted activity Rule 5.5.20.

The Installation of the on-slte wastewater treatment and land disposal system shall be supervised and certified by an Engineer or consultant appropriately experienced in on-site

Page 14

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wastewater systems. The installation shall comply with Auckland Regional Council Technical Publication 58 (2004). The Engineers certification and as-built plans shall be forwarded to the Council's Team Leader Compliance and Monitoring (South). The 'as-built' plan shall indicate setbacks from site features including property boundaries, buildings, retaining walls, and surface water. The 'as-built' plan shall also include the location of all components of the wastewater treatment and land disposal system, such as, the disc filter, all valves and terminal end flush points associated with the disposal field.

(Ill) The proposed on-site wastewater treatment system shall be capable of treating effluent to secondary standard and include 24 hours emergency storage capacity in pump chambers or within the system and above the high water level alarm float switch. The alarm shall comprise an audible and visual alarm to operate in the event of a pump failure. The audible and visual alarm shall be located in a prominent pOSition on the treatment plant or the dwelling.

(Iv) The primary land disposal area shall be intensely planted with water tolerant high evapotranspiration veg~tation suitable for on-site wastewater land disposal areas.

(v) A reserve effluent dIsposal area equivalent to 50% of the primary disposal area shall be provided. The reserve area location shall be detailed on the 'as-built' plans In (Ii) above.

(vi) Stormwater diversion drains shall be provided, as necessary. upslope of the effluent disposal field to redirect any overland stormwater flow away from the effluent disposal field.

(vii) The consent holder shall enter into, and maintain in force, a written maintenance contract with an experienced wastewater treatment piant operator, or a person trained in the wastewater treatment operation and disposal system by the system supplier, for on-going maintenance of the treatment and land disposal systems. This contract shall include an Inspection and maintenance schedule and Inspections at a frequency of no less than 12 monthly intervals.

(viii) The supervising Engineer I Consultant shall ensure that the wastewater land disposal area and treatment plant achieves the setback requirement as detailed in the design report and required by Table 5.2 titled 'Recommended minimum separation distances according to treated wastewater discharge quality' of Council's TP58 (2004).

(Ix) The on~site wastewater treatment and land disposal system shall be Installed and commissioned prior to occupation of the new dwelling.

(x) Standard wastewater reducing fixtures shall be Installed In any proposed dwelling.

a. Front loading or low water consumption washing machines (up to a maXimum of 125 Jitres per wash); and,

b. Lowwater use dishwasher; and c. Dual flush (6/3 litre) water cisterns; and either, d. Aerated faucets; and e. Shower flow restrictors.

(xl) Extra wastewater producing fixtures, such as garbage grinders, spa bath, and multi head showers shall not be Installed. .

(xli) Plumber's certifICation shall be provided confirming the installation of water reducing fixtures within any proposed dwelling.

This condition shall be complied with on a continuing basis by the owner(s) of Lots 1 and 2 and registered at no cost to Council as a Consent Notice on the Computer Freehold Register pursuant to Section 221 of the Act. The consent notice sh~1I be prepared by the Council's Legal Team at the consent holder'S cost.

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Potable Water Supply and Fire Fighting

75. The owner(s) of Lots 1 and 2 shall capture and provide for their own potable water supply as the lots are located within an un-serviced rural zone. This shall include the provisIon of water supply tanks and water detention tanks at the time of residential construction in accordance with the approved plans referenced Resource Consent No 40735 by the Council. Furthermore:

(a)

(b)

(c)

(d)

Upon the construction of any habitable building, sufficient water volume, pressure and flows shall be provided In accordance with NZFS Fire Fighting Water Suppliers Code of Practice SNZ PAS 4509:2003 and this water supply shall be accessible for fire fighting purposes.

That water supply shall be provided by way of tank storage and this shall be located at a safe distance away from any habitable dwelling for fire fighting purposes in accordance with NZFS . Fire Fighting Water Suppliers Code of Practioe SNZ PAS 4509:2003.

All water holding structures shall have an impervious membrane which minimises water Infiltration Into the substrata and an under draInage system connecting to the piped stormwater drainage system which enables the release of such water should the tank faU.

The detention tank shan be designed to limit the post development discharge so that the flow rate is no more than the pre-development rate and the discharge is not decreased below the pre-development situation. This shall be calculated for the 2 and 10 year return period storm.

This condition shall be complied with on a contInuing basIs and shall be registered as a consent notice on tha Certificates of Titles of Lots 1 and 2 pursuant to Section 221 of ihe Resource Management Act 1991. This consent notice shall be prepared by the Council's Legal Team at the consent holder's cost.

Post development conditions

Section 223 and 224(c) Certificates

76. The consent holder shall notify the Council When the survey plan is lodged with Landonline for approval under Section 223 of the Act. The plan will be approved if it Is in accordance with this consent.

77. That the Council's certification pursuant to Section 224(c) of the Resource Management Act 1991 shall not be issued until Stage 1 is completed and released by Council and the consent holder has satisfied the Council that all the conditions of Stage 2 of this consent have been complied with.

Advice notes (applies to both stages)

1. Please read the conditions of this resource consent carefully and make sure that you understand all the conditions that have been Imposed before commencing the development.

2. This resource consent will/apse five years after the date of Council's decision unless: (a) it Is given effect to before the end of that period. To give effect to this. consent the acUvily

allowed by this consent must be established and the conditions contained In the consent complied with. Please note that there must be compliancB with all of the consent conditions once the land use has baen establishec1, or

(b) an application is made and granted prior to the expiry of that period for a time extension. The statutory considerations that apply to extensions are set out in section 125 of the RMA.

N.B ~ all charges owing at the time council's decision Is notified must be paid before a consent can commence.

3. The consent holder shaff obtain all other necessary conssnts and permits, including those under the Building Act 2004, and the Historic Places Trust Act 1993. This consent does not remove the need to comply with all other applicable Acts (including the Property Law Act 2007), regulations, relevant Bylaws, and rules of Jaw. This consent does not constitute building consent approval. Please check whether a buildIng consent Is required under the Building Act 2004. Please note that the approval of this resource consent, including consent conditions specified above, may affect a previously Issued building consent for the same project, In which case a new building consent may

tion No: 40735 . Page 16

31

be requIred. If not all resource consents have been applied for and CouncIl has not required these consents be sought as part of the consent applications for this proposal, it remains the responsibility of the consent horder to obtain any and aI/ necessary resource consents required under the relevant requirements of the Resource MenagementAct 1991.

4. A copy of this consent should be held on site at al/ times during the establishment and construction phase of the actiVity. The consent holder is requested to notify Council, in wrfting, of their intention to begin works, a minimum of seven days prior to commencement. Such no1lficatlon should be sent to the attention of the Council's Team Leadsr - CompJlance and Monitoring (South) by email on rca@aucklandcouncll.govf.nz and should include the following details: • name and telephone number of the project manager and the site owner; e site address to which the consent relates; • activity to which the consent refafes; and II expected duration of works.

5. If you disagree with any of the above conditions, or disagree with the additional charges relating to the processing of the application you have a right of objection pursuant to sections 357 A or 357B of the RMA. Any objsellon must be made in writing to Council within 15 workfng days of notification of the decisIon.

B. Compliance with the consent conditions will be monitored by Council in accordance with section 35(d) of the Resource Management Act. This will typlcafly include site visits to verify compliance (Dr non compliance) and documentation {site notes and photographs] of the activity established under the Resource Consent. In order to recover actual and reasonable costs, inspectIons, in excess of those covered by the base fee paid. shall b8 charged at the relevant hourly rate applicable at the time. Only after all conditions of the Resource Consent have been met, will Council issue a letter on requastofthe consent holder.

7. A vehicle crossing permit is required to be obtained from Auckland Transport prior to any physical works commencIng. Pfease contact Shelley Francis-Brabant, Ph (09) 355 3553 extn 5nO or mob-Q21 676099.

8. All work within the legal road coni dar (boundary to boundary) requires a 'Corridor Access Request (CAR) approved by Auckland Transport.

9.

10.

11.

12.

13.

14.

Note: that an application for a CAR Is made onllna to www.beforeudfg.co.nz wherv relevant background details are requIred Including resource consents, frafftc management plans etc. A CAR may require up to 15 days to process and construction hours may be restricted on eerlaln roads.

This consent does not constitute authority to build or undertake private drainage works and it may be necessary for you to apply for a Project Information Memorandum snd Building Consent If you have not already done so.

A copy of this consent and the associated approved drawings should accompany your application for a Project Information Memorandum and Building Consent. If not supplied unnecessary delay may occur in the processing of your application.

The consent notIce infonnation will be recorded on Council's Land Information Reg/ster.

This subdMsion consent does not waive the need for a land use resource consent for any buildings proposed within the Sensitive Ridgefine. At time of future consent the relevant matters of this consent / consent noUae will need to be addressed.

At the time of future subdMsfon of the land the requiremfHIt for road upgradIng works will be readdressed. The granting of this consent makes no implications with regard to future road upgrading requirements, and there may ba upgrading required if the land is proposed for subdivision again In the future.

Although 'he proposed location of the earthworks do not contain any archaeological sites, it Is possible that unrecorded sites may exist Under the HIstoric Plaoo8 Act 1993, It is unlawful for any person to destroy, damege or modify an archaeologIcal site unless the relevant consents have been obtained from the New Zealand Historic Places Trust. In the event of archaeological features being uncovered (e.g:shell midden, hang; or oven stones, pit depressions, defensive ditches, artefact material or human bones) work is to cease In the vicinity of the discovery and the New Zealand Historic Places Trust and appropn'ate Iwi authorities shall be contacted so that the appropriate

Page 17

32

action can be taken. This includes such persons being given reasonable time to record and recover archaeological features discovered before work may recommence.

16. The consent notices on the current Computer Freehold Register for the subject parcel of land, referenced 8897617.2 will not fall down onto the Titles for the new Lots created.

16. Development contribution levied under the Local government Act 2002 are payable in relation to this application. The consent holder will be advised of the development contribution payable separately from this resource consent decIsion. Further information about development contributions may be found on the Auckland Council website at www.auck/andcouncil.govi.nz.

17. The relevant development and performance standards for each zone, eg: maximum height, yards and site coverage all still need to be met by any proposed buildings. The location of the building platform implies no var/anoe from these standards. A separate land use resource consent Is likely to be required ifthes9 standards are not met. In accordance with Activity Tab'e 12.10.2 any building on Lots 1 and 2 will require a further separate resource consent as they will be positioned within the SensItive Ridge zone.

Authored By:

Name: Rebecca Jarman

Title: Senior Planner, Resource Consents

Signed:

Date:

DECISION UNDER DELEGATED AUTHORITY

Decision

Having considered the submitted application material, aI/ relevant statutory considerations and the planning assessment. acting under delegated authority. Consent Number 40735 is granted subject to the conditions of consent listed above. .

Team Leader: Robert Chieng

Title: Team Leader. Resource Consents

Signed:

Date:

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\\ " \0

This is the Exhibit marked "10" referred tb In the affidavit of Arthur Sylvan Morgenstern sworn at Auckland this 7 .. rl day of ~ h::>6 ... _ 2017 before me:

. ~~ Signature ........................................................................ . A Solicitor/Barrister of the High Court of New Zealand (Solicitor to sian,in Dart on Exhibit)

Morning Star Development Limited (Owner)

AUCKLAND COUNCIL (Council)

BOND, COVENANTS & GUARANTEE

Date: August 2{)14

Property Address: 181 Point View Drive East Tamaki

Subject: Bond for Uncompleted Works

Council Reference: 40735 (Stage 1) - Bond 1 Maintenance

Bond Sum: $71,454.37

Duration of Bond: Three years

~~ ~ ... ~' ...... -~ ~

Auckland Council

:'y "-' '.~",.""''''''''

B _.,._--'.,

, Elizabeth Heaney Senior Solicitor Auckland

RCP'()83 (2) Jan-OB J Page 1 of 4

135

-------- ---._----.

nEED dated the

I~D' COVENANTS & FURTHER SECURITY

da~AUgUst of 2014 .

PARTIES

1. Morning Star Development Limited ("tha Owner")

2. AUCKLAND COUNCIL ('the Council")

THIS DEED RECORDS that:

1. INTERPRETATION

1.1 In this Bond and Covenants:

"the Bond sum" Is $71,454.37

"the. Land" means that described In the First Schedule and any part of It.

Auckland Council . , '" ," • 'of. ~ ...

"the Works" means and inciudes all those descrIbed as such In the Third Schedule and anythIng whether In the nature of works or otherwise reasonably required by the Council to be performed or provided by the OWner In terms of this deed.

1.2 Words Importing the singular shall Include the plural; and the masculine gender the feminine or neuter and vIes versa; and words Importing persons shall include any body corporate Including companIes and vice versa. .

2. RECITAL OF CIRCUMSTANCE

The Owner has applied to the Council for resource consents 40735. 44176 and 44179 to develop the Land. As a condition of Its consent the Council has required the Owner: (a) To enter into this Bond and Its Covenanls In the Council's favour, and (b) To provide further security for such Bond by depositing the Bond sum in cash with the

Council. The Owner shall not be entitled to Interest on that deposIt.

3. BOND

Obligation

3.1 BY THIS BOND the OWner Is bound to pay to the Council the Bond sum In the event of the Owner fail.ing to comply with the condition set out below in clause 3.2.

Condition

3.2 . The condition for payment by Ihe OWner to the Council of the bond sum referred to in clause 3.1 is the Owner's due and punctual compliance, at the Owner's oost, with the Covenants to the Counen's reasonable satisfaction.

Release

3.3 The condition in clause 3.2 shall not be, nor be deemed to have been, satisfieo, nor the Owner's obligation to pay the Bond sum to the Council cancelled or expired, nor the sum deposited with the Council as referred to above, or so much of that deposit as remains to the Owner's credit, refunded by the Council to the Owner, until this deed is discharged by the Council.

136

RCP'()63 (2) Jan..IJS/ Page 2 of 4

-------_._---_ ... ---

4. CONDITIONl> OF THE BOND

The oPligation of the Bond given by the Owner to the Council is conditioned to be void and the sum deposited with the Council as further security (or so much thereof as remains to the Owner's credit) shaU be refunded by the Council to the Owner In the event of the Owner at the Owner's cost in all things, duly and punctually, and to the reasonable satisfaction of the Council, complying with all the covenants of the Second Schedule provided that these conditions shall not be, nor be deemed to have been satisfied. ncr the obligation of the Bond cancelled or expired until discharged by the C.ouncll.

FIRST SCHEDULE ("the Land")

An estate In fee simple in Lcts 3,4 and 5 DP473383 (North Auokland Registry).

SECOND SCHEDULE ('the Covenants")

The Owner covenants in favour of the Council as follows:

1. The OWner shell have the Works carried out and completed In strict accordance with pfans and specifications and any timetable or programme of performance first approved by the Council and io the satisfaction of the Council.

2. Tile Owner shall maintain the Works until all the Works have been completed to the satIsfaction of the Council .. Including the provisIon of satisfactory as-built plans and records of the Works together with Gert!flcates of Due Performance of the Works acceptable fo the Counc~ given by adequately quaHfied persons from time to time as requested by the Council. including upon completion of the Works.

3 The Owner shall effect and maintain such insurances, in such names, sums and on such terms as the Council may reasonably require, comply with all requirements of the Health and Safety in Employment Act 1992 and shall indemnIfy the Council to the full extent permitted by law against Iiabiliiy or loss arising directly or indirectly to the Counoil as a consequence of compliance, or nOll­compliance by the Owner with the ienns and conditions of thIs deed.

4. The liability of the Owner hereunder shall not be released, varied or affected i!1 any way by any delay, extension of time or other Indulgence to the Owner or suffered or permitted by the CouneR or by any delay failure or neglect of the Council to enforoe the qbllgalion or covenants of 1hls deed.

5 The powers, rights and remedies of the Council under this deed are In addition to and not in . substitution for all other powers, rights and retnedies conferred upon it by law and the exercise of any power, right or remedy under this deed shall not prejudice the Councll's authority to exercise any ott,er powers, rights or remedies.

6. The Owner shall forthwith upon iirst request pay the Council's legal costs and disbursements on a solicitor and client basis in respect of settling the terms and conditions, and the preparation, execution, operation, enforcement, any varIation and the ultimate release of this deed and of any action or proceedings relative to it.

THIRD SCHEDUL.E ("the Worksj

The provisIon. performance and completion to the Counclrs reasonable satisfaction of condItion 16 required under the Council's resource consent 40735 quoted below.

137

RCP'()83 (2) Jan'()B I Page 3 of 4

Condition 16 The owners of Lots S, 4 and 5 DP473S83 shall continue to maintain aU plantfngs. including replacement planting as necessary for a period of not less than three years [n accordance with tha Planting Plan approved under Condition 11 of this consent. . Par planting and re-vegetatJon information, please refer to the "Implementat;on and Maintenance Programme" and the "Proposed Rehabilitation and Planting Plan" prepared by Encompass Landscape Architects rererenced Plan No. PVD3.

The bond shall remain in place until such time as the entire plantIng and re-Yegetation area withIn Lots 3. 4 and 5 DP473383 has been certified by a suitably qualified arborlst as being 'fully established and sustainable' to the satfsfaction of the Council's Team Leader - Southern Monitoring.

These conditions are to be completed by August 2017.

The Owner is also responsible for ensuring that

(a)

(b)

{c)

(d)

All necessary or deslrable works assocIated with Iha works described above including on any road (including road repairs) or property adjoining or near the Land affected by the Works; and

The provisIon to the Council as and when requested of such reports, plans. specifications, documentation and certificates acceplable to the Council; and

The payment of afllawful fees and charges of the Council relative to.the Works and any exercise by the Council of Its rights and powers under the Second Schedule by statute Of. otherwise; and

The securing, maintenance and due perfonnanoe of any pennlt, licence, right or authority that may be necessary or desirable for the performance of the Works by or for the Owner or the Council, and the observance and performance of any condltiolJs applying to any such permit, licence, righl or authority,

AND it is specifically expres. d that performance of the Works shall require at all times the highest practicable standards of pe mance with particular regard to environmental, visual and aural 1m pact and the safety and convenience of persons directly or indirectly affected by the Wolks.

"Company

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RCP-083(2J Jan-OS I Page 4 oT 4