Hearings Commissioner

Notice of Meeting A meeting of the Hearings Commissioner will be held in the Whangarei Library, May Bain Room, Rust Avenue, Whangarei on:

Friday

13 April 2018 9am

Application by Segmental Liners Ltd

Commissioner Greg Hill

Index Page No

Authorisation Sheet ....................................................................................................................................... 1

Environment Planner (Consents) Report ...................................................................................................... 3

Recommendation ........................................................................................................................................ 41

Attachment 1: Scheme Plan ........................................................................................................................ 43

Attachment 2: The Application (as lodged) ................................................................................................. 44

Attachment 2a: S92 Information ............................................................................................................... 282

Attachment 3: S95 Notification Report ...................................................................................................... 297

Attachment 4: Correspondence Following Notification ............................................................................ 308

Attachment 5: Submissions ....................................................................................................................... 322

Attachment 6: History of Subdivision and Zone Changes Over Time ....................................................... 347

Attachment 7: SDE Engineering Review Report…………………………………………………………… ...362

Attachment 8: NCC Consulting Engineers Peer Review Report ............................................................... 368

Attachment 9: District Plan Chapters ........................................................................................................ 377

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2046405167-13934 13 April 2018

Report to Hearings’ Commissioner Greg Hill on a Resource Consent Application

This subdivision consent application was lodged by Reyburn and Bryant on behalf of Segmental Liners Limited and was reported on by Council’s Senior Specialist (RMA Consents), Ueli Sasagi.

The proposal is for twelve residential lots subdivision and two access lots of the subject site of 2.7291ha in the Living 3 Environment. The subdivision is assessed as a Discretionary Activity. It includes an assessment of the site under the Resource Management (National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health) Regulations 2011 (NES Contaminated Soils) as a Restricted Discretionary Activity.

13 March 2018

Ueli Sasagi – Senior Specialist (RMA Consents) Date

This report was peer reviewed by the following signatory:

14 March 2018 Kaylee Kolkman – Team Leader RMA Consents Date

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Statement of staff qualification and experience

Ueli Sasagi – Senior Specialist (Consents)

My name is Ueli Sasagi. I hold the qualifications of Master of Regional and Resource Planning, a Bachelor of Science (Forestry) and a Diploma in Agriculture. I am a full member of the New Zealand Planning Institute. I have been working in resource management and planning matters throughout New Zealand since 1996. I am currently employed as a senior specialist planner for the Whangarei District Council, and have worked for the Council since May 2013. I have been working in a wide range of statutory and policy planning functions, including all stages of the resource consent process in Local and Central Governments, the Private Sector and the Environment Court.

Vladimir Rozov – Senior Environmental Engineering Officer

I am a civil engineer employed by Whangarei District Council in the Resource Consents department. I have the title of Senior Environmental Engineering Officer. I qualified from a Polytechnic University (in former USSR) in 1981 with a Bachelor degree in Industrial and Civil engineering and I am a graduate member of the Institute of Professional Engineers New Zealand Inc. I have many years’ experience in roading/drainage/earthworks/civil construction and I have worked for the Whangarei District Council as Environmental Engineering Technician, Support Officer, Officer and Senior Environmental Engineering Officer since 1999. My position within the Resource Consent department requires me to assess all engineering aspects of resource consent applications using my technical knowledge and oversee construction works to ensure compliance with Council Standards.

The above staff are familiar with the Environment Court’s ‘Code of Conduct’ for expert witnesses and agree to comply with the Code of Conduct in presenting hearing evidence to the Commissioner.

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Section 42A Hearing Report

Hearing by: Hearings’ Commissioner Greg Hill of a Discretionary Activity subdivision proposal by Segmental Liners Ltd to subdivide the subject property into twelve new residential allotments and two access lots. The site is located at 95 Austin Road, Maunu being legally described as Part MBLK 2 NONE WAIPUNA (CFR NA1020/268). The total area of the site is 2.7291ha.

Evidence by: Ueli Sasagi, MRRP, BSc (Forestry), Dip (Agr), MNZPI

File Refs: SD1700121, P038814 RESCONS-2046405167-13934

Dated: 13 March 2018

The Proposal & Background

The proposal

To subdivide the site at 95 Austin Road, Maunu legally described as Part MBLK 2 NONE Waipuna (NA1020/268) and has a total area of 2.7291 hectares. The proposed subdivision will create 12 residential lots and two access lots. The proposed residential lots will have areas ranging from 2000m² to 2275m² with proposed access Lot 100 of 1955m² and Lot 101 of 395m² (full description of the proposal is in Section 3 of the application, pages 8-13).

Figure 1: Proposed subdivision plan

Access to the site will be via an existing 4m wide accessway off Austin Road. The proposed lots will then be accessed via proposed Lot 100 and 101 as common access. Lot 100 will be held as twelve undivided one-twelfth shares by the owners of Lots 1-12, and Lot 101 will be

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held in five undivided one-fifth shares by the owners of Lots 4-8. The common access will also provide access to 97, 95A and 95B Austin Road.

This proposed subdivision also triggered a need for Resource Consent as a Restricted Discretionary Activity for failing to meet Regulation 10 of the NES Contaminated Soils.

The scheme plan is in Attachment 1 with the full application as lodged in Attachment 2.

Background

The application was formally accepted by Council on 26 June 2017 and following an initial assessment of the application, additional information was required to undertake a full informed and educated assessment of the proposal (Attachment 2A). These include:

• NES Contaminated Soils – Provision of a Remedial Action Plan upfront and a Site Validation Report at completion of remediation;

• Access – investigate alternative and safe accessway to the newly created allotments;

• Written approvals – consulted and obtained written approvals of all users of the accessway;

• Process – advising the applicant of the likely full notification of the proposal to the public due to several issues identified in this application.

The applicant responded to the above matters by email dated 7 August 2017. While the response was not satisfactory because of lack of required information sought, the applicant agreed to proceed on a peer review of the Assessment of Traffic Effects by Engineering Outcomes dated 27 April 2016.

Further clarification and response to questions raised on the above matters were communicated to the applicant by a second letter dated 21 August 2017. In particular, the applicant was strongly advised to engaged an experienced and qualified planner to prepare an ‘Assessment of Environmental Effects.

While awaiting the provision of the required information sought, NCC Consulting Engineers Ltd was engaged to peer review the Assessment of Traffic Effects by Engineering Outcomes (Attachment 8). The peer review report was submitted to Council on 8 September 2017 which was subsequently sent to the applicant.

A full response to the matters raised in my two letters was received by Council on 27 November 2017 prepared by Reyburn and Bryant who now took over as the applicant’s agent. Council’s Senior Development Engineer (SDE) considered the engineering information including traffic matters provided in support of the proposal. Council’s SDE has concerns about the effects of the accessway.

The information provided enabled the completion of the Resource Management Act 1991 (RMA) Section 95 – Notification Report which is in Attachment 3 together with copies of all email correspondences as outlined above. The s95 report concluded that the application was to be limited notified to all the adjoining neighbours and authorities directly involved in providing relevant services outside Council.

The application was limited notified on 10 January 2018. I will return to the notification matters in the later part of this report.

Site and Surrounds Description

Zoning, resource areas and other notations

The subject site is in the Living 3 Environment of the Operative District Plan. It also shows Critical Electricity Lines (CEL) running along the northern boundary of the site. (see Figure 2 below).

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Figure 2: Environment Map

The site is shown in Figure 3 below to have just water service available in the nearby area.

Figure 3: Services Infrastructure

Site Description

The site is located at 95 Austin Road, Maunu and is legally described as Part MBLK 2 NONE WAIPUNA (CFR NA1020/268). The total area of the site is 2.7291ha. It is located on the western side of Austin Road, approximately 800 metres from its junction with State Highway 14.

The subject site is accessed via a pan handle accessway off Austin Road of 4m wide with a carriageway of varying width between 2.8m and 3.2m. The length of the accessway is approximately 200m which is flanked on both side by stonewalls of heritage status restricting any widening of the accessway. The site also has frontage onto Catlin’s Lane along the northern boundary.

The site contains two residential units which are in the centre of the property fronting the accessway. There is well established shelterbelt located along the western boundary and in various part of the site.

The site was used as a kiwifruit orchard which was ceased 10 years ago. It has been reported that during the last five years of the orchard, predator mites were used to control pest. However, prior to that, it is understood that contractors were used to spray the orchard with pesticides.

The certificate of title for the site contains several memorials as follows:

• C378470.3 – Right of way and electrical supply easement over part marked A on Plan DP 150017.

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• D520895.5 – Transfer surrendering the above right of way in part appurtenant to Lot 1 DP 203700.

• D520895.6 – Right to transmit electricity and telecommunication over part marked A DP 201016.

Surrounding Environment

The application contains a description of the surrounding environment of which I concur which is replicated below:

“To the north, the subject site adjoins a distinct cluster of residential allotments. This cluster is associated with the subdivision and development on Tullamore, Heritage Way, Belle Lane, ad Beau Lane, which are located on the eastern side of Austin Road where land is zoned Living 3 Environment under the Operative District Plan. Allotment within this cluster typically range sizes from 2,000m2 to 2.7ha. Land on the western side of Austin Road is zoned Countryside Environment under the Operative District Plan, although there are also rural residential allotments located along this side of Austin Road.”

Figure 4: The Site and Environs

A history of subdivisions along Austin Road is in Attachment 6. It also contains a history of changes of the zones along the same road.

District Plan Assessment

Reasons for the application

Rule 71.3.1 Allotment Area provides for subdivision to be considered as a controlled activity in Living 3 Environment where every allotment has a net site area of at least 2000m2. Council’s control is limited to the following:

i. The likely location of future buildings and their potential effect on the amenity of

the locality; ii. The efficient provision of services to the land being subdivided and to nearby

land that might be subdivided in future;

iii. The additional matters listed in Chapter 70.3.

Rule 71.3.3 Allotment Shape requires controlled subdivision to create allotments capable of containing, within its net site area, a circle with a diameter of 16m, or a square at least 14m by

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14m. This proposal is a Controlled Activity under this rule with Council’s control limited to the following:

i. The ability to site a building permitted under this Plan;

ii. Provision for safe and practical vehicular access to allotments;

iii. Amenity values of the locality;

iv. The additional matters listed in Chapter 70.3.

Rule 71.3.4 Building Area requires subdivision to be assessed as Controlled Activity if each created lot will have an identified building area of 100m2. Despite the absence of this on the scheme plan, it is understood all newly created lots are capable of accommodating building areas of this size. This subdivision is therefore considered a controlled activity under this rule with Council’s control limited to the following:

i. The need for earthworks;

ii. Provision for parking, loading manoeuvring and access;

iii. Effects of natural hazards; iv. Bulk, height, location, foundations, and floor level of any structures on allotments;

v. Protection of land from natural hazards;

vi. Protection of residential units from road noise;

vii. The additional matters listed in Chapter 70.3.

Rule 71.3.5 Existing Buildings requires subdivision to be assessed as Controlled Activity if (a) The boundaries of all allotments are drawn relative to existing buildings so that there is compliance as a permitted activity with the rules in Chapter 47 (Road Transport) and any other rules relating to parking, loading, manoeuvring and access; and (b) The boundaries of all allotments are drawn relative to existing buildings, so that the building complies as a permitted activity with the rules in this Plan relating to site coverage, setbacks, daylight angles and outdoor living space, except to the extent of any non-compliance that existed lawfully prior to subdivision. The proposed subdivision is a controlled activity under this rule with Council’s control being limited to the following matters:

i. Effects on amenities, both on-site and on neighbouring properties, including other

allotments in the subdivision; ii. Opportunities to reduce the extent of any existing non-compliance with the rules in

this Plan; iii. The additional matters listed in Chapter 70.3.

Rule 71.3.8 Property Access requires subdivision to be assessed as controlled if (a) Every allotment is capable of having vehicular access to a road; and (b) Access shall be provided where it is shared by 2 or more allotments; and (c) The access complies, in all respects, with the relevant standards in Whangarei District Council’s Environmental Engineering Standards 2010 and the relevant provisions in Appendix 9; and (d) No more than 8 allotments, or 8 residential units, are served by a shared access. The proposed subdivision does not comply with these requirements. Therefore, the proposal is assessed as a restricted discretionary activity with Council’s discretion being restricted to the following matters:

i. The matters over which control is reserved;

ii. The need for access to the allotment;

iii. The safe and efficient movement of people, vehicles and goods;

iv. The ability of the road structure to withstand anticipated loads;

v. The effects of water runoff. Note that (i) above refers to the matters under which Council’s controls are limited; these are listed below:

i. The relevant provisions of the Whangarei District Council’s Environmental

Engineering Standards 2010;

ii. The adequacy of the access for the anticipated use;

iii. The ability of the access to contain required services;

iv. Traffic safety and visibility;

v. The need for acceleration and deceleration lanes;

vi. Type, frequency and timing of traffic; vii. Access design, number and location of vehicle crossings;

viii. Efficiency and safety of roads;

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ix. Need for forming or upgrading of roads in the vicinity of the site;

x. Need for traffic control, including signs, signals and traffic islands;

xi. The additional matters listed in Chapter 70.3.

Rule 71.3.9 Road and Cycle Layout and Formation requires subdivision to be assessed as controlled activity if (a) Any new road or cycleway laid out or formed in a subdivision complies in all respects, with the relevant standards in Whangarei District Council’s Environmental

Engineering Standards 2010 and the relevant provisions in Appendix 9; and (b) New roads and cycleways are formed along the general alignment of any indicative road or cycleway shown on the Planning Maps. The proposed new lane does not meet this rule. The proposal is therefore assessed as a Discretionary Activity.

Rule 71.3.10 Street Lighting requires subdivision to be assessed as controlled activity if (a) Street lighting is provided on all new roads created by the subdivision, and complies with the relevant standards in Whangarei District Council’s Environmental Engineering Standards 2010 and the relevant provisions in Appendix 9. The proposal does not contain street light as part of the proposal. It is therefore assessed as a Restricted Discretionary Activity with Council’s discretion being restricted to the following:

i. The matters over which control is reserved;

ii. The necessity for street lights;

iii. The spacing of the lights;

iv. The height of the lights. Regarding (i) above, the following are relevant matters under which Council’s control is limited to:

i. The safety of vehicle occupants and pedestrians;

ii. Road safety and efficiency; iii. The relevant provisions of Appendix 9 and the Whangarei District Council’s

Environmental Engineering Standards 2010;

iv. The additional matters listed in Chapter 70.3.

Rule 71.3.11 Provision for Extension of Service requires subdivision to be assessed as a controlled activity if (a) The design and layout of the subdivision provides for, and considers, the efficient future extension of water supply, stormwater, sewerage and roads to any adjoining land. The proposed subdivision will not meet the requirements of this rule and is therefore considered to be a Discretionary Activity.

Rule 71.3.12 Water Supply requires subdivision to be assessed as controlled activity if (a) All allotments are provided, within their net site area with a connection to a Council-maintained

water supply, where available; and (b) The water supply is constructed to comply in all

respects with the relevant standards in Whangarei District Council’s Environmental Engineering

Standards 2010 (EES) and the relevant provisions in Appendix 9; or (c) Where no Council

system is available, all allotments can be provided with a safe potable water supply. As the

proposal is a controlled activity under this rule, the following are matters under which Council controls are limited to:

i. The availability of sufficient water to each allotment for the likely land use;

ii. Supplies of water for firefighting purposes; iii. Water infrastructure within the subdivision, and linkage with existing supply

systems outside the subdivision; iv. Where there is no Council-reticulated water supply, the safety and

reliability of any proposed water supply; v. The need for land to be set aside and vested in the council as a site for any

public water supply;

vi. The relevant provisions of Appendix 9 and the Whangarei District

Council’s Environmental Engineering Standards 2010; vii. The additional matters listed in Chapter 70.3.

Rule 71.3.13 Stormwater requires subdivision to be assessed as controlled activity if (a) all allotments are provided, within their net site area, with a means for the disposal of collected stormwater from the rooves of all potential or existing buildings, and from all impervious

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surfaces; and (b) the disposal is by way of: ….in the Living 3 Environment, the capability of a

connection to a council maintained stormwater system, where available; and (c) theconstructed to comply in all respects with Whangarei District Council’s Environmental Engineering Standards 2010 and the relevant provisions in Appendix 9. The proposal does not meet this and is therefore assessed as a Restricted Discretionary Activity where Council’s discretion is restricted to the following:

i. The matters over which control is reserved; ii. The need for a connection to a stormwater disposal system for the

allotment; iii. The proposed system’s ability to protect property and the environment from

the adverse effects of surface water; iv. The proposed system’s ability to accommodate the anticipated flows and

withstand the anticipated loads. Regarding (i) above, the following are relevant matters under which Council’s controls are limited to:

i. Control of water-borne contaminants entering water bodies; ii. The capacity of the council’s stormwater system to cater for increased

runoff from the proposed allotments; iii. Effects of the proposed subdivision on surface runoff and drainage to, or

from, adjoining properties and mitigation measures; iv. Stormwater infrastructure within the subdivision and linkage with existing

supply systems outside the subdivision; v. The need for land to be set aside and vested in the Council as a site for

any public utility; vi. The relevant provisions of Appendix 9 and the Whangarei District Council’s

Environmental Engineering Standards 2010;

vii. The additional matters listed in Chapter 70.3.

Rule 71.3.14 Sewage requires subdivision to be assessed as controlled activity if (a) all allotments are provided, within their net site area, with a connection to a Council-maintained sewerage system, where available; or (b) where no Council system is available, all allotments are capable of being provided with a safe and effective means for the disposal of sewage within

the net site area; and (c) The connection and sewage disposal system is constructed to

comply, in all respects, with the relevant standards in Whangarei District Council’s Environmental Engineering Standards 2010, and the relevant provisions in Appendix 9. As the proposal, does not demonstrate meeting the above controlled matter, the proposed subdivision is therefore assessed as a Restricted Discretionary Activity with Council’s discretion being restricted to the following matters:

i. The matters over which control is reserved; ii. The need for a connection to a sewage disposal system for the allotment; iii. The capacity, availability and accessibility of any Council system to serve

the proposed subdivision;

iv. The proposed system’s ability to treat sewage; v. The proposed system’s ability to accommodate anticipated flows and

withstand the anticipated loads. Matters under which Council’s controls are limited to (i above):

i. The effectiveness and efficiency of the proposed system;

ii. The effects of the disposal system on health, safety and amenities;

iii. Effects of the proposed system on adjoining properties;

iv. Control and monitoring of contaminants discharged to land or water; v. Where a council system is not available, the effects of temporary systems

pending availability of the Council system; vi. The need for land to be set aside and vested in the Council as a site for

any public sewage utility; vii. The relevant provisions of Appendix 9 and the Whangarei District Council’s

Environmental Engineering Standards 2010;

viii. The additional matters listed in Chapter 70.3.

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Rule 71.3.15 Other Significant Features requires subdivision to be assessed as controlled activity if (a) the boundaries of all allotments are drawn relative to a significant or notable feature identified in Appendices 2, 3 and 13, to ensure that the whole feature is entirely within one of the allotments produced by the subdivision; and (b) Any identified building areas avoid the significant feature; (c) Permanent protection of the significant feature is achieved. This proposal is assessed as a Controlled Activity where Council’s controls are limited to the following:

i. Effects on allotment boundaries and/or identified building areas on the

integrity of the significant features;

ii. Methods of permanent protection of significant features; iii. The additional matters listed in Chapter 70.3.

Rule 71.3.16 Electricity requires subdivision to be assessed as Controlled Activity if (a) all allotments are provided with a connection to a reticulated electrical supply system at the

boundary of the net site area; and (b) the electrical supply is underground. The proposal is not

fully compliance with this rule and is therefore assessed as a Restricted Discretionary Activity with Council’s discretion being restricted to:

i. The matters over which control is reserved; ii. The need for an electrical supply system on the allotment.

Matters of which Council’s control is limited over includes: i. The capacity of the proposed electrical supply system; ii. The effect of the proposed systems upon landscape and ecological values; iii. The relevant provisions of Appendix 9 and the Whangarei District Council’s

Environmental Engineering Standards 2010; iv. The additional matters listed in Chapter 70.3.

Rule 71.3.17 Telecommunication requires subdivision to be assessed as controlled activity if (a) All allotments are provided with a connection to a telecommunications system at the boundary of the net site area, provided that (b) Where:

i. There are no existing telecommunications lines and service leads/lines/connections; or

ii. The existing telecommunications and service leads / lines / connections are underground or wireless; or

iii. The subdivision is within any Outstanding or Notable Landscape Areas as depicted on the resource areas on the Planning Maps; all new lines including service services leads/ lines/ connections shall be underground or wireless.

The proposed subdivision will not meet this rule and is therefore considered to be a Restricted Discretionary Activity with Council’s discretion being restricted to:

i. The matters over which control is reserved; ii. The need for a telecommunications system on the allotment

Matter over which Council’s controls are limited include: i. The capacity of the proposed telecommunication system; ii. The effect of the proposed systems upon landscape and ecological values; iii. The relevant provisions of Appendix 9 and the Whangarei District Council’s

Environmental Engineering Standards 2010; iv. The additional matters listed in Chapter 70.3.

Rule 71.3.18 Earthworks requires subdivision to be assessed as Controlled Activity if (a) All earthworks comply with the relevant standards in Whangarei District Council’s Environmental Engineering Standards 2010 and the relevant provisions in Appendix 9; and (b) There are no changes to the natural range of water levels or the natural eco-system of flora and fauna in any indigenous wetland, as a result of the earthworks. (c) No earthworks occur within a Site of Significance to Maori or within 10.0m of any archaeological site; and (d) No earthworks occur within an Outstanding Landscape Area in excess of those permitted by Rule 57.2.2. In assessing the proposal under this rule, Council’s control is limited to the following:

i. Machinery to be used and hours of operation; ii. Effects on the locality; iii. Effects on ecological, heritage and landscape values; iv. Effects on water bodies, including indigenous wetlands;

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v. The relevant provisions of Appendix 9 and the Whangarei District Council’s Environmental Engineering Standards 2010;

vi. The additional matters listed in Chapter 70.3.

Rule CEL.1.4 requires subdivision proposal within 32m of the centre line of a Critical Electricity Line (CEL) or with 32m of a designation boundary of a substation to be assessed as a Restricted Discretionary Activity with Council discretion being restricted to the following:

i. The safe and efficient operation and maintenance of the electricity supply network,

including: a. The use, design and location of buildings; and b. The mature size, growth rate, location, and fall zone of any associated tree

planting, including landscape planting and shelterbelts; and c. Compliance with NZECP 34:2001; and d. Effects on public health and safety; and e. Effects on access to CEL’s, designated substations and associated

infrastructure for maintenance purposes

Rule BH.1.8.4 requires subdivision of any site (including allotments used for utility, road, reserve, or access purposes) where removal of dry stone walls is proposed to be assessed as a Discretionary Activity.

Since the proposed subdivision has multi status activities, it is considered appropriate to assess this proposal using the practice of ‘bundling’ in this instance.

As such, the application is assessed overall as a Discretionary Activity.

Resource Management (National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health) Regulations 2011

The Resource Management (National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health) Regulations 2011 (NES Contaminated Soils) were gazetted on 13th October 2011 and took effect on 1st January 2012. Council is required by law to implement this NES in accordance with the RMA. The standards are applicable if the land in question is, or has been, or is more likely than not to have been used for a hazardous activity or industry and the applicant proposes to subdivide or change the use of the land, or disturb the soil, or remove or replace a fuel storage system.

In this instance, the proposal involves the sampling and disturbance of soil, subdivision of land, and a change of use of the site from previous HAIL activities (including horticulture) to more intensified residential activity. Regulation 5 defines a change of use of land as being ‘reasonably likely to harm human health’ where (inter alia) ‘an activity or industry described in the HAIL has been undertaken on it.’ The proposal therefore requires assessment under the relevant NES Regulations and associated activity type as outlined below.

The proposal is not a Permitted Activity as it fails to comply with Regulation 8(4)(a) and (b) below:

8(4) subdividing land or changing the use of the piece of land is a permitted activity while the following requirements are met:

a) preliminary site investigation of the land or piece of land must exist:

b) the report on the preliminary site investigation must state that it is highly unlikely that there will be a risk to human health if the activity is done to the piece of land:

The proposal is also not a Controlled Activity as it fails to comply with Regulation 9(3)(b) below:

9(3) if a requirement described in regulation 8(4) is not met, the activity is a controlled activity while the following requirements are met:

b) The report on the detailed site investigation must state that the soil contamination does not exceed the applicable standard in regulation 7:

The proposal is therefore classed as a Restricted Discretionary Activity in terms of Regulation 10 as it meets the requirements of Regulation 10 (2) which states:

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10(2) The activity is a restricted discretionary activity while the following requirements are met:

a) a detailed site investigation (DSI) of the piece of land must exist: b) the report on the detailed site investigation must state that the soil contamination

exceeds the applicable standard in regulation 7: c) the consent authority must have the report: d) Conditions arising from the application of subclause (3), if there are any, must be

complied with.

Regulation 10(3) sets out the following matters over which the council has discretion when assessing restricted discretionary activity resource consent applications.

a) the adequacy of the detailed site investigation, including i. site sampling, ii. laboratory analysis iii. risk assessment

b) the suitability of the piece of land for the proposed activity, given the amount and kind of soil contamination:

c) the approach to the remediation or ongoing management of the piece of land, including -

i. the remediation or management methods to address the risk posed by the contaminants to human health:

ii. the timing of the remediation iii. the standard of the remediation on completion: iv. the mitigation methods to address the risk posed by the contaminants to human

health: v. the mitigation measures for the piece of land, including the frequency and

location of monitoring of specified contaminants: d) the adequacy of the site management plan or the site validation report or both, as

applicable e) the transport, disposal, and tracking of soil and other materials taken away in the

course of the activity: f) the requirement for and conditions of a financial bond: g) the timing and nature of the review of the conditions in the resource consent: h) the duration of the resource consent.

The MFE ‘Users Guide: NES for Assessing and Managing Contaminants in Soil to Protect Human Health’ includes the following explanation of restricted discretionary activity applications under Regulation 10:

‘An application can be assessed as a restricted discretionary activity under regulation 10 if it does not meet the requirements of a permitted activity, and if a detailed investigation shows the soil contamination exceeds the applicable standard for the current or intended land use. The applicant must decide what to do to make the land safe for the current or intended land use.

There are two options:

1. remediate (clean up) the land to reduce the concentration of the contaminants to an acceptable level

2. manage the land to prevent exposure of people to the contaminants.

Resource consent is required for both these options.

If the site is to be remediated so the soil meets the applicable standard, the land use will be considered acceptable without ongoing restrictions. The resource consent will therefore specify the applicable standard to be met by the remediation, and the controls that must be put in place during the remediation activity to protect people’s health during the remedial works.

A landowner may elect not to remediate the land, for example, because the additional expense is not justified or if management controls can be implemented to ensure the risk to people is acceptable. Management controls could include containment of the contamination or behavioural controls that restrict the behaviour of occupants or residents of the land so exposure is minimised. In this case, the resource consent can specify how the applicable standard is to

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be met and maintained in the future, and may require restrictions to be put in place on activities that can take place on the land.

For some sites, a combination of remediation and management controls is the most appropriate form of risk management.’

The Environmental Site Investigation undertaken by ENGEO Limited reference 13278.000.000_04 dated 06.10.2016 submitted in support of the application and in accordance with the above requirements confirmed that the soil test results showed a number of samples across the site exceeding the applied threshold. That confirms the proposed subdivision and change of use is to be treated as Restricted Discretionary Activity.

The proposed approach for the subject site, as addressed in assessment of effects in this report, incorporates both remediation and management controls recommendation which will be imposed as condition of any consent should the Commissioner be of a mind to grant consent.

Notification, Submissions and Written Approvals

Notification

The application was assessed under Section 95B of the RMA which concluded that this application was to be processed as a limited notified application (Attachment 3).

The notification period started on 10 January 2018 and ended on 8 February 2018. The application was sent to all the properties (owners/occupiers) adjoining the accessway to the site and the relevant authorities providing services for newly created lots including:

• Heritage New Zealand

• Northland Health

• New Zealand Fire Service

• TK & MT Holdings as owners of Lots 6, 7, 8, and 9 Deposited Plan 513573

• Denise Patricia Beilby of 97 Austin Road, Maunu

• Stuart and Marie McKerrow of 95B Austin Road, Maunu

• Malcolm & Carol Tipton and William Cleary of 95A Austin Road, Maunu.

Following closure of the notification period, it was discovered that the copy of the application sent to TK and MT Holdings as owners of Lots 6, 7, 8, and 9 Deposited Plan 513573 was in error because Council’s system was not updated at the time of mailing this out on 22 December 2017 to demonstrate a recent change in ownership.

Consequently, copies of the application were sent to the correct owners and these parties were given a notification period of between 19 February and 16 March 2018 to make a submission. These include:

• Jean Catherine Draper of Lot 8 DP 513573

• Kane Fannin & Laura Kerrisk of Lot 7 DP 513573

• Henrietta & Tu-Tuia Sakey and Logan Mark Dobson of Lot 6 DP 513573

• Paul & Sharee Cunis of Lot 9 DP 513573

At the time of writing this Section 42A report, no submission was received from any of these property owners; however, it is noted that the notification period was yet to close.

Submissions

Council received six submissions; one in support, two neutral and three in opposition within the notification timeframe. These were from:

• Kevin & Denise Beilby of 97 Austin Road who supported the proposal but did not wish to be heard.

• Stuart McKerrow of 95B Austin Road opposed the application and wished to be heard in support of his submission.

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• William Bryan Cleary, Malcolm and Carol Tipton of 95A Austin Road opposed the application and wished to be heard in support of their submissions.

• Northland District Health Board was neutral in their submission and wished to be heard.

• Mike Butler on behalf of Heritage New Zealand forwarded a “expert advice” during the submission period, requesting that their comments were provided as an affected party.

Figure 5 below show the location of the opposing submitter’s site marked with a red star and the supporting submission with a blue star.

Figure 5: Site Location of Submitters

The application was sent by mail to the New Zealand Fire Service (NZFS) c/- BECA PO Box 6345, Auckland 1141 as an affected party on 22 December 2017. At closure of the submission

period on 8 February 2018, nothing was received from NZFS. As firefighting service is an important service for any new residential subdivision, a follow up email to NZFS was sent on 2 March 2018 seeking their stand on the proposal. A response to me on 7 March 2018 states:

“Fire and Emergency New Zealand will not be approving this subdivision at this stage as roading access and water requirements have not been met by the developers and planners. The access alongside Lot 3 especially does not meet minimum requirements of 4 metres for a subdivision with this number of Lots proposed”.

As BECA represents New Zealand Fire Service in dealing with consenting matters, the response was forwarded to them to coordinate a full submission on the proposed subdivision.

A summary of submissions is in Table 1 below. four submitters indicated that they wish to be heard in support of their submissions – see Attachment 5.

Table 1 – Summary of Submissions

Name Issues and Relief Sought Wish to be Heard

Dr Virginia McLaughlin of Northland District Health Board

Neutral

Issues:

• On-site effluent disposal - As the proposal will result in 12 new on-site effluent treatment systems and discharge field, advanced secondary treatment systems are therefore required. In addition, a cumulative effect of growing number of residential

Yes

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lots in the area should be assessed and considered;

• Drinking water – newly created residential lots are expected to harvest water for use instead of connection to Council water system. Therefore, NDHB has concern on the safety of water consumption from localised water harvesting.

Relief sought:

If consent is granted, condition of consent should address connection to Council’s reticulated water system.

Assessment under cumulative effects should also considered the impact of growth on the Raumanga Stream. As water and air discharges are under regional jurisdiction, an advice note must address this matter.

Kevin and Denise Beilby

Support the proposal.

Relief sought – grant consent

No

Stuart McKerrow Opposed the application.

Issues:

• Regularly ‘stop and backup’ to allow vehicle movement because of accessway standard.

• Quietness and pleasure of living in the area will disappear because of increased vehicle movement.

• Concern on potential cumulative effects if 95A Austin Road will be subdivided in future.

Relief sought – decline the application

Yes

William Bryan Cleary

Oppose the application.

Issues:

• Proposed accessway is presented in a form of Right of Way instead of Road to Vest.

• No agreement has been made to achieve pedestrian access as proposed.

• Subdivision should include boundary adjustments of Lot 1, 3 and 95A Austin Road to improve access to a road parcel.

• Level of access is inadequate.

• The proposed accessway should be constructed in accordance with the required standard for 8 and more users and the road must be vested with Council.

Relief sought – decline the application.

Yes – Malcolm

and Carol Tipton

will speak on his behalf

Malcolm and Carol Tipton

Oppose the application.

Issues:

• The accessway is too narrow and does not meet Council’s regulation.

• The proposed accessway must be catered for future use.

• Our rural amenity will be affected.

Yes

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• Cumulative effects will be significant and may affect the future subdivision of 95A Austin Road.

• Water supply has easement over 95A Austin Road and does not know the impact of supplying water to the additional 12 lots.

• Surface water has cause flooding on 95A Austin Road.

• Single lane loading has already created problems with the existing three users. Increased users will exacerbate the situation.

• Two accidents over the past couple of years due mainly to the width of the accessway.

• Fire services equipment will be affected due to the width of the accessway.

• 95A Austin Road will be rezoned Living 3 Environment from its Countryside Environment. Future use of this accessway will be increased to the standard of road to vest with Council.

Relief Sought – decline application.

Mike Butler on behalf of Heritage New Zealand

Neutral - presented as affected party comments

Issues:

• Historic heritage is a matter of national importance under Section 6(f) of RMA. It is therefore unlawful to modify or destroy the stone wall which has been confirmed as a heritage item.

• An authority to modify or destroy will be required from Heritage NZ.

Relief Sought – if consent is granted, an advice note must be included advising the consent holder that an authority to modify or destroy shall be obtained from Heritage NZ.

Not indicated

Craig Bain of NZ Fire Service

Not approving the proposed subdivision

Issues:

• Roading access and water requirements have not been met.

• Access alongside Lot 3 does not meet the minimum requirement of 4m for a subdivision with this number of proposed lots.

Relief sought – not given approval for proposed subdivision

Not indicated

Following closure of the submission period, the applicant’s agent wrote to the Council addressing several matters below that have arisen in respect to this proposal:

• Council has rezoned land along Austin Road, which included this property, from Rural H to Living 3.

• Applicant relied on the Traffic Assessment report by Engineering Outcomes which confirmed that access using 4m wide has acceptable effects.

• Discussion were held between the applicant and owners/occupiers of 95A & B Austin Road who opposed the application on unfair grounds.

• Comments and views of the applicant’s agent on Council’s position in respect of the proposed accessway inclusion arguments supporting their view.

• Parties with legal standing in the current proceeding i.e. serving the application on Northland District Health Board and others as affected person.

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• Error in the Section 95 - Notification Report by Council arguing that the properties adjoining the accessway on the north are not affected.

Council responded to the above matters advising that historical zone changes including past subdivisions along Austin Road would be fully provided at the hearing to assist the Commissioner. Clarification on this was also discussed in an email dated 16 February 2018 in response to some of the above matters. These are provided in Attachment 4.

Historical changes to land zoning along Austin Road and all the approved subdivisions since 1998 are included in Attachment 6.

Written Approval

The application as lodged contained what the application described as the written approval of Northpower Limited as required by Rule CEL.1.4 of the Whangarei Operative District Plan. This rule requires that for all subdivision within 32m of the Critical Electricity Line, written approval of the Network Utility shall be obtained. In this case, the perceived written approval is a letter stating Northpower’s requirements in respect of the CEL provisions of the District Plan and the proposed subdivision.

Northpower requested that (1) an easement in gross be created and shown on the survey plan for Lots 5, 6 and 7 for the ‘Right to Convey Electricity, Telecommunication and Computer Media’; and (2) an easement in gross shall also be required over the proposed access A, B, and C.

The requirements can be included as consent notices of any consent if the Commissioner is minded to grant consent.

Resource Management Act 1991- Statutory Considerations and Decision Making Framework

Section 104

The proposal is subject to Section 104 which provides the matters, subject to Part 2 of the Act that Council must have regard to when considering an application for resource consent and any submissions received.

The proposal is also subject to Section 104B which outlines Council’s powers when deciding on a discretionary or non-complying activity whereby a consent authority:

(a) May grant or refuse the application; and

(b) If it grants the application, may impose conditions.

Section 106

A consent authority may refuse to grant a subdivision consent, or may grant a subdivision consent subject to conditions, if it considers that—

a. there is a significant risk from natural hazards; or

b. [Repealed]

c. sufficient provision has not been made for legal and physical access to each allotment to

be created by the subdivision.

Actual and Potential Effects on the Environment (s104(1)(a)

Definition of Effect

Section 3 of the Act defines the term ‘effect’ as including –

(a) any positive or adverse effects; and

(b) any temporary or permanent effect; and

(c) any past, present or future effect; and

(d) any cumulative effect which arises over time or in combination with other effects – regardless of the scale, intensity, duration, or frequency of the effect, and includes-

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(e) any potential effect of high probability; and

(f) any potential effect of low probability which has a high potential impact.”

Permitted Baseline

In terms of determining whether the adverse effects of the proposal are more than minor, section 104(2) of the Act provides that Council ‘may’ have regard to the permitted baseline for effects on the environment that are permitted under the Plan (or by way of resource consent) to be disregarded.

There are legal buildings on the site for residential activities which would be located in proposed Lots 9 and 12.

There are no permitted forms of subdivision under the Operative Whangarei District Plan, and therefore the standards for land use activities within the Living 3 Environment may be relevant to the consideration of this application. In this Environment, the construction of a residential unit can be considered a permitted activity if it meets all the relevant rules set out in Chapter 36 of the Council’s Operative District Plan.

As the ‘permitted baseline’ is a discretionary matter under Section 104(2) of the RMA, it is my view that the permitted baseline consideration cannot be accurately applied in this instance for the following reasons:

(a) The main issue of contention is the adequacy and safety of access serving the proposed allotments.

(b) The requirements and standards set out in respect to the subdivision rules of the Operative District Plan are sufficient to determine the outcome of this proposal. Therefore, we do not need to go deeper in setting a baseline for where effects assessment starts.

Therefore, based on the above comments, I recommend that any consideration of the permitted baseline be set aside in this instance.

Assessment of Effects

The following effects assessment is undertaken by un-bundling the ‘Discretionary Activity’ status into relevant matters under which Council’s control and discretion are limited and restricted to under various subdivision Controlled and Restricted Discretionary activities status.

The assessment will also revisit Council’s original Section 95 report to ascertain whether the conclusion on effects in that decision remain minor but not less than minor.

The following assessment will begin with the assessment of the proposed subdivision under the NES Contaminated Soils as a Restricted Discretionary Activity.

NES Contaminated Soils

In terms of effects of soil contaminants under the NES, the matters over which Council’s discretion is restricted, as listed in Regulation 10 are assessed in the following table:

Table 2: Assessment in accordance with Contaminated Land Management Guideline (CLMG)

Matters of discretion Assessment Acceptable

or Not

(a) the adequacy of the detailed site investigation, including –

(i) site sampling: (ii) laboratory

analysis: (iii) risk assessment:

Site sampling and analysis have been carried out by suitably qualified professionals (ENGEO) in accordance with the NES requirements. The site investigation is in section 6 of ENGEO Environment Site Investigation (ESI) dated 06.10.2016.

Acceptable

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Sections 7 and 8 of ENGEO’s ESI summarise the relevant soil contamination issues, while recommending conditions requiring that soil remediation and management be undertaken in accordance with the ESI and RAP including a Site Validation report.

(b) the suitability of the

piece of land for the proposed activity, given the amount and kind of soil contamination:

Soil contamination has been assessed as relating to sample areas in figure below, requiring some remediation or appropriate management. The ESI report concludes that resource consent for a restricted discretionary activity should be granted subject to the recommended conditions.

Acceptable

(c) the approach to the

remediation or ongoing management of the piece of land, including— (i) the remediation

or management methods to address the risk posed by the contaminants to human health:

(ii) the timing of the remediation:

(iii) the standard of the remediation on completion:

(iv) the mitigation methods to address the risk posed by the contaminants to human health:

(v) the mitigation measures for the piece of land, including the frequency and location of monitoring of specified contaminant.

Remediation and on-going management is intended to proceed in accordance with the recommendations listed in the ESI and required Remediation Action Plan (RAP) and Site Validation Report (SVR).

As pe As per NES requirements, it is stated in the RAP that remediation of the site and the Site Validation report shall be submitted to Council for approval before any subdivision activity starts.

Note that when compliance is confirmed (with the SCShealth for the proposed Residential with 10% produce consumption land use scenario/standard), a Site Validation report (SVR) shall conform with this. (Note: assessment of the SCShealth

involves health-based trigger values and remediation targets). **

Acceptable

(d) the adequacy of the site management plan or the site validation report or both, as applicable:

All works will be required to be undertaken in accordance with the ESI prepared by ENGEO including the associated RAP and the required validation report and other recommended conditions of this resource consent.

Acceptable

(e) the transport, disposal, and

Disturbed soil will be transported offsite to an approved landfill and in accordance with

Acceptable

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tracking of soil and other materials taken away in the course of the activity:

the RAP. A recommended condition relates to the control of dust nuisance both on-site and beyond the site boundaries shall also be imposed.

(f) the requirement for and conditions of a financial bond:

The need for a financial bond may be required. Given that verified site remediation is essentially a pre-requisite for the subdivision and associated development to proceed, and the works are required to be undertaken before any subdivision activity starts, a bond is not deemed necessary in this instance.

Acceptable

(g) the timing and nature of the review of the conditions in the resource consent:

There is the opportunity under s128 of the RMA for conditions to be reviewed by Council. In this case, it is considered appropriate to review the conditions of consent following the outcome of the validation report to deal with any adverse or unpredicted effect identified in that report.

Acceptable

(h) the duration of the resource consent.

The normal 5-year lapse period for resource consent applies, and no alternative lapse period has been requested in the application. Furthermore, the ESI report does not identify any contaminant-related or other issues of concern warranting an alternative duration condition.

Acceptable

** Note: 1. Health-based trigger values – SCSs(health), represent a human health risk threshold above

which: a. The effects on human health may be unacceptable over time; b. Further assessment of a site is required to be undertaken.

2. Remediation targets – SCSs(health), represent the maximum concentrations of contaminants at or beneath which land is considered ‘safe for human use’ and the risk to people is acceptable.

Figure 5: ENGEO Sampling Design

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Based on the above assessment it is concluded that the adverse effects of the proposal on the environment associated with soil contamination within the site are acceptable in terms of the matters to which Council’s discretion is restricted, given the sampling undertaken, proposed remediation, and management controls.

Conditions of any consent, if the Commissioner is minded to grant consent, will address the above requirements.

Amenity Values

Amenity consists of two components; one is ‘amenity attributes’ which are tangible matters such as noise, odour, density or shading and the other involves ‘perceptions and expectations’ which are more intangible values which individuals and communities hold to their neighbourhoods such as their own perceptions of noise, culture, desires and tolerance. The District Plan identifies the Living Environments tending to be passive environments where people relax and interact with each other on a social basis. In general, they have high levels of amenity because of a combination of some or all the following characteristics:

• Low intensity development;

• Presence of trees and private gardens;

• Landscaped frontages and street setbacks;

• Off-street parking;

• High degree of privacy;

• Daylight and sunlight access;

• A high proportion of private and public open space;

• Low levels of noise, visual pollution, odour and nuisances; • Safe environment for children, cyclists and pedestrians;

• Low levels of vehicular traffic;

• Feeling of community;

• Non-residential support activities, such as business and community activities, of an appropriate scale

In the residential areas, incompatible activities to residential use with associated nuisance e.g. noise, odour, dust, etc. can adversely affect the amenity values expected of residential areas. The amenity values of an area are therefore determined by the natural and physical characteristics of the area, and the effects of activities. In this instance, the proposal is for a subdivision of the site into residential lots that are in accordance with the required density of the Living 3 Environment. It is noted however that there are three rules in Living 3 Environment that specifically reference ‘amenity’ as matter under which Council has controlled over. These are assessed as follows:

Rules Assessment Matters (Control)

Assessment

Rule 71.3.1 Allotment Areas stipulated that - for controlled subdivisions, every newly created allotment shall have a net site area of at least 2,000m².

The likely location of future buildings and their potential effect on the amenity of the locality.

In my view, there are no identified impediments that may cause adverse visual amenity effects as the site is relatively flat. There are no lots less than 2,000m² in net area. Furthermore, the site is located away from Austin Road, future built development is therefore remotely situated from viewing from vantage points.

The efficient provision of services to the land being subdivided and to nearby land that might be subdivided in future.

Services could be provided to service each proposed lots provided appropriate conditions are imposed. However, the exception to this is that access is considered to not be sufficient to service the proposed

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subdivision and may not be considered sufficient for the potential creation of 20 addition lots for the adjoining land, 95A Austin Road, if it is subdivided in future. Cumulative effect is therefore considered more than minor which will be discussed further under ‘Access’ rule.

Rule 71.3.3 Allotment Shape requires subdivision to create lots capable of containing, within net site area, a circle with a diameter of 16m or a square of at least 14m by 14.

The ability to site a building permitted under this Plan.

All proposed lots exceed 2,000m² in area and with the site being relatively flat, these dimensions will be met.

Provision for safe and practical vehicular access to allotments.

The accessway linking Austin Road and the proposed allotments is not safe and is considered impractical. This will be discussed further under the ‘Property Access’ rule. Meanwhile, the proposed internal access via proposed Access Lots 100 and 101 is considered satisfactory.

Amenity values of the locality.

Considering this proposed subdivision within the context of recently approved subdivisions in the neighbourhood, it will not complement the amenity values resulting from those approved subdivision. This is because of the substandard access connecting the proposed lots and Austin Road. However, it is noted that given its location being remotely situated away from viewing along Austin Road, that in itself provides some form of mitigation measure for other effects of the subdivision on amenity values.

Rule 71.3.5 Existing Buildings requires subdivision to draw boundaries in compliance with existing building and in compliance with Road Transport Chapter 47.

Effects on amenities, both on site and on neighbouring properties, including other allotments in the subdivision.

The proposed boundaries around existing buildings do not result in non-compliance with the bulk and location rules of Living 3 Environment. The proposed subdivision will not affect the amenity of the area in this sense.

Based on the above assessment of matters under which Council has control over in respect of amenity values, it can be concluded that on balance, and subject to conditions of any consent, the effects are minor.

Services and Infrastructure

Following is an assessment of other services and infrastructure which are assessed as controlled activities under the relevant rules.

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Rules Assessment Matters (Control)

Assessment

Rule 71.3.4 Building Areas requires each created lot having an identified building area of 100m².

Council’s control is limited on – earthworks, parking, loading, access, natural hazard, road noise etc.

With the topography of the site being relatively flat and with lot sizes exceeding 2,000m², building areas of 100m² can be accommodated. Therefore, it is unlikely that the location of potential built development on proposed lots will adversely affect the neighbourhood.

Rule 71.3.12 Water Supply requires all lots to have connection to Council maintained water supply if available; must meet Council’s EES; and if Council system is not available, safe portable water supply must be provided.

i. The availability of sufficient water to each allotment for the likely land use;

ii. Supplies of water for

firefighting purposes;

iii. Water infrastructure within the subdivision, and linkage with existing supply systems outside

the subdivision;

iv. Where there is no Council-reticulated water supply, the safety and reliability of any proposed

water supply;

v. The need for land to be set aside and vested in the council as a site for any public water supply;

vi. The relevant provisions of

Appendix 9 and the

Whangarei District Council’s Environmental Engineering Standards 2010

The applicant has advised Council’s water supply is located 120m from the site and with the high cost of extending that to the site, it is proposed individual potable water supply will service its individual lot. It is noted however that as confirmed by Council’s Development Engineer that Council’s reticulated water supply is actually 50m to the north of at the entrance of Queen Pal Lane. It is also proposed to establish a communal water supply for fighting purpose.

The applicant proposed a consent notice to that effect. Council’s Senior Development Engineer has the following comment on water supply:

▪ Provided with the application, site suitability report reference 15177 compiled by Richardson Stevens Consultants Ltd dated 5/06/2017 stated that alternatively, onsite water supply may be used. This design must be adequate for firefighting purposes and the design shall conform with the New Zealand Fire Service Fire Fighting Water Supplies Code of Practice SNZ PAS 4509:2008.

▪ The application stated that proposed lots will rely on onsite water supply and on the latest Cook Costello amended preliminary scheme plan ref: 13082 rev. D dated 02/05/2017 the area marked ‘G’ is dedicated for a communal water tank for firefighting purposes.

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▪ However, it should be noted that Mr Craig Bain from Fire and Emergency New Zealand stated in his email dated 7 March 2018 that: “Fire and Emergency New Zealand will not be approving this subdivision at this stage as roading access and water requirements have not been met by the developers and planners. The access alongside Lot 3 especially does not meet minimum requirements of 4 metres for a subdivision with this number of Lots proposed”.

It is noted that Northland District Health Board in their submission are concerned about the safety of domestically harvested water.

Further assessment of this matter is considered together with ‘Property Access’.

Rule 71.3.15 Other Significant Features requires boundaries of all lots are drawn relative to significant or notable features; building areas are created away from identified significant features and these features are permanently protected.

i. Effects on allotment boundaries and/or identified building areas on the integrity of the significant features;

ii. Methods of permanent protection of significant features;

There are no identified significant or notable features on the site except the stonewalls along the accessway to the proposed subdivision site. I will return to discuss this in detail under the BH.1.8.4 rule assessment.

Rule 71.3.18 Earthworks requires subdivision to ensure all earthworks comply with relevant standards in the EES; impact of natural range of water level, natural eco-system of flora and fauna; no earthwork on site of significance to Maori or within 10m of any archaeological site or Outstanding Landscape Area.

i. Machinery to be used and hours of operation;

ii. Effects on the locality; iii. Effects on ecological,

heritage and landscape values;

iv. Effects on water bodies, including indigenous wetlands;

v. The relevant provisions of the EES

While it is likely that any future earthworks will not affect any water bodies or indigenous wetland, and conditions of any consent will ensure compliance with the EES, any improvement works on the accessway will occur within 10m of the stonewalls and as such will have an impact. I will discuss this further under the BH.1.8.4 rule of the District Plan.

Based on the above assessment, it is concluded that any effects created by the proposed subdivision for not meeting the controlled activities status are minor because the conditions of any consent are anticipated to adequately address any non-compliance; except where there is an interaction with provision of access.

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In assessing matters over which Council’s discretion are restricted to under the following rules, it is anticipated that the relevant conditions of any consent will address them. These include Rule 71.3.10 – Street Lighting, Rule 71.3.13 – Stormwater, Rule 71.3.14 Sewage, Rule 71.3.16 Electricity, Rule 71.3.17 – Telecommunication, and Rule CEL.1.4.

Note that I will undertake a separate assessment of Rule 71.3.8 – Property Access because of its influence on making an overall and balanced conclusion on effects.

Additionally, and in respect to the above matters, Council’s Senior Development Engineer reviewed the application, the Subdivision Suitability Report by Richardson Stevens reference 15177 dated 9 June 2017, and the Assessment of Traffic Effects by Engineering Outcomes dated 15 November 2017 provided in support of the application. He provided the following comments (see Attachment 7):

Telecommunications and Power

• It is understood that the existing dwellings on proposed Lots 9 & 12 are already provided with power and telecommunication connections. All proposed lots will be provided with all lots with power and telecommunication connections; therefore, addresses Rule 71.3.16 Electricity and Rule 71.3.17 Telecommunications.

Earthworks

▪ Minor earthworks will be required for building site preparation, services and vehicle access.

Roading

▪ Austin Road is classified as a local road with a sealed surface in the proposed vehicle access with a speed environment of between 60 to 70 km/h requiring sight lines of 55 to 85m.

▪ It is noted that Assessment of Traffic Effects compiled by Mr Dean Scanlen from Engineering Outcomes Ltd dated 27 April 2016 has been provided to support the proposal, and address sight visibility issues on Austin Road, as current sight distance towards the southwest is very limited.

▪ Further to my discussion with Council’s Senior Roading Engineer Mr Nick Marshall and our original concerns we requested some additional information to be provided. And Peer Review of Assessment of Traffic Effects complied by Road Safety Engineer Mr David Spoonley from NCC Consulting Engineers dated 31 August 2017 has been provided.

▪ And further to some discussions with the agent an additional Assessment of Traffic Effects compiled by Mr Dean Scanlen from Engineering Outcomes Ltd dated 15 November 2017 has been provided to support the proposal.

▪ Overall it is considered that with proposed mitigation works on the Austin Road (some cutting on the opposite road bank and footpath replacing), the potential effects of the proposal on the existing roading network to be less than minor in this case.

Access

▪ All proposed lots lead into an existing singled-lane shared access and entrance that leads onto the eastern side of Austin Road.

▪ It is noted that Assessment of Traffic Effects compiled by Mr Dean Scanlen from Engineering Outcomes Ltd dated 27 April 2016 has been provided to support the proposal includes recommendations for the construction of the carriageway.

▪ Original Traffic Assessment stated that proposed subdivision will increase the number of lots that use the access from four to fourteen. It is also stated that the proposed access Lot 100 is only 4.0metres wide and there is no scope for widening of the access. However, the access Lot 100 is proposed to be sealed, new speed control devices (small humps) are proposed in four locations and two “shared space” signs are also proposed to limit potential effects.

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▪ Further to our request a Peer Review of Assessment of Traffic Effects complied by Road Safety Engineer Mr David Spoonley of NCC Consulting Engineers dated 31 August 2017 has been provided.

▪ And further to some discussions with the agent an additional Assessment of Traffic Effects compiled by Mr Dean Scanlen from Engineering Outcomes Ltd dated 15 November 2017 has been provided to support the proposal. It is now proposed that the access to be widened to two lanes, plus a footpath, speed humps in two locations and two “shared space” signs are also proposed to limit potential effects.

▪ However, it is noted that proposed two lanes will be divided in the middle by the existing rock wall and access width of 10m can be provided only approximately for the first 70 m from the Austin Road, and, then access will start to get more and more narrow, and become only 4m wide at the 100m chainage and will continue as a single lane.

▪ The proposed vehicle entrance crossing can achieve acceptable sight lines.

▪ Overall the proposed number of 15 users (3 other driveways, each from a single house and lot, and 12 proposed lots) will require access to be constructed to the most appropriate minor residential road standard in accordance with Table 3.1 Category B (18m minimum reserve width) or alternatively Table 3.2 Class A (20m minimum reserve width) standards of WDC Environmental Engineering Standards 2010 Edition.

▪ Based on all information provided, in my professional opinion, the proposed access arrangements cannot be considered safe and appropriate and potential effects on pedestrian and traffic safety can be more than minor in this case.

On-site parking & manoeuvring

▪ The proposed lot sizes and configuration are able to comply with Rule 47.2.1 Parking and Loading including Appendix 6A of the District Plan and Section 3.4.18 and Sheets 26, 27, 28 of Council’s Environmental Engineering Standard 2010.

Wastewater

▪ All lots will require onsite treatment and disposal as there is no public system available for connection; therefore, the application complies with Rule 71.3.14 Sewage.

▪ It is stated that dwellings on proposed Lots 9 & 12 are already rely on existing on site sewer disposal system.

▪ An engineering site suitability report reference 15177 compiled by Richardson Stevens Consultants Ltd dated 5/06/2017 has been submitted in support of this application, this report stated that proposed lots would provide sufficient space for onsite wastewater disposal, however a specific report and design should be undertaken for each lot at a building consent stage. These recommendations will be included as part of a consent notice that will be registered on the Computer Freehold Register of the subject lots.

Water Supply

▪ It is stated that dwellings on proposed Lots 9 & 12 are already rely on existing onsite water supply and no changes proposed to already existing arrangements.

▪ Council’s reticulated water supply is located approximately 50m to the north along Austin Road at the entrance to Quinn Palm Lane. And, with 50m extension of Council’s reticulated water supply system, all proposed lots can be connected to Council’s reticulation; therefore, the application complies with Rule 71.3. 12 Water Supply.

▪ Provided with the application, site suitability report reference 15177 compiled by Richardson Stevens Consultants Ltd dated 5/06/2017 stated that alternatively, on site water supply may be used. This design must be adequate for firefighting purposes and the design shall conform with the New Zealand Fire Service Fire Fighting Water Supplies Code of Practice SNZ PAS 4509:2008.

▪ The application stated that proposed lots will rely on onsite water supply and on the latest Cook Costello amended preliminary scheme plan ref: 13082 rev. D dated

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02/05/2017 the area marked ‘G’ is dedicated for a communal water tank for firefighting purposes.

▪ However, it should be noted that Mr Craig Bain from Fire and Emergency New Zealand stated in his email dated 7 March 2018 that: “Fire and Emergency New Zealand will not be approving this subdivision at this stage as roading access and water requirements have not been met by the developers and planners. The access alongside Lot 3 especially does not meet minimum requirements of 4 metres for a subdivision with this number of Lots proposed”.

Stormwater

▪ As there is no Council reticulated stormwater system in this locality, it is proposed that the surface water will be collected and discharged to ground within the boundaries of the respective lots; therefore, this proposal complies with Rule 71.3.13 Stormwater.

▪ It is noted that existing dwellings on proposed Lots 9 & 12 are already rely on existing onsite stormwater disposal and no any changes proposed for already existing arrangements.

▪ It is noted that engineering suitability report ref: 15177 compiled by Richardson Stevens Consultants Ltd dated 9 June 2017 provided to support the proposal, recommends that no stormwater attenuation is required as part of the underlying subdivision, as removal of existing impervious surfaces will offset the proposed impervious surfaces created by the subdivision development. However, it is stated that stormwater attenuation will be required for new residential dwellings on proposed lots at the building consent stage.

Council’s SDE concluded overall that the application has effects in regards to engineering aspects which are more than minor and he would not support the proposal as presented.

Following is the full assessment of matters over which Council’s discretion are restricted to under Rule 71. 3.8 – Property Access.

Rules Assessment Matters (Control)

Assessment

Rule 71.3.8 Property Access requires subdivision to be assessed as controlled if (a) Every allotment is capable of having vehicular access to a road; and (b) Access shall be provided where it is shared by 2 or more allotments; and (c) The access complies, in all respects, with the relevant standards in Whangarei District Council’s Environmental Engineering Standards 2010 and the relevant provisions in Appendix 9; and (d) No more than 8 allotments, or 8 residential units, are served by a shared access. The proposed subdivision does not comply with these requirements.

The need for access to the

allotment;

The scheme plan shows provision of access to the proposed allotments. However, the question remains as to whether the standard of the proposed access is considered adequate in this instance? This is further discussed below.

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The safe and efficient

movement of people, vehicles

and goods;

Engineering Outcomes report states “The full visibility along the access and relatively short distance along which it is only a single lane will ensure opposing vehicles will almost never, probably never, have to reverse along the access. It is also noted that, even at full development of the subdivision, the average hourly traffic on the access will be in the order of one movement every 6 minutes or one every 12 minutes in each direction. An average vehicle will only need 6 to 7 seconds [sic] to travel the length of the access, so meetings will continue to be rare even with the subdivision at full development”. This report was reviewed by David Spoonley of Northern Civil Consulting Engineers Limited (NCC) who commented that “the calculation concerning the frequency of use of the private accessway and the likelihood of vehicle meeting are largely discounted as vehicle movements are to a greater degree random. However, it is likely that there will be an outflow of traffic over a relatively short period at the start of the working/school day and similar inflow at the end of the working/school day…the proposed arrangement to access 15 domestic dwellings via a 2.8-3.2m wide, 180m long accessway without indivisibility cannot be considered a safe or appropriate arrangement”. The submission by the Tiptons indicated there were two vehicle accident along this accessway in recent time. Furthermore, the NZ Fire Service cannot approve this subdivision due to the standard of the accessway. Therefore, the effects of the proposal on the safe and

efficient movement of people, vehicles and

goods; are more than minor.

The ability of the road structure to withstand anticipated loads.

It is unknown at this stage whether the existing accessway can withstand additional loads from rubbish trucks as well as firefighting equipment that will service the proposed additional residential lots. However, a condition of any consent will ensure any upgrade will require to meet the road standards of Council’s EES should the Commissioner be of a mind to grant consent.

The effects of

water runoff.

If the proposed accessway is not improved and constructed in accordance with standards in Council’s EES, it is likely the effects of water runoff as a result of compaction due to increased use is anticipated to be significant.

The Tipton submission commented that their property at 95A Austin Road has been

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flooded occasionally due to water runoff from the access and the subject site.

The relevant provisions of the Whangarei District Council’s Environmental Engineering Standards 2010.

The peer review by NCC of the Assessment of Traffic Effects submitted in support of the proposal commented that “The overall effects of this arrangement are considered to be more than minor as;…. The proposed arrangement does not offer an arrangement that complies with WDC EES”. Moreover, Council’s SDE commented that “Overall the proposed number of 15 users (3 other driveways, each from a single house and lot, and 12 proposed lots) will require access to be constructed to the most appropriate minor residential road standard in accordance with Table 3.1 Category B (18m minimum reserve width) or alternatively Table 3.2 Class A (20m minimum reserve width) standards of WDC Environmental Engineering Standards 2010 Edition”.

The adequacy of the access for the anticipated use.

Refer comments above which confirmed that proposed accessway is inadequate for the anticipated use.

The ability of the access to contain required services.

It is obviously clear the limited width of the accessway and the number of proposed residential users will result in an anticipated failure to contain the stormwater, sewage, water and other required services.

Traffic safety and visibility.

The peer review confirmed the proposed accessway visibility to be limited and therefore not safe. Council’s SDE also commented that “Overall the proposed number of 15 users (3 other driveways, each from a single house and lot, and 12 proposed lots) will require access to be constructed to the most appropriate minor residential road standard in accordance with Table 3.1 Category B (18m minimum reserve width) or alternatively Table 3.2 Class A (20m minimum reserve width) standards of WDC Environmental Engineering Standards 2010 Edition”. He went on to conclude that -

“Based on all information provided, in my professional opinion, the proposed access arrangements cannot be considered safe and appropriate and potential effects on pedestrian and traffic safety can be more than minor in this case”.

The need for acceleration and deceleration lanes.

Acceleration and deceleration lanes cannot be achieved because of the proposed width of the accessway and the restriction for improvement created by historical stonewalls running along both sides of the accessway.

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Type, frequency and timing of traffic.

The peer review by NCC C clarified that –

“WDC has no traffic standard generation per residential dwelling, NZTA Research Report 453 (Trips and parking related to land use, November 2011) indicates a daily trip generation of 10.1 daily trips per day for a rural residential dwelling. This is at the upper end of the 9-10 daily trips used in the Assessment of Traffic Effects. The Assessment of Traffic Effects assesses the traffic generation as being 100-110 daily traffic movements. This figure appears to be based upon the additional traffic using the access to Austin Road not the total traffic using the access to Austin Road. The total daily traffic using the access is 15 x 10.1 = 151.5 traffic movements per day”.

Access design, number and location of vehicle crossings.

The vehicle crossings along the accessway into 95A & 95B Austin Road do not meet the Council’s EES standards. Crossings into the proposed lots are anticipated to meet the standards of Council’s EES through conditions of any consent if the Commissioner is of a mind to grant consent.

Efficiency and safety of roads.

The intersection of the accessway with Austin Road can be improved and is anticipated to be safe and efficient.

Need for forming or upgrading of

roads in the

vicinity of the site.

The Assessment of Traffic Effects report submitted in support of the application includes a proposed upgrading of the intersection between Austin Road and the accessway.

Need for traffic control, including signs, signals and traffic islands.

The proposal also includes proposed signs for safe speed. However, the proposed traffic control is not anticipated to be sufficient to mitigate the adverse effects created by a non-complying accessway serving the proposed subdivision site.

Overall, the traffic effects are assessed as more than minor.

It is noted that Dean Scanlen of Engineering Outcomes who provided an Assessment of Traffic Effects dated 15 November 2017 concluded overall that:

“Overall, with the proposed improvements to the access and sight distance improvements on Austin Road west of the proposed entrance, it is concluded that the traffic effects of the proposal will be well within acceptable limits and that there are no traffic-related impediments to the granting of consent. In fact, the proposed improvements will result in significant betterment for traffic in this locality.”

The above conclusion is at odd with the full assessment on matters over which Council’s discretion are restricted, which concluded overall that the traffic effects are more than minor. The above traffic effects conclusion is also supported by Council’s Senior Development Engineer and NCC Consulting Engineers Ltd’s engineer who peer reviewed the Assessment of Traffic Effects by Engineering Outcomes.

Furthermore, the assessment of the proposal as a Discretionary Activity under the Provision for Extension of Service (Rule 71.3.11) can also be drawn from the above assessment matters

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which is concluded as more than minor because of the failure of the proposal to provide adequate accessway for the proposed lots and to provide sufficient provision of services for future subdivision of the adjoining land.

Effects on Stonewalls

The accessway to the site is flanked mostly on both sides by historical stonewalls. The affected party comments by Heritage New Zealand confirmed the stonewalls as an archaeological site and will require an authority from Heritage NZ prior to any modification.

Historic heritage is a matter of national importance under Section 6(f) of the RMA; historic heritage includes archaeology. Therefore, effects of the proposal on the archaeological site (stonewalls) shall be carefully considered that it will not be significantly impacted on to a level where such and archaeological site is severely damaged.

The application commented on the effects of the proposal on the removal of approximately 6m of stonewall that “this widening could be undertaken as a permitted activity under Rule BH.1.7.11(b) of the WDP, and accordingly there will be no effects … notwithstanding the permitted baseline, as the stonewall extends along the entire length of the western boundary of Lot 1 DP 211132, a certain level of disturbance to the wall is inevitable in order to facilitate access to the proposed subdivision.”

The ‘Earthworks’ (Rule 71.3.18) clearly states that “no earthwork on site of significance to Maori or within 10m of any archaeological site”; however, the accessway is only 4m wide. Ten-metre buffer ensures avoidance on any impact of earthworks on the stonewall.

It is my view therefore the adverse effects of the proposal on the stonewall (archaeological site) is assessed as more than minor.

Cumulative effects

Cumulative effects are referred to in the definition of ‘effect’ in Section 3 of the RMA as effects that can build up over time or occur in combination with other effects. In this instance there is the potential for cumulative effects to arise with regard to effects on traffic access and a change in character. Assessing a cumulative effect is limited to the consequences of granting a particular application. For a cumulative effect to be significant, it must have breached a threshold, or ‘tipped the balance’.

Considering the above assessment, if this proposal is approved, there will likely to be:

• significant impact of the proposal on the stonewalls (archaeological site) which the application confirmed there has been progressive damages on them in other parts of Austin Road due to prior developments;

• increased number of users of the accessway while its standard is unlikely to improve which will make it more unsafe, more water run-off, unable to safely contain infrastructural services, create inconvenience to movements of existing users, etc.

• the future rezoning of adjacent land into Living 3 Environment will demand more safer and effective access.

As such I consider that the proposal will ‘tip the balance’ where cumulative effects arising from it will be more than minor.

Conclusion on Effects Assessment

In conclusion, it is considered overall and on balance, that the effects of the proposal on the environment will be more than minor. The reasons are summarised as follows:

• Note that Council cannot refuse consent with a ‘controlled activity’ status, conditions of any consent will therefore be required to avoid, remedy or mitigate any identified adverse effects. The above assessment concluded after assessing matters over which Council’s control is limited and after considering possible imposition of relevant consent conditions, the effects will be minor.

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• Note that Council restricts its assessment of the proposal against the matters as required for ‘restricted discretionary activities’. The above assessment largely considered that appropriate conditions of any consent may render the effects of the proposal minor. However, Council can still assess and refuse consent of ‘Restricted Discretionary Activity’ status if at the end and on balance considers the overall effects to be more than minor.

• Note that the assessment of the Property Access (Rule 71.3.8) affecting the proposal as a ‘Restricted Discretionary Activity’ was undertaken in detail separately to determine the level and magnitude of effects. It was concluded that traffic effects associated with the accessway are more than minor.

• Note that the adverse effects associated with the accessway in respect to traffic issues outweigh the minor effects as assessed on amenity and other relevant services.

• Note that effects of the proposal on the archaeological site and extension of service as full discretionary status concluded that the they are more than minor.

• Note also that the ‘cumulative effects’ as assessed are more than minor.

Relevant Policy Statements, Plans or Proposed Plans (s104 (1)(b))

Statutory Gateway Test

Section 104D(1)(b) directs that Council consider whether the proposed activity will not be contrary to the objectives and policies of the relevant plans.

The meaning of ‘contrary’ was considered in the decision of Monowai Properties Ltd V Rodney District Council (A215/03) where it was established:

“A non-complying activity will rarely, if ever, find direct support in the objectives and policies of a Plan but an absence of support does not equate to the activity being contrary to those provisions. Contrary to in this context means... repugnant to... or opposed to... the objectives and policies considered as a whole”.

The following sections assess the proposal against the relevant objectives and policies of the relevant plans for the subject site. These being:

• Northland Regional Policy Statement

• Operative Whangarei District Plan

• Proposed Rural Plan Change (discussed later in this report)

Operative Regional Policy Statement for Northland (RPS)

The Regional Policy Statement for Northland (RPS) contains high level policy guidance for the development of lower order statutory documents, including the Regional Soil and Water Plan, and the District Plan. The Resource Management Act 1991 requires that district plans must “give effect to” the regional policy statement of a region and must “not be inconsistent” with regional plans.

The content of the RPS is reflected in and given effect to through the provisions of the Whangarei District Plan and as such the relevant matters are considered further in subsection 7.4.

It is considered the more relevant provision in this instance is Policy 5.1.1 Planned and Co-Ordinate Development of the RPS which seeks, amongst other things, to ensure that:

Subdivision, use and development should be located, designed and built in a planned and co-ordinated manner which:

(c) Recognises and addresses potential cumulative effects of subdivision, use, and development, and is based on sufficient information to allow assessment of the potential long-term effects of development; and

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(g) Maintains or enhances the sense of place and character of the surrounding environment except where changes are anticipated by approved regional or district council growth strategies and / or district or regional plan provisions.

While subdivision in the Living Environment is expected to be in general compliance with standards promoted in the District Plan ensuring the amenity values of residential are maintained and enhanced, cumulative effects shall be avoided, remedied or mitigated.

In this instance, it is concluded at the effects assessment that cumulative effects are more than minor.

Overall, the proposal is not considered to be wholly consistent with the RPS (as given effect to through the Whangarei District Plan), as required to be considered under Section 104(b)(v).

Operative Whangarei District Plan

Those objectives and policies of relevance to the proposal are included within Chapter 5 ‘Amenity Values’, Chapter 8 ‘Subdivision and Development’, Chapter 22 ‘Roading Transport’, and ‘Built Heritage’ Plan Change. Full copies of these chapters are in Attachment 9.

The following table assesses the proposed subdivision against the relevant objectives and policies within these Chapters:

Table 3 – Assessment of Relevant Objectives and Policies within the District Plan

Chapter 5 – Amenity Values

Objective Comment

5.3.1 - The characteristic amenity values of each Environment are maintained and, where appropriate enhanced.

The objectives and policies seek any activity that locates in a Living Environment should not have any effects that cannot be avoided, remedied or mitigated to a level consistent with the amenity of a residential area. In this instance, while the future residential activities associated with this subdivision are appropriate, the standard of the accessway linking the road network and the proposed allotments as presented in this application create effects that cannot be avoided, remedied or mitigated unless an alternative accessway is considered.

In addition, in Living Environments, a general sense of community, friendliness, common security and mutual support can be attributed to spatial continuity of housing. Connecting part of this future community development by a narrow and unsafe accessway may not improve the above elements of amenity values of the area if considered within the context of the high standard of previously approved subdivision. The cumulative effects of such activity

5.3.5 - The actual or potential effects of subdivision use and development is appropriately controlled and those activities located and designed, are to be compatible with existing and identified future patterns of development and levels of amenity in the surrounding environment.

Policy

5.4.3 - Activities in Living Environment

To ensure activities in Living Environments do not have adverse effects that are significantly greater than those associated with residential activities, whilst acknowledging that adverse effects of activities from outside the living Environments, e.g. the Airport, may not be avoidable altogether and may affect amenity values

5.4.7 - Intensity and Design of Subdivision and Development

To ensure that subdivision and development do not unduly compromise the outlook and privacy of adjoining

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properties, and should be compatible with the character and amenity of the surrounding environment.

Regard should be given to:

• The layout and intensity of subdivision.

have been assessed to adversely affect amenity values

While the layout, design and density of subdivision is appropriate to the environment where it is located, the connection with the road network by a sub-standard accessway is considered unsafe and inefficient. It therefore considered the proposal as presented to be partially inconsistent with these objectives and policies.

5.4.12 - Traffic

To encourage vehicle movements and parking demand, where it does not adversely affect the amenity values of the particular environment in which it is located, having regard to the characteristics of that environment and adjacent environments, and the range of activities for which it makes provision for.

As assessed, two Traffic Engineers agreed the proposed upgrading works at the entrance of the accessway from Austin Road will safely absorb the additional traffic from the proposed subdivision and into the road network. However, it is the width of the accessway and associated traffic effects that divided their views.

The effects assessment of the proposal on traffic concluded to be more than minor. As such, it is considered that the proposal is not fully consistent with this policy.

Chapter 8 – Subdivision and Development

Objective Comment

8.3.1 - Subdivision and development that achieves the sustainable management of natural and physical resources whilst avoiding, remedying or mitigating adverse effects on the environment.

While I am satisfied that the proposal may be consistent with the purpose and principles of sustainable management given it is solely for residential purpose (an appropriate use of the resource); however, it is not anticipated to adequately avoid, remedy or mitigate the access issues associated with it. It is my opinion therefore that the proposal will not be fully consistent with this objective.

Overall environmental quality can be compromised by inappropriate subdivision and development. Such effects include compromises to existing activities such as roads. The failure to provide safe and efficient access to the subdivided site through a substandard access can be considered contrary to this policy despite creating residential lots of density expected in this Environment.

8.3.5 - Subdivision and development that allows for the efficient and orderly provision of services and infrastructure, including the roading hierarchy and airport.

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Policy Comment

8.4.3 Density of Development

To ensure that subdivision and development results in a pattern and density of land use which reflects flexibility in allotment size, and is of a density appropriate to the locality.

The density of development impacts on the efficient and orderly provision of infrastructure and services. It is important that this scale is in proportion to existing development or be at such a level that it does not detrimentally affect the efficient and orderly provision of infrastructure and services. The assessment of effects of the proposal has considered the level and magnitude of traffic effects brought about by a substandard accessway to be more than minor. As such, the proposal is inconsistent with this policy.

8.4.4 Cumulative Effects

To ensure that the cumulative effects of on-going subdivision and development do not compromise the objectives and policies of this Plan, those objectives and policies relating to reducing conflicts between incompatible landuse activities, the consolidated and orderly development of land and the density of development.

Ongoing or subsequent subdivision and development of land can result in cumulative effects on the values of an area.

It has been assessed that the cumulative effects of this proposal are anticipated to be more than minor due to potential adverse traffic effects associated with access to the proposed lots. Further development of adjacent land will also exacerbate the situation. Therefore, the proposal is inconsistent with this policy.

8.4.6 Buildings and Activities

To ensure that allotments are capable of accommodating complying buildings and activities

Sustainable land management requires that the allotments are of a useable size and shape for a wide range of uses. A proposed subdivision should allow land uses to proceed in accordance with any bulk and location requirements. Size and shape of allotments can have considerable impacts on the natural and amenity values of a particular area, and the subdivision design should take these impacts into account. In addition, applicants may be required to provide evidence that a site can accommodate a suitable building platform. The proposal demonstrated that it is consistent with this policy.

8.4.7 Design and Location

To ensure subdivision and development is designed and located so as to avoid, remedy or mitigate adverse effects on, and where appropriate, enhance:

• …Landscape values;

• …Amenity values and sense of place;

The design and location of subdivision and development may have significant irreversible effects on the values listed. Subdivision should therefore have regard to the surrounding environment, particularly in environmentally sensitive areas.

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• ….Archaeological, cultural (including tangata whenua) and heritage features;

• ….Infrastructure, particularly roads

The subdivision has been assessed as having adverse effects on the stonewall that are more than minor. This proposal is inconsistent with this policy.

8.4.12 Services and Infrastructure

To ensure that all subdivision and development is capable of being provided, by the subdivider or developer, with adequate services and infrastructure having regard to Whangarei District Council’s Environmental Engineering Standards 2010 (except where the subdivision or development is for specific protection purposes), including:

• Vehicle access, including emergency service vehicle access;

• Water supply, (including for firefighting purposes), storm water and sewage disposal;

• Energy and telecommunication connections;

• Useable open space in urban areas;

• During the design and construction of the subdivision, measures to reduce storm water runoff.

Subdivision provides an opportunity to provide the necessary services to the allotments, efficiently and in a manner that minimises adverse effects on the environment. Generally, it is the expectation of the purchaser that the effects of the anticipated activity will have been considered before the new title was allowed to be created. In situations where no public services are available, it must be demonstrated that the sites are suitable for onsite servicing. Where reticulated services are unavailable, further development in some areas may not be feasible.

In this proposal, while some infrastructural services can be satisfied by imposing relevant consent conditions, efficient and safe access is not. Therefore, the proposal is not fully consistent with this policy.

Chapter 22 – Road Transport

Objective Comment

22.3.3 - Protect the road transport network from the adverse effects of adjacent land use, development or subdivision.

22.3.4 - To ensure that the effects of roading infrastructure on landscape and ecological values are avoided, remedied or mitigated.

The efficiency and safety of the road transport network impacts on the wellbeing of the community. It is also recognised that the transport network can have a significant effect on the natural environment and amenity values.

While the entrance of the accessway onto Austin Road can be improved by way of appropriate conditions, the accessway to 15 potential users is unsafe and inefficient. It may have adverse impacts on the overall traffic movement in the area.

Policies Comments

22.4.6 - Pedestrian Safety

To ensure that cyclists and pedestrians, including vulnerable groups, such as the young, the elderly and the disabled, are safe from vehicles and other road traffic.

Various major activities need to be assessed for transport effects, such as impacts on safety, speed, traffic volumes, effects on the capacity and function of the adjacent road network,

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Suitable facilities for cyclists and pedestrians should be provided in new developments and within the existing roading hierarchy, as appropriate.

22.4.8 - Visual Obstruction

To ensure that the design, location and extent of buildings, advertising signs and vegetation adjacent to roads does not compromise the safe and efficient operation of the road transport network.

and the generation of secondary traffic effects, such as dust, noise and vibration. These effects can diminish safety, convenience and amenity. In particular, traffic generating activities may have unacceptable effects in residential areas. It is apparent the substandard accessway proposed is unsafe and inefficient. Part of the proposed realignment of the first part of the accessway from Austin Road may in part reduce safety risk.

Some pedestrians are particularly vulnerable due to age or disabilities. Special consideration needs to be given to their safety and mobility needs. The proposed accessway will not be meeting these requirements and as such, the proposal will be inconsistent with these policies.

Built Heritage

Objective BH.1.4 Comment

2. - The vulnerability of scheduled built heritage resources to physical damage, unsympathetic additions or alterations and on-going maintenance costs is recognised and appropriately managed.

3. - Dry stone walls of historic, cultural, amenity and landscape value to the community are maintained and protected throughout the district.

The susceptibility of the stonewalls to physical damage or unsympathetic additions or alterations, and impacts on original surroundings, identity and values have been common around Whangarei. Physical effects of development as a result of recent subdivisions around Maunu (Austin Road) have continuously threatened the removal of stonewalls. It is noted in the proposed subdivision, although the application alluded to only 6m removal, the impact of improving the accessway will adversely affect the stonewall. As such, it is considered that proposal will be inconsistent with the objectives and policies identified.

Policies BH.1.5

13 - Dry stone walls. To protect dry stone walls of historical, cultural and amenity value to the community through: a. Blanket protection of dry stone walls

throughout the District. b. Providing information and advice to the

public, including GIS information on the location of protected dry stone walls.

c. Discouraging planting close to dry stone walls.

d. Encouraging proactive maintenance, for example repair of capping stones.

e. Recommending consultation with Heritage New Zealand where dry stone walls are estimated to have been constructed prior to 1900 or their age is in doubt.

f. Limiting works affecting existing dry stone walls, other than:

i. Repairs or maintenance in situ using traditional methods, design and materials.

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ii. Removal of up to…

While it is noted that some elements of consistency can be found between the proposal and the objectives and policies, being those relating to servicing and the retention of general amenity values of the Living Environment, it is inconsistent with the most important ones that provided for the avoidance of inappropriate subdivision and development for the following reasons:

1. Cumulative effects of subdivision and development that continuously affect stonewalls as historic heritage which is a matter of national importance under Section 6(f) of the RMA; and

2. The proposed accessway servicing the subdivision site is unsafe and inefficient and as such has traffic adverse effects that are considered more than minor.

Therefore, for the assessments of the relevant objectives and policies of the Operative District Plan as discussed in the table above, it is concluded that the proposed subdivision is contrary with the overarching intent of many of the relevant objectives and policies.

It is also noted that the proposal is not fully consistent with the relevant objectives and policies of the Operative Regional Policy Statements as discussed in the table above.

Other Matters

Rural Plan Change

Whangarei District Council publicly advertised the decision on Rural Plan Change and others on 17 January 2018. Notification period ended on 1 March 2018. The site is not subject to the plan change. There are however, changes proposed to the adjacent properties which will be rezoned from Countryside Environment to Living 3 Environment.

Section 106 - Refusal of Subdivision Consent in Certain Circumstances

Section 106 requires that:

(1) A consent authority may refuse to grant a subdivision consent, or may grant a subdivision consent subject to conditions, if it considers that –

(a) there is a significant risk from natural hazards; or

(b) [Repealed]

(c) sufficient provision has not been made for legal and physical access to each allotment to be created by the subdivision

The above provision is an integral part of the consideration of traffic effects. Any concerns about the safety of the access design must be a factor in any determination of whether traffic effects overall are more than minor. The effects on the environment include the environment of the site subject of the application and not just the surrounding area. Any subdivision must be designed to provide for movement of vehicles in a safe and efficient manner from the existing road network to the boundary of every lot, and within the site where building locations and access is known. If the internal access within a subdivision does not meet standards of the District Plan or established engineering codes for the width, gradient, geometry and formation of roads, rights of way and access legs, to such an extent safety is compromised, I cannot see how a conclusion could be reached that the adverse traffic effects are no more than minor.

The provisions of Section 106(1)(c) reinforces this approach by setting a bottom line for subdivision; every lot must have legal and physical access. The Council is entitled to refuse consent on this grounds alone if it is not satisfied sufficient provision has been made, but I do not see this is a separate matter from the assessment of traffic effects. The same with hazards. I cannot see how I could reach a view the effects of a subdivision were no more than minor when two qualified engineers expressed a view that the accessway is unsafe and inefficient.

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It is further observed that s106(1)(c) states “sufficient provision has not been made for legal and physical access”. From planning perspective, I interpreted ‘sufficient provision’ for ‘legal’ and ‘physical’ access as being construed to being fully in compliance with other relevant standards. In this case, it includes the standards set out in the Council’s Environmental Engineering Standards 2010 Edition in terms of codes for the width, gradient, geometry and formation of roads, rights of way and access legs, etc. It also includes the national code of practice for firefighting under the Fire and Emergency NZ Act 2017 No 17.

Considering Section 106(1)(c) from the angle and coupled with NZ Fire Service’s submission indication withholding their approval for the proposed subdivision because of noncompliance of the accessway, it is my opinion that the application will fall under this provision.

Furthermore, I am concerned that allowing a subdivision that creates more residential dwellings to be served by a legal and physical accessway which has been assessed to have more than minor traffic effects, inefficient and unsafe may have potential adverse consequents.

Part 2 Matters

Despite a ‘refusal of consent’ conclusion arrived at under Section 106(1)(c), the assessment of any application under Section 104 still requires that when considering an application for a resource consent and any submission received that the Council must subject to Part 2, have regards to several matters listed in this section.

As the full assessment of the proposal in terms of effects, relevant provisions of plans, and the national environmental standard on the environment in the report were made subject to Part 2 matters, I provide below relevant brief comments.

Section 5 – Purpose

11.1.1 Part 2 of the Resource Management Act 1991 details the overarching purpose and principles of the Act. Part 2 of the Act requires that the proposed activity must meet the purpose of the Act set out in section 5 which is “to promote the sustainable management of natural and physical resources.” As outlined in section 5(2), “sustainable management” means:

“managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety while -

(a) Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and

(b) Safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and

(c) Avoiding, remedying, or mitigating any adverse effects of activities on the environment.”

11.1.1 Based on the conclusions reached in the foregoing assessment, the proposal is considered not fully consistent with the purpose of the Act.

2.1 Section 6 – Matters of National Importance

11.2.1 Section 6 identifies seven matters of national importance that must be recognised and provided for. In summary, these relate to the preservation of the rivers and their margins from inappropriate use and development, the protection of outstanding natural features and landscapes and areas of significant indigenous vegetation and habits; the maintenance and enhancement of public access to and along rivers; the relationship of Maori and their culture and traditions, and the protection of historic heritage.

11.2.1 The proposal has been assessed as having adverse effects on historic heritage being the stonewalls.

3.1 Section 7 – Other Matters

11.3.1 Section 7 of the Act identifies eleven other matters to be had regard to in achieving the purposes of the Act. The following are of relevance to the proposal;

• Kaitiakitanga;

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• The ethic of stewardship;

• The efficient use and development of natural and physical resources;

• The maintenance and enhancement of amenity values;

• Intrinsic values of ecosystems;

• Maintenance and enhancement of the quality of the environment;

11.3.1 Kaitiakitanga, being the exercise of guardianship by the tangata whenua of an area in accordance with Tikanga Maori in relation to natural and physical resources; includes the ethic of stewardship. There being no site of significance to Maori in the site and its vicinity. Therefore, no consultation was needed.

4.1 Section 8 – Treaty of Waitangi

11.4.1 Section 8 requires that decision makers consider the principles of the Treaty of Waitangi (Te Tiriti o Waitangi) in managing the use development and protection of natural and physical resources. The principles of the Treaty do not supersede the Treaty itself; rather they derive from the Treaty and assist the practical application of it. In this regard, the Court of Appeal has defined relevant principles as reflecting the purpose and intent of the Treaty in the management of natural and physical resources; including the Principles of Kawanatanga; Rangatiratanga, Partnership; Active Protection and Hapu and Iwi Resource Development.

11.4.1 With respect to the current proposal, no site of significance to Maori was identified.

Conclusion & Recommendation

Conclusion

Whilst adverse effects identified in providing some services to the proposed lots, and amenity values can be mitigated by way of appropriate consent conditions, the following actual, potential and cumulative effects were assessed, on balance, however to be more than minor:

Traffic effects associated with the accessway servicing the proposed allotments are more than minor; accessway will be insufficient and unsafe for its purpose.

Cumulative effects on historic heritage (stonewall) have been assessed as more than minor.

The proposal is therefore assessed as not fully consistent with the relevant objectives and policies of the Operative District Plan.

12.1.1 In addition, the proposed subdivision will fall under Section 106(1)(c) because of insufficient provision made for legal and physical access to the proposed allotments.

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Recommendation

THAT pursuant to Sections 104, 104B and 106 of the Resource Management Act 1991, it is recommended that consent is refused for Segmental Liners Limited (SD1700121) to undertake a subdivision of Part MBLK 2 NONE Waipuna (NA1020/268) of 2.7291 hectares into 12 residential lots and two access lots in the Living 3 Environment, as a Discretionary Activity.

Reasons for the Recommendation:

That pursuant to Section 113 of the Resource Management Act 1991 the reasons for this decision are as follows:

• The proposal is considered to generate actual or potential effects on the environment which are considered to be unacceptable in regards to the provision of a sufficient and adequate accessway with effects on amenity values, traffic safety and cumulative effects.

• The proposal will result in effects on the local environment that are more than minor in terms of the heritage feature (stonewall). Furthermore, is inconsistent with Part 2 of the Act given impact on the heritage feature with removal of a portion of wall and disturbance for accessway upgrading.

• The proposal is not fully consistent with the relevant plans’ objectives and policies.

• The proposal does not meet Section 106(1)(c) of the RMA as adequate and sufficient access is not provided.

Advice Notes:

1 The applicant shall pay all charges set by Council under Section 36 of the Resource Management Act 1991. The applicant will be advised of the charges as they fall.

2 Section 120 of the Resource Management Act 1991 provides a right of appeal to this decision. Appeals must be in writing, setting out the reasons for the appeal, and lodged with the Environment Court within 15 working days after the decision has been notified to you. Appellants are also required to ensure that a copy of the notice of appeal is served on all other relevant parties.

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13.0 Attachments

1. Scheme Plan

2. The application (as lodged)

2A S92 Information

3. S95 Notification Report

4. Correspondences Following Notification

5. Submissions

6. History of Subdivision and Zone Changes Over Time

7. SDE Engineering Review Report

8. NCC Consulting Engineers Peer Review Report

9. District Plan Chapters

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Attachments available on request. Please contact Consents Administration.