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IN THE MATTER of the Resource Management Act 1991 ("Act")

AND

IN THE MATTER of an application by Kotuku Corporation Limited to the Waikato Regional Council and the Matamata Piako District Council to establish and operate an 8 shed free-range broiler chicken farm

RIGHT OF REPLY OF CHRISTIAN JAMES MCDEAN FOR KOTUKU CORPORATION LIMITED

RIGHT OF REPLY OF CHRISTIAN JAMES MCDEAN FOR KOTUKU CORPORATION LIMITED

1. INTRODUCTION

Qualifications and Experience

1.1 My full name is Christian James McDean.

1.2 My qualifications and experience are described in my Evidence in Chief which has been pre-

circulated.

Scope of Reply

1.3 This is a pre prepared portion of our right of reply in relation to the planning aspects of this

hearing, with it being likely this this will be added to verbally following the Councils

presentation as well as potentially responding in writing to any questions the commissioners

might have. This written right of reply addresses the following:

(a) A response to the matters raised by the commissioners seeking a confirmation of the

application being considered. Including site & elevation plans, ventilation plans and

a proposed landscape plan including site setbacks from the boundary.

(b) Comments in relation to bundling and lapsing of consent.

(c) Comment in relation to the noise assessment and a proposed dwelling opposite the

site owned by the Slattery family.

(d) The volume of water used within the misting system.

(e) Comment on the submissions heard during the proceedings, including the evidence

given by Mr Hopkins.

(f) Comment on 42A officers supplementary planning evidence.

2. THE PROPOSAL

2.1 The application seeks resource consent for:

(a) 8 shed free range poultry broiler farm at 263 Wiseman Road

(b) Each poultry shed will measure 138m x 20m with a gross floor area of 2,760m 2 per

shed, providing for a total gross floor area of 22,080m2.

(c) The density of birds for each shed will be controlled by a limit of 34kgs/m 2, which is

the density limit placed on free range broiler sheds by the Code of Welfare - Meat

Chickens issued under the Animal Welfare Act 1999.

(d) The free range areas are twice the size of each sheds gross floor area, providing for a

total free range area per shed of approximately 5520m2 . These will be located on

each side of the long wall of the shed, where the pop hole doors will be located. The

range areas will be fenced with chicken netting approx. 1-1.2m high.

(e) The sheds will have 8 chimney fans spaced equally down the approximate middle of

the roof (off centre from the ridge) and will have two end wall fans on both of the

short ends of the shed for additional ventilation during hot weather conditions when

at higher density.

(f) The sheds will be heated using a hot water boiler system discussed within Mr Pene’s

evidence, and cooled when necessary by an internal misting system.

(i) It is important to note that heating is only used when the birds are young,

before they are able to go outside. This can be up to day 12-14 in summer

and day 18-20 in the winter, this is dependent on internal shed temperature.

At these ages, the birds begin to produce significant heat within the sheds

which requires cooling through ventilation.

(ii) The cooling misting system while installed in sheds is seldom used unless

there is a high density of birds, it is a very hot day and there is low enough

relative humidity for this type of evaporative cooling to work. Following

discussions with farmers that have these units, the anecdotal evidence is

that they are used only a few days in the year and these are generally in

February when the weather can be hot and dry. The system is only used in

short bursts, between 12-5pm when the temperature requires evaporative

cooling.

(g) The site will also include ancillary buildings in the form of a site office, chiller room,

LPG storage tank.

2.2 A site plan, shed elevation, ventilation/heating and updated landscape and washdown plan

has been attached to this right of reply to assist the commissioners in understanding the

application as it has been assessed.

2.3 The resource consents required are as follows:

(a) Land Use Consent from the Matamata Piako District Council for the operation of an

8 shed broiler poultry farm.

(b) Air discharge consent from the Waikato Regional Council for the discharge of

contaminants to air from the operation of said broiler poultry farm.

(i) A generator unit was originally included within the application; however, it

was confirmed during the hearing that this unit would need to comply with

the permitted activity rule 6.1.12.1 of the Waikato Regional Plan. At this

stage of the process we are unable to confirm the type of generator

proposed so cannot show compliance with the permitted activity rule. We

agree with the Waikato Regional Councils opinion on this subject.

3. BUNDLING

3.1 As previously discussed, the original application suggested that the resource consent

applications should be bundled, this was on the basis that the consents required cannot be

given effect to without both having been granted.

3.2 Mr Hopkins presented some case law titles on the second day of the hearing, which were

the same publicly available cases I was able to review:

(a) Newbury Holdings Ltd v Auckland Council; and

(b) South Park Corp Ltd v Auckland City Council

3.3 On the face if it I still believe the applications should be bundled however ultimately this

decision is for the panel and your view of the legal opinion provided by the 42A team. I

agree with the supplementary 42a evidence in section 7.9 of the supplementary evidence

that little turns on whether or not the consents are to be bundled. It will require that you

consider the application against the ‘gateway test’, but again agree with the council

assessment later in the supplementary evidence this this test can be passed to allow you to

consider this application.

4. LAPSE

4.1 Ultimately, I agree with Mr Rademeyer’s assessment in relation to the lapse of consent. As

these types of operations can be developed in stages rather than all at once, lapse is an

important detail to consider for a consent holder. If they are not able to show substantial

progress as discussed by Mr Rademeyer in section 10.3, then they would need to seek a

extension under s125(1A)(b) to extend the lapse period, in this case taking into

consideration the importance of 125(1A)(b)(ii) in relation to the written approval of those

person who may be adversely affected by the granting of this extension.

5. NOISE ASSESSMENT

5.1 During the course of the hearing Commissioner Curtis asked a question in relation to the

noise assessment prepared by Hegley Acoustic Consultants and the effects on the Slattery

property to the immediate south. This assessment looked only at existing sensitive

receptors of which there are none to the immediate south on the land owned by the Slattery

family.

5.2 It is noted that the Hegley report provided noise contours (located on Page 604 of the 42A

report) and identified that part of the Slattery property to the south would be within the

night-time noise limit of 40dBa L10 set by the MPDP.

5.3 At its worst (as measured by myself) this contour extended into the property by

approximately 45m from the Wiseman Road boundary. However it is important to note that

this was modelled (as per Page 604 of the 42A report) at a worst case scenario when all fans

were running at max ventilation, which as discussed above in section 6 will generally only

occur during high density stocking rates, hot summer conditions and then usually only

between 12-5 when the sheds are at their warmest. The night-time noise limit does not take

effect until 7pm.

5.4 It is noted that Mr Slattery did mention during his submission presentation, that if a building

platform were to be selected on this Wiseman Road frontage, then it would make sense to

use the existing gateway where a now demolished dwelling once sat (as illustrated by the

black dot in the image below, based on historical aerial photography).

5.5 Based on this information I asked Mr Hegley to remodel the operation using this possible

sensitive receptor location and Mr Hegley responded:

The level at the point shown on your figure is a calculated 38dBA L10 at night time so

complies with the 40dBA L10 requirements of the District Plan

5.6 On the basis that no further evidence has been presented as to when or where a dwelling

would be constructed on this Wiseman Road frontage, I have taken the practical step of

using information supplied by Mr Slattery, confirming that were a sensitive receptor to be

constructed in the location he identified we would comply with the noise standards

contained within the Matamata Piako District Plan.

6. MISTING UNIT – WATER USAGE

6.1 During the course of the hearing we were asked by the commissioners how much water the

misting units used, which I was unable to answer at the time. Since then we have been in

touch with Real Air Solutions Limited in Matamata who supply these misting units.

6.2 Their comments are as follows:

(a) This system uses high pressure water in the summer only, it is a pulse system as it

uses evaporation for cooling so requires the mist to have evaporated before it gets

to the birds on the floor.

(b) On a very hot day (generally only in January/February) the system may pulse 4-5

times an hour during peak outdoor heat approximately 12-5pm. The relative

humidity in the shed needs to be below 65% otherwise the system is ineffective.

(c) The start temp for this system is always 4 degrees above the shed ventilation

setpoint, meaning that if the sheds were set at 20 degrees (for larger/older birds),

the starting point for the system would be 24 degrees. This also ensures that there

is maximum ventilation in operation to allow evaporative cooling to take place.

(d) If the misting units were required, each shed would use approximately 116 litres per

hour (about 1/2 litre per nozzle). Over a 5-hour period that would equate to

approximately 580 litres per shed per day or approximately 4.6m3 per day for the 8

sheds, which is well under the permitted 15m3 of supplementary water allowed for

by the Waikato Regional Council. As you will be aware this permitted take has also

been confirmed by Cameron King of the Waikato Regional Council, as per the

supplementary evidence presented by the 42A team.

7. SUBMISSION PRESENTATION AND SUBMITTER’S PLANNING EVIDENCE

7.1 The 42A team has done a good job in discussing the main themes raised by the submitters

and I don’t propose to repeat that except where I think its relevant.

7.2 It is important to note that while the submissions were lengthy and passionate, they did not

provide any technical evidence (other than planning by Mr Hopkins) to support the content

of their submissions. The applicant has gone to considerable expense in providing a number

of assessments which have then been reviewed by the respective Councils.

7.3 I have left comment on traffic and odour to our respective experts and will focus on those

planning issues raised by the submitters and Mr Hopkins I think require further comment.

Appropriate Landuse

7.4 A theme through the presentation of submissions and then within Mr Hopkins planning

evidence was that this is an inappropriate land use and was better suited ‘somewhere else’

based on the sensitivity of the receiving environment.

7.5 I believe that though questioning of Mr Hopkins by the panel it was agreed by Mr Hopkins

that the Rural Zone was the appropriate zone for this type of development and that no

evidence had been presented that identified this area as being particularly unique to the

Matamata Piako District.

7.6 On that basis I would conclude that provided the activity is able to avoid, remedy or mitigate

its effects to a level that does not result in effects being more than minor this activity can be

located within this specific environment.

250m Discretionary Activity Standard

7.7 I agree with section 6 of the supplementary 42a evidence. The explanation of the 250m

setback clearly identifies its purpose within the Matamata District Plan, which is not to set a

hard limit on the development of poultry farms, nor does it identify areas of effect as

understood by the submitters.

7.8 The site location provides the best overall separation to existing sensitive receptors which I

believe to be more important than attempting to have the application assessed as a

discretionary activity.

Consents Required

7.9 I agree with the supplementary 42a evidence in its conclusion in relation to the consents

required, under section 4.1 of the supplementary 42A evidence. I am of the view that all of

the necessary applications required to be considered are being considered by the panel.

7.10 I note that within the attached appendices containing the relevant plans for the proposal,

we have provided an updated landscape and washdown plan, showing a significantly

reduced washdown area, so that only those areas outside of the areas known to flood will

be irrigated. This equates to approximately 24ha of available land, which is significantly

more than required based on the evidence produced in sections 4.9 – 4.11 and Appendix E

of the supplementary 42A response.

Best Practical Option

7.11 A number of submitters through the preparation of their evidence made reference to dairy

farming having to ‘move with the times’ and having to upgrade their systems. They are also

increasingly having to take into account the environment on their farms and seem to believe

that the poultry industry has not kept up.

7.12 As someone who has been involved within the poultry industry for 18 years and as a regular

visitor on poultry sites this is simply untrue. Poultry farms have for my entire career

required to have resource consent to operate unlike dairy farms. Therefore, they have

always been held to a higher standard in relation to site operation and compliance with

conditions.

7.13 The poultry industry is constantly changing with the introduction of different technologies

on an annual basis. 20 years ago, there were unlined plywood sheds, with little to no

mechanical ventilation where farmers did their best to manage their sites ‘by eye’. The

current crop of sheds are fully insulated, run by complex environmental control units, are

able to provide information to the farmer instantly, use modern ventilation techniques and

use heating systems that no longer introduce moisture to the sheds through direct heat.

7.14 These types of modern sheds are expected by the respective councils and ultimately by the

processor who provides the farmer a contract to grow birds. A typical Tegal contract is for a

rolling 25-year term with 5 yearly extensions issued provided that the farms are upgraded

where necessary to what Tegal considers BPO following an audit at 5 yearly intervals. It is in

the best interests of the farmer for their financial security and the processor for their

security of supply to ensure the farm is operating as efficiently as possible providing healthy

birds which goes hand in hand with good environmental outcomes.

Mr Patrick and Complaints History

7.15 While Mr Patrick did not paint a positive picture of the poultry industry in his experience, I

believe the evidence provided by the Waikato Regional Council in the supplementary 42A

information clearly shows this is not the experience of the rest of the population who live

around the other 40 odd farms within the area.

7.16 I have visited 4 of the 5 sites in the past 18 months in my role as planning advisor to all but

Kevin Yang. Other than Travama Holdings (as referenced 11(c) on page 17 in the

supplementary 42a evidence) who now have 12 sheds on site albeit separated by 300m, the

sites have older sheds with older style ventilation systems. In reviewing the Travama

Holdings complaint it would seem to be a red herring based on the single complaint while

driving some 750m away with rolling hills between the site and highway. The property does

sell its spent litter to surrounding farms which may have been the cause of the noticeable

odour.

7.17 I note that having worked with Massey Farms (as referenced in section 11.7 (a) on page 16 in

the supplementary 42A evidence) over the past 5 years and in particular undertaking the

technology review on behalf of Massey Farms. Implementing a number of site upgrades

over the past 12 months, we have seen a significant reduction in the number of complaints.

We have only one serial complainant left who generally complains once per run at peak

density and the last complaint he registered at the end of October he scored the odour a 3.5

somewhere between distinct and strong using the scale on WRC’s ‘Data Record Sheet for

Odour Measurement.

7.18 While I appreciate this is still not an ideal situation for the complainant, what it shows is that

you can take an older style shed and upgrade environmental controllers and drinker lines

and it will make a significant difference to the shed operation. I make this point as the sheds

we are proposing for this site are vastly superior to the Massey Farms site in materials,

automation and ventilation design.

8. SUPPLEMENTARY 42A EVIDENCE

Determination of the Environment for the Purposes of Effects Assessment

8.1 My review of the case law and commentary provided within the supplementary 42A

evidence, clearly indicates that a possible future dwelling on the 48ha block of land owned

by the Slattery family to the immediate south of the proposed site cannot be considered

part of the environment.

8.2 Both Mr & Mrs Slattery presented submissions at the hearing and both provided different

locations to where a dwelling could be located. Mrs Slattery referred to a dwelling being

constructed anywhere along the Wiseman Road frontage and Mr Slattery referred to the

most logical site being the site of a demolished former dwelling. I believe it would be

reasonable to conclude that a dwelling could not be considered ‘likely’ on this property and

any move to ‘lock in’ a dwelling site now would raise the same issues as those discussed

within the Burgess v Selwyn District Council decision referred to on page 21 of the

supplementary 42a evidence.

8.3 I am at somewhat of a loss as to how the Regional Council after being provided what I

considered to be clear legal opinion can still not conclusively determine whether a future

dwelling in this site does or does not form part of the environment. I make the assumption

they would prefer that the panel made that determination.

8.4 On the basis that I believe a potential dwelling on the Slattery property to the immediate

south of the site cannot be considered part of the environment, Option 1 (on page 23 of the

supplementary 42A evidence) is the only option that should be accepted by the panel.

Duration

8.5 The supplementary 42a evidence provides limited justification as to why a shorter duration

should be provided for this application, other than uncertainty provided within Jayne

Metcalfe’s evidence.

8.6 This would seem to relate to the NESAQ, potential health effects and the possible effects on

a potential dwelling on the Slattery land to the immediate south of the site.

8.7 Mr Pene has responded to both the NESAQ and potential health effects to a degree that I

hope would satisfy Ms Metcalfe. Too reiterate my comments above, I believe the legal

opinion obtained by the respective Councils clearly demonstrates that a potential dwelling

on the Slattery property should not be considered part of the environment, the statements

provided by Mr and Mrs Slattery only reinforce this opinion.

8.8 In that case, a minimum term of 25 years should be granted for this consent. It is noted that

the application originally sought a consent duration of 35 years, this was reduced to 25 years

following a discussion with the processing officer and in the interests of reducing our areas

of disagreement. However should WRC persist in seeking a shorter duration, we revert back

to our original consent duration of 35 years.

8.9 This term is based on the fact that Kotuku will be investing heavily in this proposal, with this

particular development costing upwards of 20 million dollars, including land cost. The

payback period for this development is anticipated to be approximately 25-30 years, based

on a 5% interest rate, obviously changes to that rate could obviously reduce or extend the

mortgage term. At this stage Kotuku anticipates building this operation for Tegal, who offer

contracts of up to 30 years, although in my recent experience a rolling 25-year term has

been used.

8.10 A 15 year term is what I would consider pointless for both parties, if the proposal was

granted for a 15 year term, the applicant may struggle to gain a contract that protects the

significant investment they are making thereby potentially frustrating the use of the consent

granted. It also lands the submitters with a poultry farm for the next 15 years with

potentially uncertain effects, if Councils supplementary 42A evidence is to be understood. It

would seem that Council need to determine whether they support their own

recommendation and rely on the conditions provided to adequately mange effects or they

needed to recommend that that application be declined on the basis that the effects are

going to be more than minor.

8.11 The supplementary 42a evidence attempts to use the argument that duration needs to be

limited so that it does not compromise WRC’s ability to monitor and manage air quality

effects from this site over time. In assessing this application, WRC have found that they are

able to grant this application (provided the panel agree that a dwelling cannot be considered

on the Slattery land) on the basis that the effects are no more than minor with the inclusion

of conditions.

8.12 These recommended conditions propose at least seven different ways WRC can monitor the

site, these are summarised below:

(a) Condition 4 - a site management which is required to be updated every four years,

documenting how compliance will be achieved.

(b) Conditions 14 & 15 - advising the WRC of complaints, as well as keeping a

complaint’s register.

(c) Condition 16 - requires the consent holder to provide a written report to WRC

should an objectionable odour be confirmed beyond the boundary of the site. This

report must outline the cause, measures to avoid remedy and mitigate that

immediate effect and steps taken to avoid it happening in the future.

(d) Condition 22 - requires a Technology Review to be undertaken if complaints are

received within 3 years prior to the fifth and 10 th anniversaries of the issue of this

consent. The technology review requirements are significant and would not be low

cost to undertake or implement. I believe you can use the example of Massey Farms

(Reference 11.7(a) of page 16 of the supplementary 42a evidence) for how a

successful technology can be undertaken with material changes being made to the

operation resulting in a significant reduction in off site effects.

(e) Condition 23 requires the installation of a weather station which is an effective data

collection source and allows WRC to confirm met data for a particular period should

complaints be received.

(f) Condition 25 requires the shed to be inspected with abnormal conditions logged and

provided to WRC on request.

(g) Condition 26 requires the consent holder to notify WRC is the feed supplied to the

birds produces abnormal results in bird health.

(h) Condition 27 - allows WRC to initiate a s128 review process annually, to effectively

require the consent holder to adopt the best practicable option to remove or reduce

adverse effects on the receiving environment and to review the effectiveness of the

conditions.

8.13 These are a very robust, belts and braces set of conditions that provides WRC with multiple

options to have the consent holder address adverse odour effects created beyond the

boundary (if any). To limit the term to 15 years on the basis that the effects are uncertain

does not fit with the conditions imposed and the level of control the WRC has.

8.14 While technology will no doubt advance, WRC has the ability to request reviews in a number

of different ways and can require that changes are made to ensure compliance with the key

condition, Condition 6, which requires that there is no objectionable odour beyond the

boundary causing an adverse effect.

8.15 Kotuku Corporation request a consent duration of 35 years.

Christian McDean

16 December 2019

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