Before a Board of Inquiry
Transmission Gully Plan Change
under:
in the matter of:
by:
the Resource Management Act 1991
a request for a plan change to the Regional Freshwater
Plan for the Wellington Region
NZ Transport Agency
Applicant
Statement of rebuttal evidence of Lindsay John Daysh for the NZ Transport
Agency
Dated:
REFERENCE:
13 June 2011
John Hassan ([email protected])
Nicky McIndoe ([email protected])
1
STATEMENT OF REBUTTAL EVIDENCE OF LINDSAY JOHN
DAYSH FOR THE NZ TRANSPORT AGENCY
INTRODUCTION
1
My full name is Lindsay John Daysh. I have the qualifications and
experience set out at paragraphs 2 to 15 of my statement of
evidence in chief (EIC).
2
I repeat the confirmation given in that statement that I have read,
and agree to comply with, the Code of Conduct for Expert Witnesses
(Consolidated Practice Note 2006).
3
In this statement of rebuttal evidence I:
3.1
Comment on the recent adoption of the National Policy
Statement (NPS) for Freshwater Management and its
applicability to the Plan Change;
3.2
Respond to the evidence of:
3.3
4
(a)
Kris Ericksen on behalf of the Department of
Conservation (DOC);
(b)
Emily Thomson on behalf of the Kapiti Coast District
Council (KCDC); and
(c)
Paula Warren on behalf of four submitters including
herself; and
Consider changes to the Plan Change suggested in the above
evidence.
The fact that this rebuttal statement does not respond to every
matter raised in the evidence of submitter witnesses within my area
of expertise should not be taken as acceptance of the matters
raised. Rather, I rely on my EIC and this rebuttal statement to set
out my opinion on what I consider are the key planning matters for
this Plan Change hearing.
EXECUTIVE SUMMARY
5
I have reviewed the recently gazetted NPS for Freshwater
Management, and consider the Plan Change to be consistent with it.
6
After reviewing the planning evidence lodged for the submitters, I
consider some amendments would be appropriate to Policy 4.2.10,
Policy 4.2.33A, and to the definition of “Transmission Gully Project”.
In all other respects I re-confirm the evidence contained in my EIC.
1316536.6
2
APPLICABILITY OF THE NPS FOR FRESHWATER
MANAGEMENT
7
After my EIC was lodged on 5 May 2011, the NPS for Freshwater
Management was gazetted on 11 May 2011. It comes into effect on
1 July 2011.
8
This NPS is now a relevant consideration for this inquiry, and I have
included a full copy in Appendix A to this statement. I have also
reviewed the NPS for Freshwater Management as a relevant
statutory instrument.
9
The NPS contains a Preamble and then five sections containing
Objectives and Policies which are grouped into the following topics:
10
11
9.1
Water quality;
9.2
Water quantity;
9.3
Integrated management;
9.4
Tangata whenua roles and interests; and
9.5
Progressive implementation programme.
Water Quality
The two water quality objectives are relevant to the Plan Change as
the first (Objective A1) sets water quality expectations in relation to
life supporting capacity, ecosystem processes and indigenous
species when managing the use and development of land and
discharges of contaminants. This is a key component of the
Regional Freshwater Plan as well as the Regional Policy Statement
(RPS) and the Proposed RPS in any event.
Objective A2 promotes the maintenance and improvement of overall
fresh water quality. The Objective introduces the concept of
“outstanding freshwater bodies”, which the NPS defines as “those
water bodies with outstanding values, including ecological,
landscape, recreational and spiritual values”. Dr Keesing’s evidence
is that “outstanding freshwater bodies” is not a scientifically
understood classification. Ms Warren suggests in paragraph 146
that the listed streams appear to fall within the definition of
outstanding, given that they have been recognised in the current
Plan. I would refer you to Dr Keesing’s evidence on the values of the
streams. He does not make the statement that these streams are
outstanding in the context of the NPS. No other witness is
suggesting that the streams affected by the TG Project are
“outstanding freshwater bodies”.
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3
12
13
14
Four policies then apply:
12.1
Policy A1 obliges regional councils to make or change plans to
reflect the objectives and to establish methods to avoid overallocation. My view is that this is a matter for the regional
council to determine and to consider on a holistic and regionwide basis.
12.2
Policy A2 obliges regional councils to specify targets and
implement methods to improve water quality.
12.3
Policy A3 is in two parts. The first relates to imposing
conditions on discharge permits to meet the limits and targets
specified under Policies A1 and A2 above. The second relates
to the regional council making rules requiring the adoption of
the best practicable option relating to contaminant discharges
into freshwater or onto land that may result in that
contaminant entering freshwater. While the focus of the Plan
Change is on reclamation activities (as new Policy 4.2.33A
would create an exception to Policies 4.2.10, 7.2.1 and
7.2.2), Policy 4.2.33A is framed broadly enough so that it
would be one of the Plan policies which would apply to all
effects of the TG Project which require consent (including
discharges).
12.4
Policy A4 directs every regional council to ensure their plans
include two particular policies to give effect to policies A1 and
A2 until any changes under Schedule 1 to the Act are
operative. I do not consider that the changes introduced by
the Plan Change would be inconsistent with these interim
policies.
Water quantity
Part B of the NPS contains 4 objectives and 7 policies relating to
water quantity. The objectives and policies focus on water
allocation, but are relevant to the Plan Change to the extent that
they address the effects of damming and diversion. Damming and
diversion are often necessary steps to reclamation. In my view the
Plan Change is consistent with these provisions because it will allow
effects on life-supporting capacity, ecosystem processes and
indigenous species to be thoroughly considered at the time resource
consent applications are lodged.
Integrated management
There is one Objective and two policies in this section of the NPS.
14.1
1316536.6
Objective C1 states: “To improve integrated management of
fresh water and the use and development of land in whole
catchments, including the interactions between fresh water,
land, associated ecosystems and the coastal environment”.
4
This is a key objective in relation to the Plan Change. I
discuss the implications of the Plan Change for the coastal
environment later in this statement when responding to
matters raised by Mr Ericksen.
15
16
14.2
Policy C1 states: “By every regional council managing fresh
water and land use and development in catchments in an
integrated and sustainable way, so as to avoid, remedy or
mitigate adverse effects, including cumulative effects”. I
consider this policy is relevant to the Plan Change in that the
Plan Change is an attempt to integrate management of the
TG Project (being a land use and development) with fresh
water management in particular catchments. The Plan
Change attempts to provide a path for reconciliation of what
might otherwise be considered as competing objectives and
policies.
14.3
Policy C2 states: “By every regional council making or
changing regional policy statements to the extent needed to
provide for the integrated management of the effects of the
use and development of land on fresh water, including
encouraging the co-ordination and sequencing of regional
and/or urban growth, land use and development and the
provision of infrastructure”. I consider the Plan Change to be
consistent with this policy. The TG Project is clearly
“infrastructure”, and the Plan Change will guide consideration
of the effects of the Project on freshwater.
Tangata whenua roles and interests
Objective D1 and Policy D1 both provide for the involvement of iwi
and hapu in relevant decision making. As noted in paragraphs 222
and 223 of my EIC, I understand the NZTA has consulted with
tangata whenua over many years, including in relation to the Plan
Change. I am also aware that the draft Memorandum of
Understanding between the NZTA and Ngati Toa includes provisions
for involvement of Iwi in stream diversions and reclamation activity,
including agreeing the design of stream, checking new stream
channels before waters are diverted and involvement if necessary
when waters are diverted.
Progressive implementation programme
The final section of the NPS contains one policy (E1) which applies
to the implementation by regional councils of a policy of the NPS. It
is notable that there is a staged process for implementation. Apart
from the policies which are directed to be changed under section 55,
there is an expectation that implementation of the policies will be
achieved by the end of 2014. If this is impracticable, and
considering each regional council has sometimes substantial but
often unrelated matters concerning water allocation and existing
degraded environments, each regional council can propose a
1316536.6
5
timeframe for full implementation by 2030. Greater Wellington
Regional Council (GWRC) will be able to comment on its programme
for implementing the NPS.
17
After considering the NPS for Freshwater Management as a whole, I
consider the Plan Change is consistent with it, and to the extent the
Plan Change attempts to reconcile policies relating to land use and
freshwater management, it may be a forerunner to future plan
changes to give effect to the NPS. I disagree with the evidence of
Kris Ericksen1 which suggests that the Plan Change must “give
effect” to the NPS. GWRC has a responsibility to ensure the
Regional Freshwater Plan as a whole gives effect to the NPS, in
accordance with Policy E1. I consider that any attempt to do this
through NZTA’s Plan Change would be outside the scope of the Plan
Change as notified, and would be better achieved by a holistic
review of the Regional Freshwater Plan as a whole.
EVIDENCE OF SUBMITTERS
Comments on evidence generally
I now turn to the evidence submitted to the Board for the
submitters. I have grouped my responses by subject rather than
evidence statement, as many issues are discussed by more than
one witness.
18
19
The bulk of this statement focuses on areas where I disagree with
the evidence for the submitters. However, I consider it valuable to
first note where our views are aligned. Firstly, none of the
witnesses for DOC, Forest and Bird or KCDC suggest the Plan
Change should be declined, or that offsetting as a concept should
not be pursued. None of them challenge the avoid, remedy,
mitigate, then offset framework. All witnesses agree that the Plan
Change must provide the best opportunities for managing and
protecting the values of affected streams.
20
There appears to be a perception by some of the witnesses that all
of the TG Project activities would be regulated by policy 4.2.33A on
its own, and therefore that the policy needs to be all encompassing.
My view is that the provisions inserted as a result of the Plan
Change will not be looked at in isolation when the Board comes to
consider the substantive applications. Rather, they will be part of
many relevant objectives and policies within the Freshwater Plan
and other statutory instruments that are to be considered. Policy
4.2.33A is designed to create an exception to Policies 4.2.10, 7.2.1
and 7.2.2 – but no other policies.
1
Paragraphs 6 and 44. In comparison, I agree with the approach suggested in the
evidence of Emily Thomson (paragraph 4.8).
1316536.6
6
21
Some of the evidence raises issues now which I consider are more
relevant to the substantive applications2. These issues would be
relevant if the Plan Change contained a permitted activity rule, but
the Plan Change does not alter in any way the discretion of the
Board who will consider the resource consent applications for the TG
Project. In my view, specific offsetting measures, or the practicality
of alternatives to reclamation (amongst other matters), can be dealt
with at that time.
“To the extent practicable”
Mr Ericksen3, and Dr Ussher4, discuss the phrase “to the extent
practicable” in the new Policy 4.2.33A. They suggest this test could
largely be decided on economic grounds, is too uncertain, and is
subject to interpretation. In my EIC I discussed this phrase and
noted similarities between it and the term “Best Practicable Option”
which is used in the RMA. Financial implications are one of three
criteria considered when determining whether the best practicable
option is being taken in relation to discharges or noise emissions.
22
23
I consider that a decision maker considering matters to which Policy
4.2.33A applies will be able to make a reasoned judgement about
whether avoidance is practicable, based on application detail and
evidence. The same would apply for remedy and mitigation should
the higher criteria in the policy not be able to be achieved.
24
I have considered whether in policy terms it would be better to
substitute the words “Best Practicable Option” for the term “to the
extent practicable”. However, I see difficulties with this as the
primary intent of the Plan Change is to address section 13 matters
such as reclamation, rather than discharges (although the new
Policy 4.2.33A would be one relevant policy for these matters).
25
In any event I consider that it will not be for an applicant to choose
whether the cascading management regime of avoid, remedy,
mitigate, then offset is correctly applied. Ultimately, that
judgement will rest with the decision maker. I disagree with the
evidence of Dr Ussher5 and Mr Ericksen6 that the phrase “to the
extent practicable” leaves a discretion to the NZTA.
2
See for example Mr Ericksen at paragraphs 77, 114 and 117, Dr Ussher at
paragraphs 49, 61, 65, Ms Kettles, Mr Jones and Ms Thomson at paragraphs 3.4
and 6.1.
3
Paragraph 5 and extensively at paragraphs 103 to 105.
4
Paragraph 68.5.
5
Paragraph 68.5.
6
Paragraph 5.
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7
Application of the Plan Change to all streams affected by the
TG Project
It is not clear from reading the evidence for the submitters that all
witnesses appreciate the benefits of the Plan Change for those
streams which are not listed in Appendix 2B. Dr Ussher’s evidence
concludes7 that “The Plan Change proposed by NZTA seeks to
enable significant adverse effects on natural values associated with
freshwater in areas where currently these are tightly constrained
under the Regional Freshwater Plan”.8
26
27
Firstly, I disagree that the Plan Change will enable “significant”
adverse effects – Policy 4.2.10 currently requires less than minor
effects, and there is some middle ground between “minor” and
“significant”. Secondly (and more importantly), the Regional
Freshwater Plan currently does not tightly constrain effects on the
natural character of Duck Creek, Te Puka Stream, or indeed any
stream not listed in Appendix 2B. For those streams the Plan
Change will introduce a more prescriptive management regime than
currently contained within the Plan.
28
It does not appear that the DOC witnesses are opposed to the
application of the Plan Change to streams which are not listed in
Appendix 2B. Mr Ericksen’s evidence does not suggest that Policy
4.2.33A should be restricted to the Appendix 2B streams.
29
Dr Bellingham, on behalf of the Royal Forest and Bird Protection
Society, states that he considers offsets need to be applied to any of
the streams affected, whether or not they appear in Appendix 2B.
Ms Warren’s evidence9 is that the DOC Freshwater Ecosystem data
appears to confirm Dr Keesing’s view that Appendix 2B does not
reflect the current values of streams affected by the Project.
30
Based on the advice of Dr Keesing, and as stated in my EIC, there is
also a certain practicality associated with having a management
regime for all streams affected by the implementation of the TG
Project which allows the studied values to be responded to,
regardless of specific categorisation in the Freshwater Plan.
7
Paragraph 72.
8
See also Emily Thomson’s evidence at paragraph 5.25 to 5.4.
9
Paragraph 90.
1316536.6
8
Precedent
Mr Ericksen at paragraphs 9 and 34 states that he disagrees with
the views in my EIC10 that the Plan Change will not create a
precedent.
31
32
Precedent would only be a concern if confirming the Plan Change
was going to lead to a flood of similar applications, which must be
decided on a similar basis. In relation to resource consents,
granting consent could set a precedent if an activity was not
sufficiently distinctive, so that other similar activities would also
need to be consented and over time this could undermine a district
or regional plan. This is very different to the situation here.
33
The Plan Change will not undermine the Regional Plan, but will
instead change the very provisions of the Plan itself. The First
Schedule of the Act allows for this to occur.
34
There is no legislative impediment to a project specific policy in any
event. Indeed in the District Plan context there are numerous
examples, such as structure plans and designations. I therefore still
consider that the Plan Change is a response to policy uncertainty
around the implementation of a major piece of public infrastructure
and would not necessarily lead to other similar plan changes
occurring. Even if that was to occur, I would not see it as
problematic, or a reason why this Plan Change should be refused.
Offsetting and the use of SEV
The evidence for DOC, as well as that of Emily Thomson, Dr Mark
Bellingham and Paula Warren, all discusses offsetting and the use of
SEV. These matters have been largely addressed in the rebuttal
statement of Dr Vaughan Keesing. The only additional comment I
will make is that policies 4.2.10, 7.2.1 and 7.2.2 address matters
such as natural character, amenity and recreation, as well as
ecology. Accordingly, I do not consider offsetting possibilities
should be confined to merely biodiversity (as Dr Ussher suggests) or
even ecology.
35
Integrated management - Coastal Marine Area and the
NZCPS
Mr Ericksen11, Dr Ussher12, Ms Kettles, Dr Bellingham13 and Ms
Warren14 all consider that the Plan Change does not address the
integrated management function of regional councils, and in
particular the impact on the Pauatahanui Inlet. There is concern that
36
10
Paragraphs 280-283.
11
Paragraphs 38-43 and 81-93.
12
Paragraph 47.
13
Paragraph 25.
14
Paragraphs 231-236.
1316536.6
9
the Plan Change documentation does not consider the effects on the
Coastal Marine Area (CMA).
37
I have already acknowledged in my EIC15 that the New Zealand
Coastal Policy Statement (NZCPS) is a relevant consideration for the
Plan Change insofar as there may be a possibility that contaminants
and more particularly sediment from earthworks could potentially
enter the CMA.
38
The reclamation activities themselves (which are the primary reason
for the Plan Change) and most of the Project itself are well removed
from the coastal environment. Dr Keesing’s rebuttal statement
refers to the work being undertaken to assess the potential effects
of sediment discharges on the Porirua Harbour (including
Pauatahanui Inlet). This will be provided to support the substantive
applications to come. Dr Keesing’s rebuttal statement also confirms
that his assessment of the streams affected by the TG Project was
carried out on a catchment-wide basis, and mindful of the
environment that the streams discharge in to.
39
In terms of Policy 4.2.33A, while I recognise that this is not
restricted solely to reclamation activities, it is specifically referenced
in the related policy 4.2.10 as well as consequentially in policies
7.2.1 and 7.2.2. Therefore, the potential effects of runoff from
earthworks on streams and the coastal environment that streams
ultimately end up in will be a key issue for the Board which
considers the substantive applications. That consideration will
include a holistic assessment of the relevant planning provisions
(including, but not limited to, Policy 4.2.33A).
40
I have considered whether Policy 4.2.33A should be limited to just
reclamations (including the associated discharges from reclamation
earthworks) and not the development of the entire TG Project. My
view is that this is not necessary as the policy, in conjunction with
other policies, can be a useful (although perhaps not strictly
necessary) guide where any such effects need to be avoided,
remedied, mitigated or offset.
41
I note that the Freshwater Plan does not specifically reference the
interface between the freshwater resource and the CMA and goes to
the extent of stating specifically at section 1.2 of the Freshwater
Plan that “The Plan is operative throughout the Wellington Region on
the landward side of the Coastal Marine Area”. I expect that this
will be an issue for the forthcoming review of the Regional Plans.
42
As noted in paragraph 144 of my EIC, it is for GWRC to determine
when its regional plans should be reviewed to “give effect” to the
15
Paragraphs 140-145.
1316536.6
10
NZCPS. I disagree with those witnesses16 who suggest this should
be achieved via this Plan Change. I confirm the opinion in my EIC
that there is nothing in the Plan Change which would detract from
the ability of the Freshwater Plan to give effect to the NZCPS, and
consider that is all that is required.
Proposed NPS on Indigenous Biodiversity
Mr Ericksen17 and Ms Thomson18 have commented on the reference
in my EIC to the Proposed NPS on Indigenous Biodiversity. Both
agree that this can have limited weight but have taken issue with
my observation that the cascade approach is a useful comparison.
My observation was just that - an observation, as the Plan Change
was publicly notified prior to the release of the Proposed NPS. I
certainly do not consider that it is appropriate to model policy on a
Proposed NPS which is still proposed, particularly in an area where
there is still substantial debate.
43
44
I also note that the whole issue of offsetting is being considered at a
national level in addition to the Proposed NPS. The DOC on 13 May
2011 called for tenders for a project to consider “Practical measures
to avoid and overcome systemic barriers to no net loss biodiversity”.
I am not familiar in detail with the tender but reference it purely to
outline the interest there is in this important part of environmental
policy. In any event I consider that the Plan Change is not
inconsistent with any of these related policy initiatives.
Interpretation of planning documents
Emily Thomson’s evidence
Ms Thomson’s evidence19 carries out an analysis of the Plan Change
against the objectives of the Freshwater Plan. While her analysis is
robust, in that it considers the Plan Change against the unchanged
objectives of the Plan, I do not agree with her conclusion in
paragraph 4.49 that “the existing policy 4.2.10 is more effective in
achieving the objectives of the Freshwater Plan”.
45
46
This is because the existing wording provides an absolute bar unless
the effects can be less than minor, and there is a potential conflict
with other plans and policies as I have outlined in my EIC. Policy
4.2.10 also needs to be assessed against the objectives that it is
grouped with, including Objective 4.1.4: “The natural character of
wetlands, and lakes and rivers and their margins, is preserved and
protected from inappropriate subdivision, use and development”
(emphasis added). This also links to Policy 7.2.1 where structures
for transportation and network utilities are defined as an appropriate
16
See for example Kris Ericksen at paragraphs 56 to 59.
17
Paragraph 51.
18
Paragraphs 4.9-4.12.
19
Paragraphs 4.13-4.15 and 4.28-4.50.
1316536.6
11
use. There is therefore nothing in any of the documents that
suggests the TG Project per se is inappropriate.
47
In relation to the other primary objectives of relevance in the
Freshwater Plan (4.1.5 and 4.1.6), Dr Keesing recognises the values
in the Appendix 2B streams but he considers that reclamations can
be achieved without undermining the overall ecological integrity of
the stream ecosystems.
Paula Warren’s evidence
In a similar manner, Ms Warren’s evidence contains several
paragraphs on policy interpretation.
48
I disagree with Ms Warren’s suggestion20 that the greater flexibility
introduced by the Plan Change will make the Plan less certain.
Firstly, I consider the certainty currently contained in Policy 4.2.10
is misleading. While the Policy suggests effects must be avoided, it
does not acknowledge the balancing of objectives and policies that
must occur and which could lead to an acceptance of effects. In my
view the Plan Change is more honest about that process, as well as
providing greater certainty as to how that process will occur.
49
Kris Ericksen’s evidence
Mr Ericksen’s evidence also contains an analysis of statutory
instruments. As with Ms Warren’s evidence, I do not propose to go
through this analysis in detail as I consider that my interpretation of
the policies and plans for the Plan Change was robust. However, I
would comment that, as is the case with much planning policy, there
are often conflicts and interpretational differences that need to be
reconciled through a Part 2 consideration as I have done in my EIC.
50
RESPONSE TO SUGGESTED CHANGES TO WORDING
51
Three of the submitters have offered amended wording or changes
to those in the Plan Change and as recommended in my EIC.
Mr Ericksen’s suggested amendments
At paragraph 110, Mr Ericksen states that Policy 4.2.33A would be
better placed in the natural values section of the Freshwater Plan,
(beside 4.2.10) rather than in the Use and Development section. I
do not agree because the new policy fits with the definition of what
minor adverse effects will be (in Policy 4.2.33A). In addition, the
policy is project specific and is related to the Use and Development
of the Freshwater resource, rather than being purely about natural
values.
52
53
In the following section of my evidence I have numbered in bold the
primary amendments, and then use those numbers to comment on
20
Paragraphs 69 to 76.
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12
them. I have not shown amendments using tracked changes
because it can be confusing given the many amendments proposed
by different people.
Suggested revised Proposed Policy 4.2.10A (to replace
proposed new Policy 4.2.33A)
To manage the effects of activities for the development of the
Transmission Gully Project (TGP) on natural values of water,
including freshwater and coastal water (1), by:
(a)
avoiding more than minor adverse effects (2);
(b)
where adverse effects cannot be avoided, ensuring
they are remedied;
(c)
where adverse effects cannot be avoided or remedied,
ensuring they are mitigated;
(d)
where adverse effects cannot be avoided, remedied or
mitigated, ensuring any residual adverse effects, that
are more than minor, are offset to achieve a no-netloss to indigenous biodiversity (3);
(e)
where the activities would affect the natural resources
supporting indigenous biodiversity that due to their
vulnerability or irreplaceability cannot be offset,
ensuring that more than minor adverse effects are
avoided (4).
Explanation
The policy acknowledges that the Transmission Gully Project
is important for enabling people and communities to provide
for their social economic and cultural wellbeing and for their
health and safety while recognising that some of the natural
resources affected by the Project contain high natural values
and biodiversity.
In this context, in terms of clause (d) offset addresses only
the residual adverse effects of the activity left after all
appropriate avoidance, remediation and mitigation has been
taken and means taking action to achieve no net loss and
preferably a net gain to indigenous biodiversity with respect
to species composition, habitat structure and ecosystem
function in a like for like manner and within the same
ecological catchments affected by the activity (5). The
biodiversity offset should secure outcomes that last at least
as long as the project’s impacts and preferably in perpetuity.
Management techniques to determine appropriate biodiversity
offset(s) may include the use of tools such as the
methodologies listed by the Department of Conservation and
1316536.6
13
Ministry for the Environment Business and Biodiversity Offsets
Programme (BOP) and those being applied in New Zealand
such as Habitat-Hectares or Condition Hectares offset models
may assist in evaluating the biodiversity offset required. (6)
In terms of clause (5) an assessment of those natural
resources that are vulnerable or irreplaceable that will be
affected by TGP should accompany resource consents. For
the TGP it is expected that this will include an assessment of
the effects of the activities on coastal marine areas (in
particular Pauatahanui Inlet) and those streams that are
affected by the project. (7)
54
I comment on each numbered component as follows:
54.1
(1) This proposed change is in my view unnecessary as the
introductory sentence to the policy relates to managing the
adverse effects of the Project in relation to matters that the
Regional Freshwater Plan has regard to. In particular I
consider that reference to coastal water is unnecessary as
effects on coastal water can be considered against the
provisions of the Regional Coastal Plan. I also disagree with
the narrowing of the policy to “natural values”. Policies
4.2.10, 7.2.1 and 7.2.2 also relate to amenity, natural
character and recreation, and I would be concerned that a
change to “natural values” would remove these matters from
consideration.
54.2
(2) Subclauses (b) to (e) include the words “ensuring”. I
have already outlined my view on the words “to the extent
practicable” in my EIC and previously in this rebuttal. I have
difficulty with the word “ensuring” as it is an absolute term
which suggests no exceptions will be allowed, but the
cascading framework clearly allows for exceptions. In my
view the words “to the extent practicable” are a more honest
reflection of this approach. .
54.3
(3) The words “no net loss to indigenous biodiversity” are
unnecessary for the reasons explained in the rebuttal
evidence of Dr Keesing. Firstly, SEV ensures “no net loss” –
so it is not needed in the policy itself. Secondly, any offset
should not be restricted to indigenous biodiversity.
54.4
(4) Subclause (e) introduces a concept not directly referred to
previously in the submission of the DOC. Be that as it may,
this clause effectively looks to a back stop21 based on
definitions of vulnerability or irreplaceability. The rebuttal
21
This issue is also raised in a question from the Board to GWRC in a letter dated
11 May 2011.
1316536.6
14
evidence of Dr Keesing is that this “stop” is not justified by
the stream values. I consider it unnecessary from a planning
perspective because if, after all the options are considered,
there is still an unacceptable level of effect, then it is the
prerogative of the decision maker to decline consent.
54.5
(5) The explanation seeks to codify no net loss and like for
like in relation to offsetting. Dr Keesing’s rebuttal evidence is
that this is unnecessary because it is already provided for by
SEV.
54.6
(6) Again Dr Keesing’s evidence comments on SEV and other
methods available to consider and calculate offset. He
disagrees with those proposed in DOC’s suggested revisions.
As stated in my EIC, this explanation is broad in the Plan
Change as notified and includes SEV as only a suggested tool.
Considering the continuing development of offsetting policy,
being more prescriptive as to other methods in an explanation
to the policy would in my view be unwise because it may
restrict the use of other methods that may be developed in
the future.
54.7
(7) I refer to my previous comments in relation to references
to the coastal marine area.
55
Therefore. I consider that none of the changes proposed are
superior to those already considered.
56
Mr Ericksen also proposes the introduction of two new definitions, of
“vulnerability” and “irreplaceability”. As I disagree with the
insertion of those words into the Policy, I do not consider the
definitions to be necessary.
57
Mr Ericksen has not suggested any changes to the amended Policies
4.2.10, 7.2.1 and 7.2.2.
Ms Thomson’s suggested amendments
Similarly, the evidence of Ms Thomson22also proposes some
amendments. As above, I quote her proposed wording below, and
number matters which are later discussed.
58
59
Ms Thomson suggests that Policy 4.2.10 be amended by inserting
the words “including its effects on the Horokiri, Ration and lower
Pauatahanui Streams” at the end. I do not consider the suggested
words change the meaning of the policy, and therefore agree with
the amendments.
22
Paragraphs 5.7-5.26.
1316536.6
15
60
In relation to Policy 4.2.33A, Ms Thomson suggests it reads as
follows:
To manage the adverse effects of the development of the
Transmission Gully Project, within the Horokiri, Ration and
lower Pauatahanui Streams (1) in accordance with the
following cascading management regime (2):
(1) Adverse effects are avoided to the fullest (3) extent
practicable;
(2) Adverse effects which cannot be avoided are remedied to
the fullest extent practicable;
(3) Adverse effects which cannot be avoided or remedied are
mitigated to the fullest extent practicable;
(4) Adverse effects which cannot practicably be avoided,
remedied or mitigated are offset. Offsetting must only be
considered as a last resort (in the event that avoiding,
remedying or mitigating adverse effects cannot be achieved),
and should aim to achieve no net loss, or preferably a net
gain, of the relevant value. (4)
Explanation: The Regional Council will place primary
emphasis on requiring the adverse effects of an activity to be
avoided, remedied or mitigated, in that order. (5) However,
the policy also provides that where an applicant clearly
establishes that it has investigated (6) these options and that
none of them (7) are practicable, it may be appropriate to
offset such effects.
In this context "offset" in clause (4) means taking action that
will measurably (8) offset any adverse effects, such as
enhancing amenity, ecological, or recreational values on or
adjacent to (9) the site. Tools such as the "Stream
Ecological Valuation" method may assist in evaluating the
ecological offset ratio, which, based on measured values, sets
the amount of offset required. Other ways of offsetting
adverse effects are indicated in the second, third and fourth
bullet points of Policy 4.2.36. Offsets should result in no net
loss, or preferably a net gain, of the relevant value. (10)
61
In relation to each of these matters:
61.1
1316536.6
(1) I do not agree to the suggested insertion of references to
Horokiri, Ration and lower Pauatahanui Streams, because the
intention is for the policy to apply to all streams affected by
the Project. The reasons for this are comprehensively
discussed in my EIC.
16
61.2
(2) I consider these amendments to be helpful clarifications
to the policy, and they link well with the changes the Mitchell
Partnership report proposed to the explanation and I accepted
as part of my EIC. The deletion of the words “which are no
more than minor” is not supported as I consider that these
words are necessary to link the policy to Policy 4.2.33 (which
defines when effects may be considered as minor).
61.3
(3) The suggested insertion of the word “fullest” in subclauses
(1) – (3) of policy 4.2.33A is not supported as I do not agree
that these words provide any greater clarity.
61.4
(4) and (10) For the reasons outlined in my EIC23 I do not
believe that a fuller explanation of offsetting is required.
61.5
(5) I do not consider these changes are necessary as they
merely restate the Policy.
61.6
(6) and (7) I consider that the words “an applicant clearly
establishes that it has investigated these options” are
unnecessary as it will be the decision maker that will
determine how clear the investigations have been.
61.7
(8) I do not agree with these changes. The word
“measurably” does not clarify the explanation and indeed may
confuse some readers of the Plan, as it is not a word
commonly used in the RMA context.
61.8
(9) I consider the words “or adjacent to” will not add clarity,
but instead may prompt debate about what constitutes the
site boundaries, and whether any particular area is
“adjacent”.
62
In relation to Policy 7.2.1, Ms Thomson suggests changes to the
final paragraph to again emphasise that in her view the policy
should only apply to the Appendix 2B streams. Her suggested
amendments to Policy 7.2.2 are for the same reasons. For the
reasons already outlined, I consider it appropriate that the Policies
apply to all streams affected by the Project.
63
Further, Ms Thomson considers that the final paragraphs of the
explanations to both Policy 7.2.1 and Policy 7.2.2 should be deleted
as she considers that they repeat the policy provisions. I do not
have strong views on this, but on balance consider they should stay
because they provide context.
64
Ms Thomson also considers that the definition of Transmission Gully
Project should be amended. I do not agree with her amendments
23
Paragraphs 290-291.
1316536.6
17
because, as outlined in my EIC, a new designation is proposed to be
sought which differs from the existing, and there are likely to be
ancillary but related matters that fall outside of the designation
footprint. I have however suggested a reference within the
definition to the map appended as Appendix 1 to my EIC, as this
was an oversight.
Changes suggested by Dr Bellingham
Dr Bellingham24 agrees with the general definition of the TG Project
but disagrees with the map as it does not define the “adverse
effects” footprint i.e. the catchments that may be affected. While I
appreciate his point, defining the adverse effects footprint is very
difficult, particularly when designations and resource consents have
not yet been sought. If the NZTA wishes to rely on the TG Project
definition it will need to convince the relevant decision-maker that
its provisions are met.
65
RECOMMENDED CHANGES TO WORDING
66
Based on the evidence, I suggest the Plan Change be amended as
follows (in all cases strike out and underlining show the differences
between existing Regional Plan text and new proposed text only,
and not the differences between that proposed in the Plan Change
originating documents or in the evidence of other witnesses. New
amendments which I support based on the evidence of the
submitter witnesses (and are therefore not in the Reasons for
Request document or my EIC) are shown in bold).
Policy 4.2.10
I suggest this Policy state:
67
To avoid adverse effects on wetlands, and lakes and rivers
and their margins, identified in Appendix 2 (Parts A and B),
(with the exception of the Transmission Gully Project and its
effects on the Horokiri, Ration and lower Pauatahanui
Streams where Policy 4.2.33A applies), when considering the
protection of their natural character from the adverse effects
of subdivision, use, and development. For the avoidance of
doubt Rule 50 applies to the Transmission Gully Project, in
relation to its effects on the Horokiri, Ration and lower
Pauatahanui Streams”.
68
I do not propose any further changes to the explanation to Policy
4.2.10, but continue to support the wording set out on page 24 of
the Reasons for Request document.
24
Paragraph 14.
1316536.6
18
69
Policy 4.2.33A
I suggest Policy 4.2.33A state:
4.2.33A
To manage adverse effects of the development
of the Transmission Gully Project, which are
more than minor, in accordance with the
following cascading management regime:
(1)
Adverse effects are avoided to the extent
practicable;
(2)
Adverse effects which cannot be avoided are
remedied to the extent practicable;
(3)
Adverse effects which cannot be avoided or
remedied are mitigated to the extent
practicable;
(4)
Adverse effects which cannot practicably be
avoided, remedied or mitigated are offset.
Explanation: This policy recognises that the Transmission
Gully Project is particularly important for enabling people and
communities to provide for their social, economic, and
cultural wellbeing and for their health and safety. Accordingly,
the adverse effects of aspects of the Project may be
acceptable, even though they cannot be completely avoided,
remedied, or mitigated. The policy creates a cascading
management regime for the avoidance, remedying, or
mitigation of adverse effects. However, the policy also
provides that where none of these options are practicable, it
may be appropriate to offset such effects.
In this context “offset” in clause (4) means taking action that
will offset any adverse effects such as enhancing amenity,
ecological, or recreational values on-site or elsewhere. Tools
such as the “Stream Ecological Valuation” method may assist
in evaluating the ecological offset ratio, which, based on
measured values, sets the amount of offset required. Other
ways of offsetting adverse effects are indicated in the second,
third and fourth bullet points of Policy 4.2.36.
70
Definition of Transmission Gully Project
I suggest this definition state:
“Transmission Gully Project” is a strategic transport route
shown on Plan [x] running from MacKays Crossing to
Linden and the term includes works in proximity that are
associated with the implementation of that project.
1316536.6
20
APPENDIX A
NATIONAL POLICY STATEMENT FOR FRESHWATER
MANAGEMENT
1316536.6
21
NATIONAL POLICY STATEMENT FOR FRESHWATER
MANAGEMENT 2011
Issued by notice in the Gazette on 12 May 2011
Contents
PREAMBLE
22
TITLE
25
COMMENCEMENT
25
INTERPRETATION
25
A. WATER QUALITY
Objective A1
Objective A2
26
26
26
B. WATER QUANTITY
Objective B1
Objective B2
Objective B3
Objective B4
28
28
28
28
28
C. INTEGRATED MANAGEMENT
Objective C1
30
30
D. TĀNGATA WHENUA ROLES AND INTERESTS
Objective D1
31
31
E. PROGRESSIVE IMPLEMENTATION PROGRAMME
32
1316536.6
22
PREAMBLE
Fresh water is essential to New Zealand’s economic, environmental,
cultural and social well-being. Fresh water gives our primary
production, tourism, and energy generation sectors their
competitive advantage in the global economy. Fresh water is highly
valued for its recreational aspects and it underpins important parts
of New Zealand’s biodiversity and natural heritage. Fresh water has
deep cultural meaning to all New Zealanders. Many of New
Zealand’s lakes, rivers and wetlands are iconic and well known
globally for their natural beauty and intrinsic values.
The Treaty of Waitangi (Te Tiriti o Waitangi) is the underlying
foundation of the Crown–iwi/hapū relationship with regard to
freshwater resources. Addressing tāngata whenua values and
interests across all of the well-beings, and including the involvement
of iwi and hapū in the overall management of fresh water, are key
to meeting obligations under the Treaty of Waitangi.
All New Zealanders have a common interest in ensuring the
country’s freshwater lakes, rivers, aquifers and wetlands are
managed wisely.
New Zealand faces challenges in managing our fresh water to
provide for all of the values that are important to New Zealanders.
The quality, health, availability and economic value of our fresh
waters are under threat. These challenges are likely to increase
over time due to the impacts of climate change.
To respond effectively to these challenges and issues we need to
have a good understanding of our freshwater resources, the threats
to them and provide a management framework that enables water
to contribute both to New Zealand’s economic growth and
environmental integrity and provides for the values that are
important to New Zealanders.
This national policy statement sets out objectives and policies that
direct local government to manage water in an integrated and
sustainable way, while providing for economic growth within set
water quantity and quality limits. The national policy statement is a
first step to improve freshwater management at a national level.
Setting enforceable quality and quantity limits is a key purpose of
this national policy statement. This is a fundamental step to
achieving environmental outcomes and creating the necessary
incentives to use fresh water efficiently, while providing certainty for
investment. Water quality and quantity limits must reflect local and
national values. The process for setting limits should be informed by
the best available information and scientific and socio-economic
knowledge.
1316536.6
23
Once limits are set, freshwater resources need to be allocated to
users, while providing the ability to transfer entitlements between
users so that we maximise the value we get from water. Where
water resources are over-allocated (in terms of quality and quantity)
to the point that national and local values are not met, we also need
to ensure that over-allocation is reduced over agreed timeframes.
Given the vital importance of freshwater resources to New Zealand
and New Zealanders, and in order to achieve the purpose of the
Resource Management Act 1991 (the Act), the Crown recognises
there is a particular need for clear central government policy to set
a national direction, though the management of the resource needs
to reflect the catchment-level variation between water bodies and
different demands on the resource across regions. This includes
managing land use and development activities that affect water so
that growth is achieved with a lower environmental footprint.
The New Zealand Coastal Policy Statement 2010 addresses issues
with water quality in the coastal environment. The management of
coastal water and fresh water requires an integrated and consistent
approach.
National values of fresh water
Water is valued for the following uses:

domestic drinking and washing water;

animal drinking water;

community water supply;

fire fighting;

electricity generation;

commercial and industrial processes;

irrigation;

recreational activities (including waka ama);

food production and harvesting eg, fish farms and
mahinga kai;

transport and access (including tauranga waka); and

cleaning, dilution and disposal of waste.
There are also values that relate to recognising and respecting fresh
water’s intrinsic values for: safeguarding the life-supporting capacity
1316536.6
24
of water and associated ecosystems; and sustaining its potential to
meet the reasonably foreseeable needs of future generations.
Examples of these values include:

the interdependency of the elements of the freshwater
cycle;

the natural form, character, functioning and natural
processes of water bodies and margins, including
natural flows, velocities, levels, variability and
connections;

the natural conditions of fresh water, free from
biological or chemical alterations resulting from human
activity, so that it is fit for all aspects of its intrinsic
values;

healthy ecosystem processes functioning naturally;

healthy ecosystems supporting the diversity of
indigenous species in sustainable populations;

cultural and traditional relationships of Māori with fresh
water;

historic heritage associations with fresh water; and

providing a sense of place for people and communities.
All the values in both lists are important national values of fresh
water.
Review
The Minister for the Environment intends to seek an independent
review of the implementation and effectiveness of this national
policy statement in achieving all its objectives and policies and in
achieving the purpose of the Act, no later than five years after it
comes into force. The Minister shall then consider the need to
review, change or revoke this national policy statement. Collection
of monitoring data to inform this review will begin at least two years
prior to the review.
This preamble may assist the interpretation of the national policy
statement.
1316536.6
25
TITLE
This national policy statement is the National Policy Statement for
Freshwater Management 2011.
COMMENCEMENT
This national policy statement will take effect on 1 July 2011.
INTERPRETATION
In this national policy statement:
“Efficient allocation” includes economic, technical and dynamic
efficiency.
“Environmental flows and/or levels” are a type of limit which
describes the amount of water in a body of fresh water (except
ponds and naturally ephemeral water bodies) which is required to
meet freshwater objectives. Environmental flows for rivers and
streams must include an allocation limit and a minimum flow (or
other flow/s). Environmental levels for other bodies of fresh water
must include an allocation limit and a minimum water level (or other
level/s).
“Freshwater objective” describes the intended environmental
outcome(s).
“Limit” is the maximum amount of resource use available, which
allows a freshwater objective to be met.
“Over-allocation” is the situation where the resource:

has been allocated to users beyond a limit; or

is being used to a point where a freshwater objective is
no longer being met.
This applies to both water quantity and quality.
“Outstanding freshwater bodies” are those water bodies with
outstanding values, including ecological, landscape, recreational and
spiritual values.
“Target” is a limit which must be met at a defined time in the
future. This meaning only applies in the context of over-allocation.
Terms given meaning in the Act have the meanings so given.
1316536.6
26
A. WATER QUALITY
Objective A1
To safeguard the life-supporting capacity, ecosystem processes and
indigenous species including their associated ecosystems of fresh
water, in sustainably managing the use and development of land,
and of discharges of contaminants.
Objective A2
The overall quality of fresh water within a region is maintained or
improved while:
(a)
protecting the quality of outstanding freshwater bodies;
(b)
protecting the significant values of wetlands; and
(c)
improving the quality of fresh water in water bodies
that have been degraded by human activities to the
point of being over-allocated.
Policy A1
By every regional council making or changing regional plans to the
extent needed to ensure the plans:
(a)
(b)
establish freshwater objectives and set freshwater
quality limits for all bodies of fresh water in their
regions to give effect to the objectives in this national
policy statement, having regard to at least the
following:
(i)
the reasonably foreseeable impacts of climate
change; and
(ii)
the connection between water bodies; and
establish methods (including rules) to avoid overallocation.
Policy A2
Where water bodies do not meet the freshwater objectives made
pursuant to Policy A1, every regional council is to specify targets
and implement methods (either or both regulatory and nonregulatory) to assist the improvement of water quality in the water
bodies, to meet those targets, and within a defined timeframe.
Policy A3
By regional councils:
1316536.6
27
(a)
imposing conditions on discharge permits to ensure the
limits and targets specified pursuant to Policy A1 and
Policy A2 can be met and
(b)
where permissible, making rules requiring the adoption
of the best practicable option to prevent or minimise
any actual or likely adverse effect on the environment
of any discharge of a contaminant into fresh water, or
onto or into land in circumstances that may result in
that contaminant (or, as a result of any natural process
from the discharge of that contaminant, any other
contaminant) entering fresh water.
Policy A4 and direction (under section 55) to regional
councils
By every regional council amending regional plans (without using
the process in Schedule 1) to the extent needed to ensure the plans
include the following policy to apply until any changes under
Schedule 1 to give effect to Policy A1 and Policy A2 (freshwater
quality limits and targets) have become operative:
“1. When considering any application for a discharge the consent
authority must have regard to the following matters:
a. the extent to which the discharge would avoid contamination
that will have an adverse effect on the life-supporting capacity of
fresh water including on any ecosystem associated with fresh
water; and
b. the extent to which it is feasible and dependable that any more
than minor adverse effect on fresh water, and on any ecosystem
associated with fresh water, resulting from the discharge would
be avoided.
2. This policy applies to the following discharges (including a diffuse
discharge by any person or animal):
a. a new discharge or
b. change or increase in any discharge –
of any contaminant into fresh water, or onto or into land in
circumstances that may result in that contaminant (or, as a result of
any natural process from the discharge of that contaminant, any
other contaminant) entering fresh water.
3. This policy does not apply to any application for consent first
lodged before the National Policy Statement for Freshwater
Management takes effect on 1 July 2011.”
1316536.6
28
B. Water quantity
Objective B1
To safeguard the life-supporting capacity, ecosystem processes and
indigenous species including their associated ecosystems of fresh
water, in sustainably managing the taking, using, damming, or
diverting of fresh water.
Objective B2
To avoid any further over-allocation of fresh water and phase out
existing over-allocation.
Objective B3
To improve and maximise the efficient allocation and efficient use of
water.
Objective B4
To protect significant values of wetlands.
Policy B1
By every regional council making or changing regional plans to the
extent needed to ensure the plans establish freshwater objectives
and set environmental flows and/or levels for all bodies of fresh
water in its region (except ponds and naturally ephemeral water
bodies) to give effect to the objectives in this national policy
statement, having regard to at least the following:
(a)
the reasonably foreseeable impacts of climate change
(b)
the connection between water bodies.
Policy B2
By every regional council making or changing regional plans to the
extent needed to provide for the efficient allocation of fresh water to
activities, within the limits set to give effect to Policy B1.
Policy B3
By every regional council making or changing regional plans to the
extent needed to ensure the plans state criteria by which
applications for approval of transfers of water take permits are to be
decided, including to improve and maximise the efficient allocation
of water.
Policy B4
By every regional council identifying methods in regional plans to
encourage the efficient use of water.
Policy B5
By every regional council ensuring that no decision will likely result
in future over-allocation – including managing fresh water so that
1316536.6
29
the aggregate of all amounts of fresh water in a water body that are
authorised to be taken, used, dammed or diverted – does not overallocate the water in the water body.
Policy B6
By every regional council setting a defined timeframe and methods
in regional plans by which over-allocation must be phased out,
including by reviewing water permits and consents to help ensure
the total amount of water allocated in the water body is reduced to
the level set to give effect to Policy B1.
Policy B7 and direction (under section 55) to regional councils
By every regional council amending regional plans (without using
the process in Schedule 1) to the extent needed to ensure the plans
include the following policy to apply until any changes under
Schedule 1 to give effect to Policy B1 (allocation limits), Policy B2
(allocation), and Policy B6 (over-allocation) have become operative:
“1.
When considering any application the consent authority must
have regard to the following matters:
a. the extent to which the change would adversely affect
safeguarding the life-supporting capacity of fresh water
and of any associated ecosystem and
b. the extent to which it is feasible and dependable that
any adverse effect on the life-supporting capacity of
fresh water and of any associated ecosystem resulting
from the change would be avoided.
2.
This policy applies to:
a. any new activity and
b. any change in the character, intensity or scale of any
established activity –
that involves any taking, using, damming or diverting of
fresh water or draining of any wetland which is likely to
result in any more than minor adverse change in the natural
variability of flows or level of any fresh water, compared to
that which immediately preceded the commencement of the
new activity or the change in the established activity (or in
the case of a change in an intermittent or seasonal activity,
compared to that on the last occasion on which the activity
was carried out).
3.
1316536.6
This policy does not apply to any application for consent first
lodged before the National Policy Statement for Freshwater
Management takes effect on 1 July 2011.”
30
C. INTEGRATED MANAGEMENT
Objective C1
To improve integrated management of fresh water and the use and
development of land in whole catchments, including the interactions
between fresh water, land, associated ecosystems and the coastal
environment.
Policy C1
By every regional council managing fresh water and land use and
development in catchments in an integrated and sustainable way, so
as to avoid, remedy or mitigate adverse effects, including
cumulative effects.
Policy C2
By every regional council making or changing regional policy
statements to the extent needed to provide for the integrated
management of the effects of the use and development of land on
fresh water, including encouraging the co-ordination and sequencing
of regional and/or urban growth, land use and development and the
provision of infrastructure.
1316536.6
31
D. TĀNGATA WHENUA ROLES AND INTERESTS
Objective D1
To provide for the involvement of iwi and hapū, and to ensure that
tāngata whenua values and interests are identified and reflected in
the management of fresh water including associated ecosystems,
and decision-making regarding freshwater planning, including on
how all other objectives of this national policy statement are given
effect to.
Policy D1
Local authorities shall take reasonable steps to:
1316536.6
(a)
involve iwi and hapū in the management of fresh water
and freshwater ecosystems in the region
(b)
work with iwi and hapū to identify tāngata whenua
values and interests in fresh water and freshwater
ecosystems in the region and
(c)
reflect tāngata whenua values and interests in the
management of, and decision-making regarding, fresh
water and freshwater ecosystems in the region.
32
E. PROGRESSIVE IMPLEMENTATION PROGRAMME
Policy E1
(a)
1316536.6
This policy applies to the implementation by a regional
council of a policy of this national policy statement.
(b)
Every regional council is to implement the policy as
promptly as is reasonable in the circumstances, and so
it is fully completed by no later than 31 December
2030.
(c)
Where a regional council is satisfied that it is
impracticable for it to complete implementation of a
policy fully by 31 December 2014, the council may
implement it by a programme of defined time-limited
stages by which it is to be fully implemented by
31 December 2030.
(d)
Any programme of time-limited stages is to be formally
adopted by the council within 18 months of the date of
gazetting of this national policy statement, and publicly
notified.
(e)
Where a regional council has adopted a programme of
staged implementation, it is to publicly report, in every
year, on the extent to which the programme has been
implemented.